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armed one, or a few men with the joint power of a multitude, to force them to obey at plea- sure 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 esta- blished 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 bounds, and not be tempted, by the power they have in their hands, to employ it to such 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 neces- sarily 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 their sub- OF CIVIL GOVERNMENT. 309 stance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, wich 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 com- mon 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 whatsoever hands it is put, being, as I have before shewed, 310 OF CIVIL GOVERNMENT.
intrusted with this condition, and for this end, that men might have and secure their proper- ties; 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 sub- jects property, without their own consent: for this would be in effect to leave them no pro- perty 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 preser- vation 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 serjeant, 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 sol- dier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can 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 com- OF CIVIL GOVERNMENT..'ill maud any thing-, and hang for the least dis- obedience; because such a blind obedience is necessary to that end, for which the com- mander 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 lit every one who enjoys his share of the protec- tion 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 to rules, and be governed by laws made by such men, and in such forms, no bodv else can say other men 312 OF CIVIL GOVERNMENT.
shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and autho- rized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laivs, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
§. 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 legis- lative power of every commonwealth, in all forms of government.
First, they are to govern by promulgated established laics, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.
Secondly, These laws also ought to be de- signed 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 govern- ments, 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 bv themselves.
OF CIVIL GOVERNMENT. 313 Fourthly, the legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.
CHAPTER XII.
Of the Legislative, Executive, and Federative Power of the Commonwealth.
§. 143. The legislative power is that, which has a right to direct how the force of the com- monwealth shall be employed for preserving the community and members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time; therefore there is no need, that the legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making- laws, to have also in their hands the power to execute them, whereby they may exempt them- selves from obedience to the laws they make, and suit the law, both in its making, and execu- tion, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government: therefore in well- ordered commonwealths, where the good of the whole is so considered, as it ought, the 314 OF CIVIL GOVERNMENT.
legislative power is put into the hands of divers persons, who duly assembled, have by them- selves, or jointly with others, a power to make laws, which when they have done, being sepa- rated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good.
§. 144. But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execu- tion, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.
§. 145. There is another power in every commonwealth* which one may call natural, because it is that which answers to the power every man naturally had before he entered into society: for though in a commonwealth the members of it are distinct persons still in refer- ence to one another, and as such are governed by the laws of the society; yet in reference to the rest of mankind, they make one body, which is, as every member of it before was, stilt in the state of nature with the rest of man- kind. Hence it is, that the controversies that happen between any man of the society with those that are out of it, are managed by the public; and an injury done to a member of OF CIVIL GOVERNMENT. 315 their body, engages the whole in the reparation of it. So that under this consideration, the whole community is one body in the state of nature, in respect of all other states or persons out of its community.
§. 146. This therefore contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and commu- nities without the commonwealth, and may be called federative, if any one pleases. So the thing be understood, I am indifferent as to the name.
§. 147. These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execu- tion of the municipal laws of the society within itself, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those, whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done iu refer- ence to foreigners, depending much upon their 316 OF CIVIL GOVERNMENT.
actions, and the variation of designs and interests, must be left in great part to the pru- dence of those, who have this power committed to them, to be managed by the best of their skill, for the advantage of the commonwealth. §. 148. Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated, and placed at the same time, in the hands of distinct persons: for both of them re- quiring the force of the society for their exer- cise, it is almost impracticable to place the force of the commonwealth in distinct, and not sub- ordinate hands; or that the executive and fede- rative power should be placed in persons, that might act separately, whereby the force of the public would be under different commands: which would be apt some time or other to cause disorder and ruin.
CHAPTER XIII.
Of the Subordination of the Powers of the Commonwealth.
§. 149. Though in a constituted common- wealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power, which is the legis- lative, to which all the rest are and must be subordinate, yet the legislative being only a OF CIVIL GOVERNMENT. 317 fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for all power given with trust for the attaining an end, being- limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily he forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the sub- ject: for no man or society of men, having a power to deliver up their preservation, or con- sequently the means of it, to the absolute will and arbitrary dominion of another; whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with: and to rid themselves of those who invade this fundamental, sacred, and unalter- able law of self-preservation, for which they entered into society. And thus the community may be said in this respect to be always the su- preme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.
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§. 150. In all cases, whilst the government subsists, the legislative is the supreme power: for what can give laws to another, must needs be superior to him; and since the legislative is no otherwise legislative of the society, but by the right it has to make laws for all the parts, and for every member of the society, prescrib- ing rules to their actions, and giving power of execution, where they are transgressed, the legislative must needs be the supreme, and all other powers, in any members or parts of the society, derived from and subordinate to it.
§. 151. In some commonwealths, where the legislative is not always in being, and the execu- tive is vested in a single person, who has also a share in the legislative; there that single person in a very tolerable sense may also be called supreme: not that he has in himself all the su- preme power, which is that of law-making; but because he has in him the supreme execution, from whom all inferior magistrates derive all their several subordinate powers, or at least the greatest part of them: having also no legisla- tive superior to him, there being no law to be made without his consent, which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense supreme. But yet it is to be observed that though oaths of allegiance and fealty are taken to him, it is not to him as supreme legis- lator, but as supreme executor of the law, made by a joint power of him with others; allegiance OF CIVIL GOVERNMENT. 319 being nothing but an obedience according- to law, which when he violates, he has no right to obe- dience, nor can claim it otherwise than as the public person vested with the power of the law, and so is to be considered as the image, phantom, or representative of the common- wealth, acted by the will of the society, de- clared in its laws; and thus he has no will, no power, but that of the law. But when he quits this representation, this public will, and acts by his own private will, he degrades himself, and is but a single private person without power, and without will, that has any right to obedience; the members owing no obedience but to the public will of the society.
