LOCKE: Concerning Civil Government [Second Essay] Ch. 13-19

LOCKE: Concerning Civil Government [Second Essay] Ch. 13-19

  • Chapter 13 – Of the Subordination of the Powers of the Commonwealth
    • Though the legislative power is the supreme power in a commonwealth, if the legislative act is contrary to the trust reposed in the legislature by the people to act according to the best interests of the society, then the power devolves into the hands of the people again, and the people can place it anew where they think best for their safety and security. Thus, the people retain a supreme power over all political bodies within a society, even the legislative body, of self-preservation – that fundamental, sacred and unalterable right.
    • Whilst the government subsists, the legislative power is the supreme power, and all other governmental powers are subordinate to it.
    • It is neither necessary nor convenient that the legislative body be always in being because there is not always a need for new laws to be made. It is necessary for the executive power to be always in being because the execution of laws must always be performed. The legislature puts the power to enforce laws into the hands of another person or body, and therefore retains the right to remove that power when they find just cause to do so, and also to punish the person or persons for maladministration of the laws. The same holds for the federative power.
    • The original constitution outlines the seasons in which the legislature shall assemble. The legislature also may convene when certain exigencies arise that must be addressed with new laws or amendments of old ones.
    • If the executive power, being the force of the commonwealth, prevents the legislature from assembling when public exigencies require it, then the executive power uses force upon the people without authority, and thus places himself in a state of war with the people.
    • The power of assembling and dissembling a legislature, being placed in the executive, does not give the executive power a superiority over the legislative. It is a fiduciary trust placed in the executive by the people for the safety of the people; for the framers of a commonwealth are not masters of foresight to prefix perfectly appropriate periods of return and duration to the assemblies of the legislative given the variability of human affairs. Frequent meetings of the legislature, and long continuations of their assemblies will be burdensome and eventually produce dangerous inconveniencies, and yet the quick turn of affairs might require their immediate assistance; any delay in their convening might endanger the public. Thus, the executive power has the ability to assemble and dissemble the legislature as he sees fit for the public good.
    • Nothing remains long in the same state. People, riches, trade, and power change stations; flourishing cities come to ruin whilst other unfrequented places grow into populous countries filled with wealth and inhabitants.
    • Salus populi suprema lex. The health of the people should be the supreme law. It is so just and fundamental that he who adheres to it cannot err. Thus, the executive power should regulate the number of representative members in the legislature according to the interests of the people. If a particular district has more people living in it than another district, the latter should have less representatives in the legislature; for it is the intention of the people to have a fair and equal representative.

The use of force without authority always puts him that uses it into a state of war, as the aggressor, and renders him liable to be treated accordingly.

Things of this world are in so constant a flux that nothing remains long in the same state. Thus people, riches, trade, power, change their stations, flourishing mighty cities come to ruin, and prove in times neglected desolate corners, whilst other unfrequented places grow into populous countries, filled with wealth and inhabitants.

Salus populi suprema lex – the health of the people should be the supreme law.

In chapter 13, Locke discusses the subordination of the powers of a commonwealth. Although the legislative is the supreme power of government, the people still retain authority to dispossess the legislature of their power to make laws if the people find that the legislative body is acting contrary to the interests of the society, which is the preservation of the society. However, regarding only the political entities, the legislative is supreme. It dictates to all other political bodies. For example, the legislative directs the actions of the executive and federative powers.

The executive power has the prerogative to assemble and dissemble the legislative as he sees fit in accordance with the interests of the society. Having a standing legislature is unnecessary and can result in dangerous inconveniences. Legislatures need only assemble when new laws need to be made, or old laws need to be amended. Because the need for the legislature is unpredictable given the uncertainty and variability of human affairs, placing the authority to convene and dissemble a legislature into the hands of the executive power is practical and wise. However, if the executive power prohibits a legislature from convening when the safety of the state requires it, then the executive power exercises undue force upon the people, and thus puts himself into a state of war with the community.

