Two Treatises of Government (by John Locke)
Locke’s Essay on Government, famous as it is, and wonderful as was its success, is essentially a popular performance, and is, to a considerable extent, to be regarded also as an occasional one. As Warburton's Essay on the Alliance between Church and State might more properly have been entitled an attempt to construct a theory of the Church of England, the Treatise on Government might have been called a defence of the Revolution of 1688 considered in the abstract; still it deserves attention on several accounts, both as being singularly characteristic of Locke and as marking a point in the history of English speculation.
The first part of the treatise, which is a refutation of Sir Robert Filmer, is in the present day a mere weariness to the flesh, and in no degree worth reading. To judge, indeed, from Locke's account of it, Sir Robert Filmer's doctrine must have been so monstrously absurd that the wonder is how it could ever have been thought to deserve a refutation. Adam, it appears, had supreme authority over all his descendants. Adam was the 'father, king, and lord over his family; a son, a subject, and a servant or slave were one and the same thing at first.' Somehow or other this sovereignty of Adam's came to be vested in kings, who accordingly are all absolute over their subjects.
Locke goes elaborately through all the different parts of this singular theory, discussing in separate chapters 'Adam's title to sovereignty by creation, his 'title by donation,' his 'title by the subjection of Eve,' his 'title by fatherhood.' He discusses various questions of a sort of transcendental real-property law which it appears may have arisen between Cain and Seth and the three sons of Noah, upon whose respective rights we have this amongst other curious remarks: 'If the regal power descended to Shem as eldest and heir to his father, then "Noah's division of the world by lot to his sons, orhis ten years' sailing about the Mediterranean to appoint each son his part" which our author tells us of, was labour lost.' We have then a long discussion of the difficult question, Who are and have been Adam's heirs? The only document with which we are acquainted which throws any light on this subject is a genealogy in the Library of Trinity College, Cambridge, which traces the descent of Henry VIII. from Adam.
Locke raises questions not only as to the fact, which is obviously difficult enough to be ascertained, but also as to the law applicable to the fact. He observes with the utmost gravity, 'I go on then to ask whether, in the inheritance of this paternal power, the grandson by a daughter hath a right before a nephew by a brother?' and much more of the same kind. Except as a curious illustration of the sort of nonsense which has had its day in the world, all this matter is now of the very least possible interest.
The second part of the treatise, which is headed 'Of Civil Government,' is a work of quite a different order of merit. It was in its day extremely popular, and its practical effects were no doubt great, as it furnished people with the best and most accessible popular justification for the Revolution of 1688. It would be difficult, however, to find a better illustration of the fact that we have travelled a very long road since Locke's time, and have carried the metaphysical principles of which he perceived certain aspects, to consequences which have made his political speculations appear altogether superannuated and bygone. Few things can give so vivid a notion of the course which subsequent speculation has taken as to go back to books which in their day had a great name and almost boundless popularity, and to consider the reasons why they now fall so flatly upon us. This is the only way in which we can learn what were the tacit assumptions in the minds of authors who were the guides of other generations than our own, and what was the method of their inquiries.
Locke begins with a definition of his subject— political power. This, he says, 'I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and in the defence of the commonwealth from foreign injury; and all this only for the public good.' He then proceeds to give a sort of natural history of commonwealths. He begins with the state of nature from which they all spring, and thence he goes on to consider what war is according to the state of nature, what was the origin and object of civil society, how commonwealths are governed, what is the extent of the powers of the different branches of their governments, and how they are dissolved.
He says that by nature men are in 'a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit within the bounds of the law of nature.' It is, moreover, a 'state of equality wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another without subordination or subjection.' For this proposition Locke quotes Hooker, whose political theories, indeed, were substantially the same as his own. The state of nature, however, 'though a state of liberty, is not a state of licence.' 'It has a law to govern it which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, property, or possessions,' because all men are the property of God, and 'there cannot be supposed any such subordination among us that may authorise us to destroy another as if we were made for one another's uses.'
The sanction of the law of nature is, in the state of nature, a right on the part of every man 'to punish the transgressors of that law to such a degree as may hinder its violation.' If the state of nature which Locke thus regards as a condition of equilibrium is disturbed, the result is war, which is 'a state of enmity and destruction.' The state of nature is 'a state of peace, goodwill, mutual assistance, and preservation,' in which men 'live together according to reason, without a common superior on earth with authority to judge between them.' War is a state where any of the parties live otherwise than according to reason, and in a state of 'force or a declared design of force, upon the person of another.' Slavery is 'a continued state of war between a lawful conqueror and a captive.'
