Chapter XI
Of the Extent of the Legislative Power
134. THE great end of men's entering into society being the
enjoyment of their properties in peace and safety, and the great instrument and
means of that being the laws established in that society, the first and
fundamental positive law of all commonwealths is the establishing of the
legislative power, as the first and fundamental natural law which is to govern
even the legislative. Itself is the preservation of the society and (as far as
will consist with the public good) of every person in it. This legislative is
not only the supreme power of the commonwealth, but sacred and unalterable in
the hands where the community have once placed it. Nor can any edict of anybody
else, in what form soever conceived, or by what power soever backed, have the
force and obligation of a law which has not its sanction from that legislative
which the public has chosen and appointed; for without this the law could not
have that which is absolutely necessary to its being a law, the consent of the
society, over whom nobody can have a power to make laws* but by their
own consent and by authority received from them; and therefore all the
obedience, which by the most solemn ties any one can be obliged to pay,
ultimately terminates in this supreme power, and is directed by those laws which
it enacts. Nor can any oaths to any foreign power whatsoever, or any domestic
subordinate power, discharge any member of the society from his obedience to the
legislative, acting pursuant to their trust, nor oblige him to any obedience
contrary to the laws so enacted or farther than they do allow, it being
ridiculous to imagine one can be tied ultimately to obey any power in the
society which is not the supreme.
* "The lawful power of making laws to command whole politic
societies of men, belonging so properly unto the same entire societies, that for
any prince or potentate, of what kind soever upon earth, to exercise the same of
himself, and not by express commission immediately and personally received from
God, or else by authority derived at the first from their consent, upon whose
persons they impose laws, it is no better than mere tyranny. Laws they are not,
therefore, which public approbation hath not made so." Hooker, ibid.
10.
"Of this point, therefore, we are to note that such men
naturally have no full and perfect power to command whole politic multitudes of
men, therefore utterly without our consent we could in such sort be at no man's
commandment living. And to be commanded, we do consent when that society,
whereof we be a part, hath at any time before consented, without revoking the
same after by the like universal agreement.
"Laws therefore human, of
what kind soever, are available by consent." Hooker, Ibid.
135. Though the legislative, whether placed in one or more,
whether it be always in being or only by intervals, though it be the supreme
power in every commonwealth, yet, first, it is not, nor can possibly be,
absolutely arbitrary over the lives and fortunes of the people. For it being but
the joint power of every member of the society given up to that person or
assembly which is legislator, it can be no more than those persons had in a
state of Nature before they entered into society, and gave it up to the
community. For nobody can transfer to another more power than he has in himself,
and nobody has an absolute arbitrary power over himself, or over any other, to
destroy his own life, or take away the life or property of another. A man, as
has been proved, cannot subject himself to the arbitrary power of another; and
having, in the state of Nature, no arbitrary power over the life, liberty, or
possession of another, but only so much as the law of Nature gave him for the
preservation of himself and the rest of mankind, this is all he doth, or can
give up to the commonwealth, and by it to the legislative power, so that the
legislative can have no more than this. Their power in the utmost bounds of it
is limited to the public good of the society.* It is a power that
hath no other end but preservation, and therefore can never have a right to
destroy, enslave, or designedly to impoverish the subjects; the obligations of
the law of Nature cease not in society, but only in many cases are drawn closer,
and have, by human laws, known penalties annexed to them to enforce their
observation. Thus the law of Nature stands as an eternal rule to all men,
legislators as well as others. The rules that they make for, other men's actions
must, as well as their own and other men's actions, be conformable to the law of
Nature- i.e., to the will of God, of which that is a declaration, and the
fundamental law of Nature being the preservation of mankind, no human sanction
can be good or valid against it.
* "Two foundations there are which bear up public societies; the
one a natural inclination whereby all men desire sociable life and fellowship;
the other an order, expressly or secretly agreed upon, touching the manner of
their union in living together. The latter is that which we call the law of a
commonweal, the very soul of a politic body, the parts whereof are by law
animated, held together, and set on work in such actions as the common good
requireth. Laws politic, ordained for external order and regimen amongst men,
are never framed as they should be, unless presuming the will of man to be
inwardly obstinate, rebellious, and averse from all obedience to the sacred laws
of his nature; in a word, unless presuming man to be in regard of his depraved
mind little better than a wild beast, they do accordingly provide
notwithstanding, so to frame his outward actions, that they be no hindrance unto
the common good, for which societies are instituted. Unless they do this they
are not perfect." Hooker, Eccl. Pol. i. 10.
