property. NEW FOUNDATIONS FOR LIBERTY AND AUTHORITY IN THE OLD WORLD rington,' Daniel Webster declared in the Massachusetts Constitutional Conven- in mechanics.' 'One of the most ingenious of political writers is Mr. Har- tion of 1820, seeking to prove that 'power naturally and necessarily follows not of men,' a paraphrase of which appears in the Massachusetts Constitution Harrington supplied Americans with an enduring ideal, 'Empire of laws and of 1780, largely the handiwork of John Adams. Still other familiar principles and axioms are found in Oceana: the written constitution, liberal suffrage coupled with short term of office, and separation of powers. All these maxims, ideas, and devices became prominent features of American constitutionalism in the years following publication of Oceana and especially after 1787. English ideas also came indirectly to the attention of Americans through Charles Louis de Secondat, Baron de Montesquieu (1689-1755). The French aristocrat was inspired by his observations of the British Constitution to write The Spirit of The Laws. The key principle Montesquieu saw (or thought he saw) at work in England was separation of powers and checks and balance—'the mirror of political liberty.' To Americans, 'no political truth is [or was] of greater intrinsic value than that embodied in Book XI-the 'most precious gift the present age has received,' Jefferson called it. Madison considered the Federal Constitution of 1787 a faithful embodiment of the Frenchman's recipe. Hamilton cited Montesquieu's Book IX as 'a luminous abridgement of the principal arguments in favor of the Union.' 26 Latter-day Americans continued to cite (some still do) these names to re- inforce their own views on public policy and action. This does not imply that any of the now-familiar ideas and institutions can be traced directly to the materials contained in this chapter. But no one can deny that Locke, Harring- ton, and Montesquieu are conspicuous among the authorities confidently relied on in the discussion of American issues, especially during the revolutionary and formative periods of our history. It is, however, highly probable that Americans were influenced more by experience than by great names. 'Is it not the glory of the people of America,' Madison asks in Federalist 14, 'that, while they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situations, and the lessons of their own experience?' America 'reared the fabrics of government, the father of the Constitution boasted, 'which have no models on the face of the globe.' 1. The law of nature stands as an eternal rule to all men JOHN LOCKE, Second Treatise on Civil Government, 1690" must we To understand political power aright, and derive it from its original, consider what estate all men are naturally in, and that is, a state of perfect free- dom to order their actions, and dispose of their possessions and persons as they * Everyman's Library, no. 751, 1924, pp. 118-242 passim. CHAPTER II. OF THE STATE OF NATURE of LOCKE think fit, within the depending upon the w A state also of equal no one having more th creatures of the same advantages of Nature, one amongst another, w master of them all shou another, and confer or doubted right to domin But though this be a man in that state have possessions, yet he has n in his possession, but w it. The state of Nature one, and reason, which that being all equal and health, liberty or posse sharing all in one comm subordination among us were made for one anotl Every one as he is boun fully, so by the like reas tion, ought he as much as it be to do justice on an the preservation of the lif And that all men may doing hurt to one anothe the peace and preservation is in that state put into punish the transgressors o For the law of Nature wo be in vain if there were execute that law, and ther if any one in the state of every one may do so. For no superiority or juris prosecution of that law, e And thus, in the state c but yet no absolute or arbi his hands, according to th w will, but only to retr ctate, what is proportion verve for reparation and res Every offence that can b Nature, be also punishe wealth. For though it wou particulars of the law certain there is such a law, creature and a studier of theWORLD is Mr. Har- onal Conven- arily follows of laws and Constitution iar principles beral suffrage hese maxims, utionalism in 87. cans through . The French ution to write or thought he balance-the 3 [or was] of t precious gift ed the Federal man's recipe. gement of the e names to re- mot imply that directly to the Locke, Harring- nfidently relied volutionary and that Americans t not the glory while they have er nations, they or for names, to ge of their own cared the fabrics have no models overnment, 1690 original, we must e of perfect free- persons as they d ID Number: Name: Major. Track: - the policy with reference he student named during to only the courses composin course requirements listed in it the original signed copy ctions: LOCKE, SECOND TREATISE ON CIVIL COVERNMENT AT # COURSE TITLE 27 think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man. A state also of equality, where in 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, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an un- doubted right to dominion and sovereignty. But though this be a state of liberty, yet it is not a state of license; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of Nature has a law of Nature 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, liberty or possessions. .. And, being furnished with like faculties, sharing all in one community of Nature, there cannot be supposed any such subordination among us that may authorise us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours. Every one as he is bound to preserve himself, and not to quit his station wil- fully, so by the like reason, when his own preservation comes not in competi- tion, ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another. And that all men may be restrained from invading others' rights, and from doing hurt to one another, and the law of Nature be observed, which willeth the peace and preservation of all mankind, the exccution of the law of Nature is in that state put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation For the law of Nature