  • Chapter 14 – Of Prerogative
    • The executor of the laws has the power to make use of it for the good of society where the municipal law has given no direction until the legislature can assemble to provide for the exigency. There are many occasions wherein a strict and rigid adherence to the law would do harm. For example, if a society did not pull down a house that was next to a house on fire to prevent the fire from spreading. Thus, the executive power ought to have the power to use his discretion for the advantage and preservation of society to disregard some laws and mitigate the severity of the punishment in cases where it can prove no prejudice to the innocent.
    • This power to act according to discretion for the public good without the prescription of the law, and sometimes even against it, is called prerogative. This prerogative power must always be exercised according to the good of the community. If it is exercised otherwise, then the executor has placed himself in a state of war with the community. He does not have the right to arbitrarily and absolutely exert his will.
    • Prerogative is nothing but the power of doing public good without a rule.
    • God and nature never allow a man to destroy himself; and since he cannot take away his own life, he cannot give another the power to take away his life or harm him in any way.

This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative

In chapter 14, Locke discusses the prerogative power of the executor of a commonwealth. The executor has the prerogative to exercise his own discretion to act in cases where the municipal law provides no direction, and also to act contrary to the promulgated law where it is in the best interest of the society to do so. For example, the executor can order that a house be pulled down if it is next to a fire, and the action would prevent the fire from spreading and destroying other homes. Furthermore, the executor can mitigate the severity of punishments if it can be proved that there is no prejudice to the innocent. It must always be remembered that the executor must act according to the best interests of the community. If he uses his prerogative right contrary to the good of the society, then he places himself in a state of war with the community. By the laws of God and nature, men are forbidden from harming or destroying themselves; and therefore cannot transfer the power of harming or destroying themselves to another person or persons. Finally, it is absurd to suppose that men would submit to a society in which the authority acted contrary to their preservation.

  • Chapter 15 – Of Paternal, Political, and Despotical Power, considered together.
    • Paternal or parental power is the power parents have over their children to govern them for the children’s good until they come to the use of reason and knowledge of the laws of nature and laws of their country by which they are to govern themselves. This is not an arbitrary rule, but one that is exercised for the preservation of the offspring. The power of the parents does not reach the property of the child, nor is the child supposed to be subject to the rule of his parents for his entire life.
    • Political power is that power which every man renounces upon entering society, and gives it into the hands of elected officials with the express or tacit trust that the power shall be employed for their own good and preservation of their property. The power which men renounce is the power to use such means as he sees necessary for the preservation of his life, liberty, and property; and to punish transgressors of the law of nature. This power has its origin only from compact, agreement, and mutual consent of those who make up the community.
    • Despotical power is that absolute, arbitrary power a man has to take away the life of another man whenever he pleases. Neither nature nor compact give this power to men; for nature makes no distinction amongst men, and men do not possess the power to destroy themselves, and thus cannot give that power to another. This power arises only from forfeiture, which the aggressor makes of his own life when he puts himself into a state of war with another because he has chosen to abandon reason and live like savage beasts, whose rule of right is force. Thus, like a noxious and dangerous animal, he can be killed by the injured person and the rest of mankind who wish to administer justice. Only captives taken in a just and lawful war are subject to despotical power because the state of war persists between them and their captors.
    • Nature gives parental power. Voluntary agreement gives political power. Forfeiture gives Despotical power.

Paternal or parental power is nothing but that which parents have over their children, to govern them for the children’s good, till they come to the use of reason, or a state of knowledge, wherein they may be supposed capable to understand that rule, whether it be the law of nature, or the municipal law of their country, they are to govern themselves by.

Political power is that power, which every man having in the state of nature, has given up into the hands of the society, and therein to the governors, whom the society hath set over itself, with this express or tacit trust, that it shall be employed for their good, and the preservation of their property.

Despotical power is an absolute, arbitrary power one man has over another, to take away his life, whenever he pleases. This is a power, which neither nature gives, for it has made no such distinction between one man and another; nor compact can convey: for man not having such an arbitrary power over his own life, cannot give another man such a power over it; but it is the effect only of forfeiture, which the aggressor makes of his own life, when he puts himself into the state of war with another: for having quitted reason, which God hath given to be the rule betwixt man and man, and the common bond whereby human kind is united into one fellowship and society; and having renounced the way of peace which that teaches, and made use of the force of war, to compass his unjust ends upon another, where he has no right; and so revolting from his own kind to that of beasts, by making force, which is their’s, to be his rule of right, he renders himself liable to be destroyed by the injured person, and the rest of mankind, that will join with him in the execution of justice, as any other wild beast, or noxious brute, with whom mankind can have neither society nor security.