136. Secondly, the legislative or supreme authority
cannot assume to itself a power to rule by extemporary arbitrary decrees, but is
bound to dispense justice and decide the rights of the subject by promulgated
standing laws,* and known authorised judges. For the law of Nature being
unwritten, and so nowhere to be found but in the minds of men, they who, through
passion or interest, shall miscite or misapply it, cannot so easily be convinced
of their mistake where there is no established judge; and so it serves not as it
aught, to determine the rights and fence the properties of those that live under
it, especially where every one is judge, interpreter, and executioner of it too,
and that in his own case; and he that has right on his side, having ordinarily
but his own single strength, hath not force enough to defend himself from
injuries or punish delinquents. To avoid these inconveniencies which disorder
men's properties in the state of Nature, men unite into societies that they may
have the united strength of the whole society to secure and defend their
properties, and may have standing rules to bound it by which every one may know
what is his. To this end it is that men give up all their natural power to the
society they enter into, and the community put the legislative power into such
hands as they think fit, with this trust, that they shall be governed by
declared laws, or else their peace, quiet, and property will still be at the
same uncertainty as it was in the state of Nature.
* "Human laws are measures in respect of men whose actions they must direct,
howbeit such measures they are as have also their higher rules to be measured
by, which rules are two- the law of God and the law of Nature; so that laws
human must be made according to the general laws of Nature, and without
contradiction to any positive law of Scripture, otherwise they are ill made."
Hooker, Eccl. Pol. iii. 9.
"To constrain men to anything
inconvenient doth seem unreasonable." Ibid. i. 10.
137. Absolute arbitrary power, or governing without settled
standing laws, can neither of them consist with the ends of society and
government, which men would not quit the freedom of the state of Nature for, and
tie themselves up under, were it not to preserve their lives, liberties, and
fortunes, and by stated rules of right and property to secure their peace and
quiet. It cannot be supposed that they should intend, had they a power so to do,
to give any one or more an absolute arbitrary power over their persons and
estates, and put a force into the magistrate's hand to execute his unlimited
will arbitrarily upon them; this were to put themselves into a worse condition
than the state of Nature, wherein they had a liberty to defend their right
against the injuries of others, and were upon equal terms of force to maintain
it, whether invaded by a single man or many in combination. Whereas by supposing
they have given up themselves to the absolute arbitrary power and will of a
legislator, they have disarmed themselves, and armed him to make a prey of them
when he pleases; he being in a much worse condition that is exposed to the
arbitrary power of one man who has the command of a hundred thousand than he
that is exposed to the arbitrary power of a hundred thousand single men, nobody
being secure, that his will who has such a command is better than that of other
men, though his force be a hundred thousand times stronger. And, therefore,
whatever form the commonwealth is under, the ruling power ought to govern by
declared and received laws, and not by extemporary dictates and undetermined
resolutions, for then mankind will be in a far worse condition than in the state
of Nature if they shall have armed one or a few men with the joint power of a
multitude, to force them to obey at pleasure the exorbitant and unlimited
decrees of their sudden thoughts, or unrestrained, and till that moment, unknown
wills, without having any measures set down which may guide and justify their
actions. For all the power the government has, being only for the good of the
society, as it ought not to be arbitrary and at pleasure, so it ought to be
exercised by established and promulgated laws, that both the people may know
their duty, and be safe and secure within the limits of the law, and the rulers,
too, kept within their due bounds, and not be tempted by the power they have in
their hands to employ it to purposes, and by such measures as they would not
have known, and own not willingly.