§. 152. The executive power, placed any- where but in a person that has also a share in the legislative, is visibly subordinate and ac- countable to it, and may be at pleasure changed and displaced; so that it is not the supreme executive power, that is exempt from subordi- nation, but the supreme executive power vested in one, who having a share in the legislative, has no distinct superior legislative to be sub- ordinate and accountable to, farther than he himself shall join and consent; so that he is no more subordinate than he himself shall think fit, which one may certainly conclude will be but very little. Of other ministerial and subor- dinate powers in a commonwealth, we need not speak, they being so multiplied with infinite variety, in the different customs and constitu- 320 OF CIVIL GOVERNMENT.
tions of distinct commonwealths, that it is im- possible to give a particular account of them all. Only thus much, which is necessary to our present purpose, we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the commonwealth.
§. 153. It is not necessary, no, nor so much as convenient, that the legislative should be always in being; but absolutely neces- sary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made. When the legislative hath put the execution of the laws, they make, into other hands, they have a power still to resume it out of those hands, when they find cause, and to punish for any mal- ad ministration against the laws. The same holds also in regard of the federative power, that and the executive being both ministerial and subordinate to the legislative, which, as has been shewed, in a constituted commonwealth is the supreme. The legislative also in this case being supposed to consist of several persons, (for if it be a single person, it cannot but be always in being, and so will, as supreme, naturally have the supreme executive power, together with the legislative) may assemble, and exercise their legislature, at the times that either their original OF CIVIL GOVERNMENT. 321 constitution, or their own adjournment, appoints, or when they please; if neither of these hath appointed any time, or there be no other way prescribed to convoke them: for the supreme power being- placed in them by the people, it is always in them, and they may exercise it when they please, unless by their original con- stitution, they are limited to certain seasons, or by an act of their supreme power they have adjourned to a certain time; and when that time comes, they have a right to assemble and act again.
§. 154. If the legislative, or any part of it, be made up of representatives chosen for that time by the people, which afterwards return into the ordinary state of subjects, and have no share in the legislature but upon a new choice, this power of ch using must also be exercised by the people, either at certain appointed seasons, or else when they are summoned to it; and in this latter case, the power of convoking the legislative is ordinarily placed in the executive, and has one of these two limitations in respect of time: that either the original constitution requires their assembling and acting at certain intervals, and then the executive power does nothing but ministerially issue directions for their electing and assembling, according to due forms; or else it is left to his prudence to call them by new elections, when the occasions or exigencies of the public require the amend- ment of old, or making of new laws, or the re- Y 322 OF CIVIL GOVERNMENT.
dress or prevention of any inconveniencies, that lie on, or threaten the people.
§. 155. It may be demanded here, What if the executive power, being possessed of the force of the commonwealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it? I say, using force upon the people without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have aright to reinstate their legislative in the exercise of their power: for having erected a legislative, with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hin- dered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all state and conditions, the true remedy of force without authority, is to oppose force to it. The use of force without authority always puts him that uses it into a state of tear, as the ag- gressor, and renders him liable to be treated ac- cordingly.
<§. 156. The poiver of assembling and dismis- sing the legislative, placed in the executive, gives not the executive a superiority over it, but is a fiduciary trust placed in him, for the safety of the people, in a case where the uncertainty and variableness of human affairs could not bear a steady fixed rule: for it not being OF CIVIL GOVERNMENT. 323 possible, that the first framers of the govern- ment should, by any foresight, be so much masters of future events, as to be able to prefix so just periods of return and duration to the assemblies of the legislative, in all times to come, that might exactly answer all the exi- gencies of the commonwealth; the best reme- dy could be found for this defect, was to trust this to the prudence of one who was always to be present, and whose business it was to watch over the public good. Constant fre- quent meetings of the legislative, and long con- tinuations of their assemblies, without neces- sary occasion, could not but be burdensome to the people, and must necessarily in time produce more dangerous inconveniencies, and yet the quick turn of affairs might be some- times such as to need their present help: any delay of their convening might endanger the public; and sometimes too their business might be so great, that the limited time of their sitting might be too short for their work, and rob the public of that benefit which could be had only from their mature deliberation. What then could be done in this case to prevent the community from being exposed some time or other to eminent hazard, on one side or the other, by fixed intervals and periods, set to the meeting and acting of the legislative, but to in- trust it to the prudence of some, who being present, and acquainted with the state of pub- lic affairs, might make use of this prerogative 324 OF CIVIL GOVERNMENT.
for the public good? and where else could this be so well placed as in his hands, who was intrusted with the execution of the laws for the same end? Thus supposing the regula- tion of times for the assembling and sitting of the legislative, not settled by the original con- stitution, it naturally fell into the hands of the executive, not as an arbitrary power depend- ing on his good pleasure, but with this trust always to have it exercised only for the public weal, as the occurrences of times and change of affairs might require. Whether settled pe- riods of their convening, or a liberty left to the prince for convoking the legislative, or perhaps a mixture of both, hath the least inconvenience attending it, it is not my business here to en- quire, but only to shew, that though the execu- tive power may have the prerogative of con- voking and dissolving such conventions of the legislative, yet it is not thereby superior to it.