Nature gives the first of these, viz. paternal power to parents for the benefit of their children during their minority, to supply their want of ability, and understanding how to manage their property . (By property I must be understood here, as in other places, to mean that property which men have in their persons as well as goods.) Voluntary agreement gives the second, viz. political power to governors for the benefit of their subjects, to secure them in the possession and use of their properties. And forfeiture gives the third despotical power to lords for their own benefit, over those who are stripped of all property.

In chapter 15, Locke distinguishes between Parental, Political, and Despotical power. Parental power is that power that parents have over their children to direct them for the child’s good until the child has come to the use of reason and understands the laws of nature and government under which he lives. Parental power is given by nature. Political power is the power exercised by appointed officials to make laws and enforce those laws for the preservation of the life, liberty, and property of the members of the society. This power arises from compact, agreement, and mutual assent of those who compose the community. Despotical power is that power one man has to destroy the life of another whenever he pleases. Only forfeiture bestows this power. An aggressor forfeits his life when he places himself in a state of war with another by abandoning reason and transgressing the law of nature; choosing instead to live according to the rule of force like a savage beast, and like a savage beast can be killed by the injured person or any of the rest of mankind who wish to execute justice.

  • Chapter 16 – Of Conquest
    • Men have mistaken the force of arms for the consent of the people to form a commonwealth, and reckon conquest as one of the origins of government. Government can only arise by consent of the people to be ruled. Conquest often makes way for a new frame of government by destroying the previous one, but without the consent of the people, the conqueror can never expect to erect a new society.
    • The aggressor who puts himself into a state of war with another, and unjustly invades another person’s right, can never have a right over the conquered. It is absurd to suppose that if a burglar broke into my house in the night and threatened me with a dagger to sign over my estate to him, then he would have a just title to my estate. Accordingly, an unjust conqueror does not have a right to rule the people without their voluntary consent. When powerful nations unjustly seize another nation, the smaller and weaker nation ma have no authority to appeal to except God. Therefore, they must exercise patience, and remember that the unjust conquerors will eventually answer in heaven for their misdeeds.
    • Let us consider a conqueror in a lawful war. The conqueror does not get power over those who conquered with him. It cannot be forgotten that a conqueror employed soldiers and officers who helped him subdue the opposing enemy. The fellow soldiers and officers serve upon terms and conditions to share with the leader in the conquest. It is absurd to suppose that they should be subject to the leader’s absolute and arbitrary will after the conquest.
    • Furthermore, although the conqueror has power over the lives of the subdued who forfeited their lives to him by engaging in an unjust war, the conqueror does not have a power over the citizens of the opposing nation who did not engage in the war, nor does he have power over the possessions of those who engaged in the war.
    • The subdued people having not given their governors the power to commit injustice, since they do not possess such a power themselves, they ought not be held responsible for the violence and injustice of an unjust war any farther than they assist it.
    • A conqueror has power over the lives of those who put themselves into a state of war with him, and therefore forfeited their lives to him, but he does not thereby have a title to their property.
    • It is the unjust use of force that makes war.
    • Because the miscarriages of the father are no faults of the children, the father can only forfeit his own life, and not the property to be inherited by his children. Nature wills the preservation of all mankind as much as possible. Accordingly, nature has ordained that the property of the father belongs to the children in order to keep them from perishing. The right of conquest only extends to the lives of those who joined the war, not to their estates, but only in order to make reparations for damages sustained and the charges of war. I may kill a thief who sets upon me in the highway, but I may not take away his money and let him go. This would be robbery on my part.
    • A conqueror has a right to the possessions of the subdued for reparations for injuries received. The children and wife of the subdued have a right to those same possessions. The law of nature demands that if there not be enough to satisfy everyone, then one party must give way to the pressing and preferable title of those who are in danger to perish without it because the law of nature demands that all, as much as may be, should be preserved.
    • Although the conqueror has a right to seek reparations for the damages and cost of the war, there is no amount of damage that would justify the seizure of all the lands of a particular society; for a perpetual title to cultivated land is invaluable.
    • The subdued people are free to begin a new government; they are not subject to the arbitrary and absolute will of the conqueror.
    • Every man is born with a double right: the first is a right to the freedom and disposal of his own person, the second is a right with his bretheren to inherit his father’s property.
    • To conclude, the conqueror in a just war has power over the lives of those who were aggressors towards him, and thus put themselves into a state of war with him. The conqueror has power over the possessions of the subdued as much is required to repair him for damages received by the aggressor, but no more than to injure the right of the family of the vanquished. The children and wife of the subdued have a right to the property of the aggressor because the aggressor does not have the power over their lives and property to forfeit them. Because the faults of the father are not the faults of the children or wife, the conqueror would be unjust if he unlawfully seized their property or life.