would, as all other laws that concern men in this world, be in vain if there were nobody that in the state of Nature had a power to execute that law, and thereby preserve the innocent and restrain offenders; and any one in the state of Nature may punish another for any evil he has done, every one may do so. For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do. if And thus, in the state of Nature, one man comes by a power over another, but yet no absolute or arbitrary power to use a criminal, when he has got him in his hands, according to the passionate heats or boundless extravagancy of his own will, but only to retribute to him so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint. Every offence that can be committed in the state of Nature may, in the state of Nature, be also punished equally, and as far forth, as it may, in a common- wealth. For though it would be beside my present purpose to enter here into the particulars of the law of Nature, or its measures of punishment, yet it is certain there is such a law, and that too as intelligible and plain to a rational creature and a studier of that law as the positive laws of commonwealths, nay,28 NEW FOUNDATIONS FOR LIBERTY AND AUTHORITY IN THE OLD WORLD possibly plainer; as much as reason is easier to be understood than the fancies and intricate contrivances of men, following contrary and hidden interests put into words. To this strange doctrine-viz., That in the state of Nature every one has the executive power of the law of Nature-I doubt not but it will be objected that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends; and, on the other side, ill- nature, passion, and revenge will carry them too far in punishing others, and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant that civil government is the proper remedy for the incon- veniences of the state of Nature, which must certainly be great where men may be judges in their own case, since it is easy to be imagined that he who was so unjust as to do his brother an injury will scarce be so just as to condemn himself for it. But I shall desire those who make this objection to remember that abso- lute monarchs are but men; and if government is to be the remedy of those evils which necessarily follow from men being judges in their own cases, and the state of Nature is therefore not to be endured, I desire to know what kind of government that is, and how much better it is than the state of Nature, where one man commanding a multitude has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases without the least question or control of those who execute his pleasure? and in whatsoever he doth, whether led by reason, mistake, or passion, must be submitted to? which men in the state of Nature are not bound to do one to another. And if he that rest of mankind. judges, judges amiss in his own or any other case, he is answerable for it to the CHAPTER III. OF THE STATE OF WAR And hence it is that he who attempts to get another man into his abso- lute power does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life. For I have reason to con- clude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power unless it be to compel me by force to that which is against the right of my freedom-i.e. make me a slave. To be free from such force is the only security of my preserva- tion, and reason bids me look on him as an enemy to my preservation who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me thereby puts himself into a state of war with me, And here we have the plain difference between the state of Nature and the state of war, which however some men have confounded, are as far distant as a state of peace, goodwill, mutual assistance, and preservation; and a state of enmity, malice, violence and mutual destruction are one from another. Men living together according to reason without a common superior on earth, with Want authority to judge between them, is properly the state of Nature. without right upon a man's person makes a state of war both where there is, and of a common judge with authority puts all men in a state of Nature; force is not, a common judge. . 14 CHAPTER V. OF F I shall endea several parts of that any express compac God, who hath reason to make use carth and all that is being. And though belong to mankind in of Nature, and nobo of mankind in any o given for the use of them some way or ot any particular men. T knows no enclosure, an i.e. a part of him, that do him any good for the Though the earth an man has a 'property' in himself. The labour' of properly his. Whatsoeve provided and left it in, h thing that is his own, an moved from the comme something annexed to it this labour' being the un can have a right to what and as good left in comma He that is nourished by he gathered from the tree himself. Nobody can deny they begin to be his? when when he brought them hor the first gathering made th distinction between them a than Nature, the common private right. And will any of us appropriated because he his? Was it a robbery thus t mon? If such a consent as th the plenty God had given Compact, that it is the taking of the state Nature leaves it Buts my servant has cut, and t pation or consent of anybodHE OLD WORLD ood than the fancies hidden interests put Nature every one has at it will be objected ses, that self-love will n the other side, ill- unishing others, and d that therefore God ality and violence of emedy for the incon- great where men may A that he who was so s to condemn himself remember that abso- the remedy of those their own cases, and e to know what kind the state of Nature, o be judge in his own out the least question whatsoever he doth, mitted to? which men ther. And if he that swerable for it to the er man into his abso- th him; it being to be I have reason to con- my consent would use me too when he had a ute power unless it be t of my freedom-i.e. ecurity of my preserva- my preservation who so that he who makes e of war with me. ate of Nature and the are as far distant as a ration; and a state of e from another. Men uperior on earth, with . . Want state of Nature; force of Nature. th where there is, and ** ID Number: Name: Major. ack: the policy with reference to the majo he student named during the sophomo only the courses composing the major vurse requirements