compact of his ancestors. And why then hath not his son, by the same reason, the same liberty, though he be born any where else?
OF CIVIL GOVERNMENT. 291 Since -the power that a father hath naturally over his children, is the same, wherever they be born, and the ties of natural obligations are not bounded by the positive limits of kingdoms and commonwealths.
§. 119. Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man's consent, to make him subject to the laws of any government. There is a common distinction of an express and tacit consent, which will concern our present case. Nobody doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a sub- ject of that government. The difficulty is, what ought to be looked upon as a tacit con- sent, and how far it binds, i. e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely 292 OF CIVIL GOVERNMENT.
on the highway; and in effect, it reaches as fai as the very being of any one within the territo- ries of that government.
§. 120. To understand this the better, it is fit to consider, that every man, when he at first incorporates himself into any common- wealth, he, by his uniting himself thereunto, annexes also, and submits to the community, those posssessions, which he has, or shall acquire, that do not already belong to any other government: for it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is a subject. By the same act therefore, whereby any one unites his person, which was before free, to any common- wealth; by the same he unites his possessions, which were before free, to it also; and they become, both of them, person and possession, subject to the government and dominion of that commonwealth, as long as it hath a being. Whoever therefore, from thenceforth, by inhe- ritance, purchase, permission, or otherways, enjoys any part of the land, so annexed to, and under the government of that commonwealth, must take it with the condition it is under; that is, of submitting to the government of the com- OF CIVIL GOVERNMENT. 293 ■momvealth, under whose jurisdiction it is, as far forth as any subject of it.
§. 121. But since the government has a di- rect jurisdiction only over the land, and reaches the possessor of it, (before he has actually in- corporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed: whereas, he that has once, by actual agreement, and any express declaration, given his consent to be of any commonwealth, is perpetually and indispensibly obliged to be, and remain unalterably a subject to it, and can never be again in the liberty of the state of nature; unless, by any calamity, the govern- ment he was under comes to be dissolved; or else by some public act cuts him off from being any longer a member of it.
§. 122. But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man member of that society: this is only a local protection and homage due to and from all 294 OF CIVIL GOVERNMENT.
those, who, not being in a state of war, come within the territories belonging' to any govern- ment, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that commonwealth, than it would make a man a subject to another, in whose family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the laws, and submit to the go- vernment he found there. And thus we see, that foreigners, by living all their lives under another government, and enjoying the privi- leges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison; yet do not thereby come to be subjects or mem- bers of that commonwealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that which I think concerning the beginning of political societies, and that consent which makes any one a member of any commonwealth.
CHAPTER IX.
Of the Ends of Political Society and Government.
%. 123. If man in the state of nature be so free, as has been said; if he be absolute lord OF CIVIL GOVERNMENT. 295 of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the domi- nion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and con- stantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, to have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.
%. 124. The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their properly. To which in the state of nature there are many things wanting.
First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all con- 296 OF CIVIL GOVERNMENT.
troversies between them: for though the law of nature be plain and intelligible to all rational creatures; yet men being biassed by their in- terest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding to them in the application of it to their parti- cular cases.
§. 125. Secondly, In the state of nature there wants a known unci indifferent judge, with authority to determine all differences according to the established law: for every one in that state being both judge and executioner of the law of nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and uncon- cernedness, to make them to remiss in other men's.
§. 126. Thirdly, In the state of nature there often wants poiuer to back and support the sen- tence when right, and to give it due execution. They who by any injustice offended, will seldom fail, where they are able, by force to make good their injustice; such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it.
<§. 127. Thus mankind, notwithstanding all the privileges of the state of nature, being but in an ill condition, while they remain in it, are quickly driven into society. Hence it comes to pass, that we seldom find any number of OF CIVIL GOVERNMENT. 297 men live any time together in this state. The inconveniencies that they are therein exposed to by the irregular and uncertain exercise of the power every man has of punishing the trans- gressions of others, make them take sanctuary under the established laws of government, and therein seek the preservation of their property. It is this makes them so willingly give up every one his single power of punishing, to be exer- cised by such alone, as shall be appointed to it amongst them; and by such rules as the com- munity, or those authorized by them to that purpose, shall agree on. And in this we have the original right and rise of both the legislative and executive poiver, as well as of the govern- ments and societies themselves.
§. 128. For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.
The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature: by which law, common to them all, he and all the rest of mankind are one community, make up one society, distinct from all other creatures. And were it not for the corruption and vitiousness of degenerate men, there would be no need of any other; no necessity that men should sepa- rate from this great and natural community, and by positive agreements combine into smaller and divided associations.
The other power a man has in the state of 298 OF CIVIL GOVERNMENT.
nature, is the power to punish the crimes com- mitted against that law. Both these he gives up, when he joins in a private, if I may so call it, or particular politic society, and incorporates into any commonwealth, separate from the rest of mankind.