He that appeals to heaven must be sure he has right on his side; and a right too that is worth the trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived, and will be sure to retribute to every one according to the mischiefs he hath created to his fellow subjects; that is, any part of mankind: from whence it is plain, that he that conquers in an unjust war can thereby have no title to the subjection and obedience of the conquered.

It is the unjust use of force then, that puts a man into the state of war with another; and thereby he that is guilty of it makes a forfeiture of his life: for quitting reason, which is the rule given between man and man, and using force, the way of beasts, he becomes liable to be destroyed by him he uses force against, as any savage ravenous beast, that is dangerous to his being.

In chapter 16, Locke discusses the power a conqueror attains over a vanquished enemy. A conqueror only gains a right to the life of the aggressor who put himself into a state of war with the conqueror. The conqueror has a power over the estate of the subdued aggressor only so far as will repair him for the damages received and cost of sustaining the war. Furthermore, nature wills the preservation of as much as possible; therefore, if the children and wife of the aggressor have a pressing need for the estate of the man for their own preservation, the conqueror must yield to their need. The conqueror does not gain power over the members of society who did not assist in the war. The members of society do not possess the right to do injustice, and therefore cannot transfer that right to their governors. Only the combatants who exercised violence and unlawful force upon the conqueror forfeit their lives to the conqueror.

  • Chapter 17 – Of Usurpation
    • Conquest may be called a foreign usurpation. Usurpation is a domestic conquest. A usurper can never have right on his side because he has unlawfully taken what belongs to another. Usurpation is a change of persons only, not of the forms and rules of government. But if the usurper extends beyond the right possessed by the previous prince, then he becomes a tyrant.
    • All lawful governments have established laws about how they designate government officials. He who seizes power by other means than those prescribed by the society, has no right to be obeyed until the people are at liberty to consent to his authority, and actually do consent to it.

In chapter 17, Locke discusses usurpation, which is a kind of domestic conquest. However, a usurper never has right on his side; for he takes what lawfully belongs to another. A usurper has no right to be obeyed by a society until the society is at liberty to consent to his authority, and actually does consent to it. This chapter was very short, only two paragraphs in length.

  • Chapter 18 – Of Tyranny
    • As usurpation is the exercise of power that belongs to another, tyranny is the exercise of power beyond the right which nobody has a right to. Tyranny is the exercise of power for one’s own advantage and separation rather than the good of those who are under the power.
    • The proud and ambitious tyrant thinks that his kingdom and people are ordained for the satisfaction of his desires and unreasonable appetites. The righteous and just king acknowledges himself to be ordained to procure wealth and property for his people.
    • Tyranny is not a fault peculiar to monarchies. The thirty tyrants of Athens and the Decemviri of Rome prove that tyrannical power exists wherever power is exercised contrary to the good of those under the power and for the advantage of those with the power.
    • Whosoever in authority exceeds the power given to him and transgresses the laws may be opposed as any other man who invades the right of another by force.
    • Only an unjust and unlawful force can be opposed, not simply a force that an individual uniquely disagrees with.
    • Nothing is accounted hostile force where there is an open appeal to the law for remedy of damages received.
    • It is impossible for a few oppressed men to disturb or overthrow a government. Although a madman or malcontent has a right to oppose the government if they believe the government has exercised unlawful force upon them, the society is not apt to follow them.
    • If the mischiefs extend to the majority of the people, or affected a few but threaten all of society, then the people may rebel against the government. This is easy for a government to avoid. A governor need only act in the best interest of the society and for the preservation of his subjects’ property.