'Property' is a phrase which Locke uses in a very extended sense. He makes it include all rights whatever, and especially rights over a man's own person and the produce of his own labour. In fact, he places the origin of all property in labour, and shows at length how the value of all things, and especially the value of land, is derived from it exclusively. These proprietary rights, according to his view, existed in the state of nature, though they were highly insecure, by reason of the want of any known interpreter of the law of nature to ascertain, and of any organised sanction of the law of nature to secure them. The only restriction on liberty in the state of nature arises from paternal power, which, however, is not government properly speaking, for it does not authorise the parent to make laws for the child, or to punish him with death or otherwise. It is rather in the nature of an obligation on the parent to protect the child, during infancy, from the effects of his own weakness and immaturity.
These are the principal incidents of the state of nature. The state of civil society is instituted by way of remedy for its inconveniences. 'Men being by nature all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.' As soon as any set of men associate themselves in order to institute political power, they ' make a community with power to act as one body, which is only by the will and determination of the majority; for that which binds any community being only the consent of the individuals of it, and it being necessary to that which is one body to move one way, it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority.' Hence, when people unite into a community out of a state of nature, they 'give up all the power necessary to the ends for which they unite into society, to the majority of the community, unless they expressly agreed in any number greater than the majority.’
This naturally introduces the question, What are the ends of civil society? And to this Locke answers —To avoid the inconveniences of the state of nature, by providing means for the protection of property, in the large sense in which he uses the word—by the appointment, first of a settled law, next of a settled judge, and lastly of a sufficient sanction to put the law in force when made and interpreted, all of which are wanting in the state of nature.
Having thus laid down the fundamental principles of his theory, Locke goes on to describe the forms into which the government may be thrown, as to which he merely repeats the old classification of monarchies, aristocracies, and democracies; and thence he passes to a consideration of the extent of the powers thus granted by the people at large to their various subordinates. With a view to this, he considers first, the extent of the legislative power, which he says is subject to four limitations. First, it cannot be arbitrary over the lives and fortunes of the members of the community; for no one can transfer more power than he has, and no one has absolute arbitrary power over himself or any other. Secondly, the legislative power must govern by promulgated standing laws, and known authorised judges, and not by arbitrary decrees. Otherwise the inconvenience of the vagueness of the law of nature would not be avoided. Thirdly, the legislative power cannot take from any man part of his property without his consent, for the preservation of property was the object of the association. Fourthly, the legislative power cannot transfer the power of making laws to any other hands. The executive power is dependent on the legislative power, and beyond them both 'there remains still in the people a supreme power to remove or alter the legislative.'
Locke then proceeds to describe the position in which, upon this theory, the different members of a government stand to each other and to the people at large. He describes the functions of the executive, and in particular he describes prerogative as a discretionary power put into the hands of the executive authority for special purposes which may happen to arise.
Having thus investigated what he regards as the normal and regular genesis of civil society, he proceeds to consider the case of conquest, by which political power may be acquired. He limits the rights of conquest, first, to the case of a just war. Next, in point of extent, he limits the right of the conqueror to the power which he gets over so many of the conquered people as 'have actually assisted, concurred, or consented to that unjust force that is used against him.' Over their lives the conqueror obtains a perfectly despotic and absolute power, 'but he has not thereby a right and title to their possessions.' The conqueror may take away the life of the conquered, 'and destroy him if he pleases as a noxious creature,' because the existence of a just war presupposes that the person attacked is a noxious creature; but as to the property, he has a right only to damages and costs, and that is subject moreover to the rights of the wife and children of the. person conquered. Length of time gives no greater rights than these. Unless there be a subsequent compact between the conquered and the conqueror, the state of war continues, and may last for centuries. 'Who doubts but the Greek Christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke, which they have so long groaned under, whenever they have an opportunity to do it?'
The rest of the treatise consists of an inquiry into the cases of abuse of power which may make it necessary for the people to exercise their ultimate right of altering the framework of Government. These are— usurpation, tyranny, and generally such conduct on the part of the person in possession of power, as is altogether inconsistent with the purposes for which he, or his predecessors, were invested with their power. As might have been expected, several of the cases in question are generalised from the precedent of the Revolution, for the essay appeared in 1689, and its principles certainly prove that James II. had incurred the penalty of deposition under nearly every head under which he could have incurred it.