§. 129. The first power, viz. of doing whatso- ever he thought for the preservation of himself, and the rest of mankind, he gives up to be regu- lated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature.
§. 130. Secondly, The power of punishing he wholly gives up, and engages his natural force, (which he might before employ in the execution of the law of nature, by his own single authority, as he thought fit) to assist the executive power of the society, as the law thereof shall require: for being now in a new state, wherein he is to enjoy many conveniencies from the labour, assistance, and society of others in the same community, as well as protection from its whole strength; he is to part also with as much of his natural liberty, in providing for himself, as the good prosperity, and safety of the society shall re- quire; which is not only necessary, but just, since the other members of the society do the like.
§. 131. But though men, when they enter into society, give up the equality, liberty, and OF CIVIL GOVERNMENT. 299 executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend far I her than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. And so whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laivs, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people.
300 OF CIVIL GOVERNMENT.
CHAPTER X.
Of the Forms of a Commonwealth.
%. 132. The majority having, as has been shewed, upon men's first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing: and then the form of the govern- ment is a perfect democracy: or else may put the power of making laws into the hands of a few select men, and their heirs or successors; and then it is an oligarchy: or else into the hands of one man, and then it is a monarchy: if to him and his heirs, it is an hereditary monarchy: if to him only for life, but upon his death the power only of nominating a successor to return to them an elective monarchy. And so accordingly of these the community may make compounded and mixed forms of govern- ment, as they think good. And if the legisla- tive power be at first given by the majority to one or more persons only for their lives, or any limited time, and then the supreme power to revert to them again; when it is so reverted, the community may dispose of it again anew into what hands they please, and so constitute a new form of government: for the form of goverment depending upon the placing the su- OF CIVIL GOVERNMENT 301 preme power, which is the legislative, it being impossible to conceive that an inferior power should prescribe to a superior, or any but the supreme make laws, according1 as the power of making laws is placed, such is the form of the commonwealth.
§. 133. By commonwealth, I must be under- stood all along to mean, not a democracy, or any form of government, but any independent community, which the Latins signified by the word civitas, to which the word which best answers in our language, is commonwealth, and most properly expresses such a society of men, which community or city in English does not; for there may be subordinate communities in a government; and city amongst us has a quite different notion from commonwealth: and therefore to avoid ambiguity, I crave leave to use the word commonwealth in that sense, in which I find it used by king James the first; and I take it to be its genuine signification; which if any body dislike, I consent with him to change it for a better.
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 302 OF CIVIL GOVERNMENT.
that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power: as the first and funda- mental 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 common- wealth, but sacred and unalterable in the hands where the community have once placed it: nor can any edict of any body 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 no body can have a power to make laws, but by their own consent, and by authority received * The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same intire 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 personnally re- ceived 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 there- fore which public approbation hath not made so. Hooker's Eccl. Pol. I. i. sect. 10. Of this point therefore we are to note, that sith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utter- ly without our consent, we could in such sort be at no man's OF CIVIL GOVERNMENT..303 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 pur- suant 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.
\. 135. Though the legislative, whether placed in one or more, whether it be always in being, or or only by intervals, though it be the supreme power in every commonwealth; yet, First, It is not, nor can possibly be abso- lutely 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 up to the community: for no body can transfer to another more power than he has in command ment 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 so ever, are available bv consent. Ibid.
304 OF CIVIL GOVERNMENT.
himself; and no body has an absolute arbitrary power over himself, or over any other, to de- stroy his own life, or take away the life or pro- perty 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 legis- lative 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, * Two foundations there are which bear up public socie- ties; 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 common-weal, 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 poli- tic, ordained for external order and regiment amongst men, are never framed as they should be, unless presuming tire 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. Hookers Eccl. Pol. L i. sect. 10.
OF CIVIL GOVERNMENT. 305 enslave, or designedly to impoverish the sub- jects. 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 inforce 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 funda- mental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
§. 136. Secondly, * The legislative, or su- preme 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 authorized judges: for the law of nature being unwritten, and so no where to be found but in the minds of men, they who • 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 s Eccl. Pol. I. hi. sect. 9.
To constrain men to any thing inconvenient doth seem unreasonable. Ibid. I. i. sect. 10.
X 300 OF CIVIL GOVERNMENT.
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 ought, 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 to punish delinquents. To avoid these inconve- niencies, 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 pro- perties, 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 which 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 de- clared laws, or else their peace, quiet, and pro- perty will still be at the same uncertainty, as it was in the state of nature.
§. 137. Absolute arbitrary power, or govern- ing 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 OF CIVIL GOVERNMENT. 307 their lives, liberties and fortunes, and by slated 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 arbitrary 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 suppo- sing 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, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 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