In chapter 18, Locke discusses tyrannical power. Tyrannical power is the exercise of power beyond the right to which anyone has a title. The difference between a tyrant and a just king is that a tyrant believes his kingdom and people are ordained to satisfy his own peculiar desires and unreasonable appetites, whilst a just king believes that he is ordained to procure wealth for his subjects and preserve the laws and property of his people.

Whosoever transgresses the laws and exercises tyrannical force may be opposed as any other man who unlawfully invades the right of another by force. The status and authority of a person does not give that person immunity from acting within the bounds of the law.

To avoid rebellion, the government need only act in the best interests of the society to preserve the life, liberty, and property of the citizens. If they act contrary to the interests of the society, the members of that society will be apt to rebel and attempt to establish a new order.

  • Chapter 19 – Of the Dissolution of Government
    • He who will speak with any clearness about the dissolution of government ought first to distinguish between the dissolution of government and the dissolution of society. Almost the only way the latter is dissolved is by foreign invasion; for only then is the incorporate body of the society unable to maintain itself as one body. Thus, everyone then returns to a state of nature with a liberty to shift for himself and provide for his own safety as he sees fit in another society. Wherever the society is dissolved, so too is the government.
    • Besides the overturning of a government from without, it can be overturned from within. If the legislative is altered in any way, then the government dissolves and a new one takes its place; for the legislative body is the soul of the commonwealth, it is the common body in which all members are united. Therefore, when the legislative body – the soul of the commonwealth – is dissolved, the death of the government ensues. The constitution of the legislature is the first and fundamental act of a commonwealth. An alteration in the legislature is usually the result of some malfeasance – in other words, a person or persons usurping the power bestowed upon the legislature by the consent of the people, and exercising that power contrary to the ends of society.
    • When a prince sets up his own arbitrary will in place of the laws which are the will of the society declared by the legislative, then the legislative is changed.
    • When a prince hinders the legislature from assembling, or acting freely pursuant to the ends for which it was established, the legislature is changed.
    • When, by the arbitrary power of the prince, the electors or ways of election are altered without the consent and contrary to the interests of the society, then the legislative is altered.
    • When the prince or legislative body delivers the people into the hands of a foreign power, then the legislative is altered.
    • When the executive power neglects and abandons his duty, then the government is dissolved because there is no longer any force to execute the laws. Without execution of laws, the laws might as well not exist. A society without laws is not a society or government at all.
    • When a government is dissolved, the people are at liberty to erect a new legislative differing from the other by change of persons, form, or both as they shall find fit to their security and preservation. The preservation of society can only be accomplished by a settled legislative and a fair and impartial execution of the laws made by it. Society not only has the right to erect a new legislative after the old one is dissolved, but to prevent the dissolution of the legislative by erecting a new one before the circumstances become dire.
    • Not only the prince can dissolve the government, but the legislative can as well. When the legislative acts against the trust reposed in them, and endeavor to invade the property of the subjects, and to make themselves arbitrary disposers of the lives, liberties, and fortunes of the people, then the legislative forfeits the power entrusted to them by the people. This legislative power reverts back into the hands of the people who have the right to erect a new legislative.
    • The executive power acts contrary to the trust reposed in him by the people when he attempts to set up his own arbitrary will as law, and also when he employs the force, treasury, and offices of the society to corrupt representatives, and affects the elections of representatives to serve his own unreasonable appetite and personal desires.
    • The people reserve to themselves the right to freely choose their representatives as a fence to their properties, so that the representatives can freely act and advise as the necessity of the commonwealth and the public good should, upon examination and mature debate, be judged to require.
    • Some might argue that no government will persist for very long is the people may erect a new one whenever they find fault with the current system because the people are naturally ignorant and discontented. Locke argues that people are not so easily got out of their accustomed forms as some suggest. History has demonstrated that people have a slowness and aversion to quit their constitutions despite obvious and easily rectifiable defects.