listed in the Catalo t the original signed copy to the Regis tions: LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT AT # COURSE TITLE 29 CHAPTER V. OF PROPERTY ... I shall endeavour to show how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being. And though all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of the rest of mankind in any of them, as they are thus in their natural state, yet being given for the use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial, to any particular men. The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his- i.e. a part of him, that another can no longer have any right to it before it can do him any good for the support of his life. Though the earth and all inferior creatures be common to all men, yet every man has a 'property' in his own 'person.' This nobody has any right to but himself. The 'labour' of his body and the 'work' of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it some- thing that is his own, and thereby makes it his property. It being by him re- moved from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this 'labour' being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will any one say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in com- mon? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the property, without which the common is of no use. And the taking of this or that part does not depend on express consent of all the commoners. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the as- signation or consent of anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them. the30 by NEW FOUNDATIONS FOR LIBERTY AND AUTHORITY IN THE OLD WORLD of the earth, ctc., makes a right to them, then any one may engross as much It will, perhaps, be objected to this, that if gathering the acorns or other fruits as he will. To which I answer, Not so. The same law of Nature that does this means give us property, does also bound that property too. 'God has given us all things richly.' Is the voice of reason confirmed by inspiration? But how far has He given it us-'to enjoy'? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus con- sidering the plenty of natural provisions there was a long time in the world, and the few spenders, and how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so estab- lished. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is ac- quired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. The same rule of propriety-viz., that every man should have as much as he could make use of, would hold still in the world had not the inven- tion of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions and a right to them. The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first commoners of the world look after- as it doth the Americans now-are generally things of short duration, such as, if they are not consumed by use will decay and perish of themselves. Gold, silver, and diamonds are things that fancy or agreement hath put the value on, more than real use and the necessary support of life. Now of those good things which Nature hath provided in common, every one hath a right (as hath been said) to as much as he could use, and had a property in all he could effect with his labour; all that his industry could extend to, to alter from the state Nature had put it in, was his. He that gathered a hundred bushels of acorns or apples had thereby a property in them; they were his goods as soon as gathered. He was only to look that he used them before they spoiled, else he took more than his share, and robbed others. And, indeed, it was a foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave away a part to anybody else, so that it perished not uselessly in his possession, these he also made use of. And if he also bartered away plums that would have rotted in a week, for he nuts that would last good for his eating a whole year, he did no injury; wasted not the common stock; destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselessly in his hands. Again, if he would give his nuts for a piece of metal, pleased with its colour, or exchange his sheep for shells, or wool for a sparkling pebble or a diamond, and keep those by him all his life, he invaded not the right of others; he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of anything uselessly in it. And thus came in the use of money s without spoiling, and that, by mutual co the truly useful but perishable supports a And as different degrees of industry different proportions, so this invention o Thus, in the beginning, all the world continue and enlarge them. now for no such thing as money was a that hath the use and value of money an same man will begin presently to enlarge h But since gold and silver, being little u to food, raiment, and carriage, has its va whereof labour yet makes in great part the of men have agreed to a disproportionate I mean out of the bounds of society and regulate it; they having, by consent, found may, rightfully and without injury, possess of by receiving gold and silver, which may without decaying for the overplus, and a And thus, I think, it is very easy to c labour could at first begin a title of proper and how the spending it upon our uses b be no reason of quarrelling about title, no possession it gave. Right and conveniency right to all he could employ his labour upor for more than he could make use of. This let title, nor for encroachment on the right of to himself was easily seen; and it was useless self too much, or take more than he needed. LOCKE, SECOND TREATISE value. CHAPTER VIII. OF THE BEGINNING OF POL Men being, as has been said, by nature all fre can be put out of this estate and subjected without his own consent, which is done by and unite into a community for their comfe one amongst another, in a secure enjoyment security against any that are not of it. This an injures not the freedom of the rest; they ar of the state of Nature. When any number of one community or government, they are the make one body politic, wherein the majority For, when any number of men have, by the community, they have thereby made that co act as one body, which is only by the will a for that which acts any community, being on of it, and it being one body, must move one
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