138. Thirdly, the supreme power cannot take from any man
any part of his property without his own consent. For the preservation of
property being the end of government, and that for which men enter into society,
it necessarily supposes and requires that the people should have property,
without which they must be supposed to lose that by entering into society which
was the end for which they entered into it; too gross an absurdity for any man
to own. Men, therefore, in society having property, they have such a right to
the goods, which by the law of the community are theirs, that nobody hath a
right to take them, or any part of them, from them without their own consent;
without this they have no property at all. For I have truly no property in that
which another can by right take from me when he pleases against my consent.
Hence it is a mistake to think that the supreme or legislative power of any
commonwealth can do what it will, and dispose of the estates of the subject
arbitrarily, or take any part of them at pleasure. This is not much to be feared
in governments where the legislative consists wholly or in part in assemblies
which are variable, whose members upon the dissolution of the assembly are
subjects under the common laws of their country, equally with the rest. But in
governments where the legislative is in one lasting assembly, always in being,
or in one man as in absolute monarchies, there is danger still, that they will
think themselves to have a distinct interest from the rest of the community, and
so will be apt to increase their own riches and power by taking what they think
fit from the people. For a man's property is not at all secure, though there be
good and equitable laws to set the bounds of it between him and his
fellow-subjects, if he who commands those subjects have power to take from any
private man what part he pleases of his property, and use and dispose of it as
he thinks good.
139. But government, into whosesoever hands it is put,
being as I have before shown, entrusted with this condition, and for this end,
that men might have and secure their properties, the prince or senate, however
it may have power to make laws for the regulating of property between the
subjects one amongst another, yet can never have a power to take to themselves
the whole, or any part of the subjects' property, without their own consent; for
this would be in effect to leave them no property at all. And to let us see that
even absolute power, where it is necessary, is not arbitrary by being absolute,
but is still limited by that reason and confined to those ends which required it
in some cases to be absolute, we need look no farther than the common practice
of martial discipline. For the preservation of the army, and in it of the whole
commonwealth, requires an absolute obedience to the command of every superior
officer, and it is justly death to disobey or dispute the most dangerous or
unreasonable of them; but yet we see that neither the sergeant that could
command a soldier to march up to the mouth of a cannon, or stand in a breach
where he is almost sure to perish, can command that soldier to give him one
penny of his money; nor the general that can condemn him to death for deserting
his post, or not obeying the most desperate orders, cannot yet with all his
absolute power of life and death dispose of one farthing of that soldier's
estate, or seize one jot of his goods; whom yet he can command anything, and
hang for the least disobedience. Because such a blind obedience is necessary to
that end for which the commander has his power- viz., the preservation
of the rest, but the disposing of his goods has nothing to do with it.
140. It is true governments cannot be supported without
great charge, and it is fit every one who enjoys his share of the protection
should pay out of his estate his proportion for the maintenance of it. But still
it must be with his own consent- i.e., the consent of the majority,
giving it either by themselves or their representatives chosen by them; for if
any one shall claim a power to lay and levy taxes on the people by his own
authority, and without such consent of the people, he thereby invades the
fundamental law of property, and subverts the end of government. For what
property have I in that which another may by right take when he pleases to
himself?
141. Fourthly. The legislative cannot transfer the power
of making laws to any other hands, for it being but a delegated power from the
people, they who have it cannot pass it over to others. The people alone can
appoint the form of the commonwealth, which is by constituting the legislative,
and appointing in whose hands that shall be. And when the people have said,
"We will submit, and be governed by laws made by such men, and in such
forms," nobody else can say other men shall make laws for them; nor can
they be bound by any laws but such as are enacted by those whom they have chosen
and authorised to make laws for them.
142. These are the bounds which the trust that is put in
them by the society and the law of God and Nature have set to the legislative
power of every commonwealth, in all forms of government. First: They
are to govern by promulgated established laws, not to be varied in particular
cases, but to have one rule for rich and poor, for the favourite at Court, and
the countryman at plough. Secondly: These laws also ought to be
designed for no other end ultimately but the good of the people.
Thirdly: They must not raise taxes on the property of the people
without the consent of the people given by themselves or their deputies. And
this properly concerns only such governments where the legislative is always in
being, or at least where the people have not reserved any part of the
legislative to deputies, to be from time to time chosen by themselves.
Fourthly: Legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the people have.
Chapter 12