    • Furthermore, Locke’s assertion that the people have a right to dissolve and erect a new government when they see fit is a hypothesis that does not lead to more frequent rebellions as some might expect; for when the people are miserable and find themselves exposed to the ill usage of arbitrary power, they will rebel regardless of whether the governors are accounted divine and inviolable.
    • Such revolutions will not happen on every small mismanagement of public affairs. The people will bear without mutiny great mistakes in the ruling part, many wrong and inconvenient laws, and many slips of human frailty. However, if a long train of abuses tending the same way make the design visible to the people, it is not to be wondered that the people should rouse themselves and endeavor to put authority into the hands of those people who will secure to them the ends for which government is erected.
    • The power of the people to erect a new legislative is the best fence against rebellion because the legislative will be persuaded to act in the best interest of the society, knowing the dangers that await them if they choose to act otherwise.
    • Whoever alters the legislative, or the legislative that acts contrary to the ends for which it was established, is guilty of rebellion and puts itself into a state of war with the people.
    • Some argue that the doctrine espoused by Locke lays a foundation for frequent rebellion because it absolves people from obedience when illegal attempts are made upon their lives, liberties, and property, and gives them the right to oppose unlawful uses of force by the magistrates against their rights. Locke retorts that they may as well say that robbers and pirates ought not be opposed because it will occasion disorder and bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his right, but on him who invades the right of his neighbor.
    • The end of government is the good of mankind. Is the good of mankind to be exposed to tyranny, or that rulers should be held accountable when they grow exorbitant in their use of power, and employ it for the destruction rather than preservation of the society’s property.
    • Individual men may desire to alter the government for some perceived injustice, but they often stir to their own just ruin and perdition. It is only when the mischief committed by the government affects the majority of society, or when the ill designs of the government become apparent to the majority of society that a society will rebel and dissolve the government.
    • Whoever, either ruler or subject, exercises force to invade the right of another member of society, and lays the foundation for overturning the constitution and frame of a just government, commits the greatest crime; for he must answer for all the mischiefs of blood, rapine, and desolation that accompany the dissolution of a government.
    • Whoever uses force without right – as everyone does in society who does it without law – puts himself in a state of war with those against whom he uses it. Therefore, no one is exempt from punishment, not even the prince.
    • Who shall be judge whether the prince or legislative act contrary to the people’s trust? The people shall be judge; for they appointed the prince and legislators, and thus have the power to discard them when they fail their trust.
    • God alone is judge of right and wrong, but every man is judge in his own case whether another has put himself into a state of war with him, and whether he should appeal to the supreme judge as Jephtha did.
    • Who is better to judge whether a prince has exceeded the bounds of the trust reposed in him by the people than by the people themselves?

They may as well say, upon the same ground, that honest men may not oppose robbers or pirates, because this may occasion disorder or bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his own right, but on him that invades his neighbour’s.

This I am sure, whoever, either ruler or subject, by force goes about to invade the rights of either prince or people, and lays the foundation for overturning the constitution and frame of any just government, he is guilty of the greatest crime I think a man is capable of, being to answer for all those mischiefs of blood, rapine, and desolation, which the breaking to pieces of governments bring on a country; and he who does it is justly to be esteemed the common enemy and pest of mankind, and is to be treated accordingly.

In chapter 19, Locke discusses the dissolution of government. The dissolution of government can result from a variety of actions. A foreign invasion can dissolve both the government and the society itself. Acts taken by the prince, legislative body, or any member of the community that are contrary to the interest of the society can cause the dissolution of the government. Whenever the legislature is altered, the government dissolves and the legislative power reverts into the hands of the people who can choose to erect a new legislature. Locke argues that anyone, even the prince, who exercises unlawful force to invade the rights of another, places himself into a state of war with him, and the offended party is justified in opposing that force with force.

Second Treatise of Government

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