The treatise concludes with answers to the objections which may be made to the right of resistance. The gist of these is, that people are in more danger from unlimited power in the government than from a right of resistance in extreme cases; and that, in fact, whatever form of government is chosen, and whatever maybe the authority with which it is formally invested, people will resist after a certain point, so that there can be no harm in laying down a theory as to the limitations under which resistance is justifiable. As usually happens in such cases, this argument is capable of being turned the other way. De Maistre argues that tyranny is always tempered by the tyrant's fear of assassination, and he seems to regard this circumstance as a sort of answer to the inconveniences which might be alleged against the doctrines of absolutism.
Such is Locke's celebrated view of the nature, the origin, and the powers of government, and it is worth attention, not merely because it was, so to speak, the official justification of the Revolution of 1688, but because that justification was put forward by the principal philosopher of his age. It would be impossible to find in our own history, and difficult to find in the history of any time or country, a case of such immediate connection between a philosophical theory, what was considered as its political equivalent, and the reduction of both to practice.
The great singularity of the political theory of Locke is its striking incongruity with his metaphysics. The object of the Essay on the Human Understanding is to destroy the doctrine of innate ideas, and to reduce all knowledge to a generalisation of experience. Its moral side consisted principally in the reduction of morality to a system of criminal law with supernatural sanctions. The treatise on Civil Government appears, as the preceding outline of its principal doctrines sufficiently proves, to be the very reverse of all this. It is founded entirely on the two conceptions of the state of nature and the law of nature, and it is difficult to see how Locke could arrive at either of these conceptions from experience, unless his notion of the character of the process by which abstract ideas are to be formed was altogether different from what a student of his Essay on the Understanding would naturally have supposed it to be.
His notion of abstraction is that it consists in selecting from a number of particular things, called by the same name, their characteristic qualities, and omitting what is peculiar to the individual, and not one of its essential qualities—i.e. one of the qualities without which it could not perform the functions common to all the members of the class. These characteristics are then combined in one mental image, which is an abstract idea. Now, how can the state of nature and the law of nature, as above described, be arrived at by any such process as this? We are told, for instance, that in a state of nature all men are equal, that every one has a right to do whatever he pleases which does not hurt his neighbours, and that reason is a law in it. If this is to be regarded as an abstract idea, one would like to know what were the particular cases from which it was abstracted. It is, indeed, perfectly clear that, instead of being an idea of any kind whatever, abstract or otherwise, it is a mere romance, as much the creature of Locke's own fancy as Plato's Republic was of his.
Nor does this arise merely or chiefly from an unfortunate or defective mode of expression. This may be shown by comparing Locke with Hobbes. Hobbes's doctrine of the social contract is no doubt open, as it stands, to the objection that it founds society on a contract, whilst it resolves the obligation to keep contracts into fear of the threats of the organised power of society; but the importance of this objection is greatly diminished by the fact that it is possible to state the substance of Hobbes's views without having resort to the fiction of a contract at all.
For instance, his doctrine of equality rests, not on a gratuitous statement, like that of Locke and Hooker, about all men having equal rights, but on the alleged fact that the mental and bodily powers of individuals differ so little, that the difference maybe neglected when human affairs are regarded on the large scale. Though he often expresses it clumsily, Hobbes never loses sight of the fact, that by a right he means what in a large sense may be called a legal right—that is, some power or faculty secured by an antecedent command, not a quality by reason of the existence of which the command issued. My 'right' to my life, according to Hobbes, lies in the fact that God, or that the Leviathan, has commanded others not to kill me. Locke does not explain himself clearly on the subject, but he appears to have regarded the right as separate from, and antecedent to, any command whatever, and as itself determining the command to be issued; but how he got this idea from experience, and what, however he got it, he regarded as a natural right, he nowhere explains; and it is indeed impossible for any one to explain.
The same difficulty presents itself, under a slightly different form, in reference to the law of nature, which Locke regards as the law by which the state of nature is regulated. . Reason, he tells us, is the law of nature; yet where and how does reason come by its principles, and what are its principles in this matter? That men ought to keep their contracts, and that they ought not to hurt each other unless for some greater good, are the sort of principles which Locke regarded as principles of reason, and leading commandments of the law of nature; but it is difficult to see the propriety of such a view of these maxims.
If experience is our only guide, and if reason is no more than the faculty which enables us to reckon up its lessons, to set them in order, and to see what upon full examination they amount to, then we cannot set out with these maxims as if they were to interpret experience, but we must first arrive at them from experience; and, in order to do so, such words as 'ought,' or 'are' and 'can' used in the sense of 'ought' (all men are equal—no man can take away his own life, etc.), are the very first to which it is necessary to attach a distinct meaning.
Locke does, in fact, avoid, or appear to avoid, this difficulty, to a certain extent at least, by the manner in which he makes all his political theories depend upon the Divine attributes. At the very beginning of the treatise, we learn that, 'men being all the workmanship of one omnipotent and infinitely wise Maker,' etc., we must suppose this and that; but this only puts the difficulty a step farther off. It is poor logic to argue that Infinite Wisdom commanded a thing because it is right, and that it is right because it is commanded by Infinite Wisdom; yet this is the fallacy into which Locke falls throughout the whole of this essay.
Several observations arise upon the logical and philosophical imperfections of a treatise, which was not only so celebrated, but of such great practical importance as this. The first is, that it is an illustration of the great truth, that the founders of a powerful school seldom draw the inferences which naturally flow from their principles. Locke's principles, fully carried out in the moral and political sphere, lead to the result, that the only definite meanings which can be assigned to right and duty are what, in the large sense already specified, must be called legal right and legal duty—powers protected by commands of some sort or other; and also, that the only questions which it is possible to treat with much hope of arriving at a permanently satisfactory conclusion upon moral and political subjects, are questions of fact—questions, that is, as to the consequences which do, in fact, follow from certain courses of conduct.
Political economy is the type of a science arrived at by Locke's method. When fully carried out, as it was by Berkeley, by Hume, and others, this method will enable men to discover how the desire of gain, the desire of happiness, the dislike of pain, and many other passions work upon mankind, and influence their conduct. But nothing but confusion and difficulty is produced by attempts on the part of those who practise it to pass beyond its limits, and to lay down by its aid, as Locke and Warburton afterwards tried to do, systems resting on those very a priori principles which it is the characteristic of the method to deny.
Perhaps one of the oddest illustrations of the fanciful character of the results to which Locke's abstract principles led him in relation to civil government, is to be found at the end of the 13th chapter, in which he refers to rotten boroughs, and then observes, 'This strangers stand amazed at, and every one must confess needs a remedy; though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it; and, therefore, the people, when the legislative is once constituted, having in such a government as we have been speaking of, no power as long as the government stands, this inconvenience is thought incapable of a remedy.'
Locke actually solves this purely imaginary difficulty by resorting to the notion that prerogative ought to set the matter right. 'If the executive, who has the power of convoking the legislative, observing rather the true proportion than fashion of representation, regulates not by old custom, but true reason, the number of members in all places that have a right to be distinctly represented, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly as well as inevitably introduced.' A theory certainly needed to be built on very firm foundations, if it was to be capable of supporting the conclusion that the King had, and that the Parliament had not, a right to disfranchise Old Sarum.
Probably it was partly by reason of its philosophical defects that this treatise met with such extraordinary success. It expressed, in a form sufficiently abstract to look highly philosophical, the determination of the great bulk of the English people to have done with the Stuarts, their divine right, and their love for Popery; and for practical purposes, this was the really important thing. Locke's views, carried out to their full consequences, would have excited extreme alarm and dissent, and would certainly not have tended to produce or to confirm vigorous action. To be practically successful at once, a theory must not be too true.
It is curious, as an indication of the change in the national taste which had been in progress throughout the latter half of the seventeenth century, that Locke's references to the Bible are conceived in altogether a different spirit from those of Hobbes. Locke was one of the most pious of men. Hobbes was far from it, but Hobbes's books, especially the earlier ones, bristle with texts quoted in the true controversial manner, whilst Locke quotes the Bible principally for illustrations on matters of historical fact. He argues often enough from Adam and Eve, and the state of things after the Flood, but, although one would have thought the subject invited it, he nowhere in this treatise goes over all the well-known texts which may be quoted for and against the doctrine of passive obedience. This is a very notable change, and is thoroughly characteristic both of the man and of his age.
Saturday Review, February 16, 1867.