OF THE EXTENT OF THE LEGISLATIVE POWER.
Sect. 134. THE great end of men’s entering into society, being the
enjoyment of their properties in peace and safety, and the great
instrument and means of that being the laws established in that society;
the first and fundamental positive law of all commonwealths is the
establishing of the legislative power; as the first and fundamental
natural law, which is to govern even the legislative itself, is the
preservation of the society, and (as far as will consist with the public
good) of every person in it. This legislative is not only the supreme
power of the commonwealth, but sacred and unalterable in the hands
where the community have once placed it; nor can any edict of any body
else, in what form soever conceived, or by what power soever backed,
have the force and obligation of a law, which has not its sanction from
that legislative which the public has chosen and appointed: for without
this the law could not have that, which is absolutely necessary to its
being a law,* the consent of the society, over whom no body can have a
power to make laws, but by their own consent, and by authority received
from them; and therefore all the obedience, which by the most solemn
ties any one can be obliged to pay, ultimately terminates in this
supreme power, and is directed by those laws which it enacts: nor can
any oaths to any foreign power whatsoever, or any domestic subordinate
power, discharge any member of the society from his obedience to the
legislative, acting pursuant to their trust; nor oblige him to any
obedience contrary to the laws so enacted, or farther than they do
allow; it being ridiculous to imagine one can be tied ultimately to obey
any power in the society, which is not the supreme.
(*The lawful power of making laws to command whole politic societies of
men, belonging so properly unto the same intire societies, that for any
prince or potentate of what kind soever upon earth, to exercise the same
of himself, and not by express commission immediately and personally
received from God, or else by authority derived at the first from their
consent, upon whose persons they impose laws, it is no better than mere
tyranny. Laws they are not therefore which public approbation hath not
made so. Hooker’s Eccl. Pol. l. i. sect. 10.
Of this point therefore we are to note, that such men naturally have no
full and perfect power to command whole politic multitudes of men,
therefore utterly without our consent, we could in such sort be at no
man’s commandment living. And to be commanded we do consent, when that
society, whereof we be a part, hath at any time before consented,
without revoking the same after by the like universal agreement. Laws
therefore human, of what kind so ever, are available by consent. Ibid.)
Sect. 135. Though the legislative, whether placed in one or more,
whether it be always in being, or only by intervals, though it be the
supreme power in every commonwealth; yet:
First, It is not, nor can possibly be absolutely arbitrary over the
lives and fortunes of the people: for it being but the joint power of
every member of the society given up to that person, or assembly, which
is legislator; it can be no more than those persons had in a state of
nature before they entered into society, and gave up to the community:
for no body can transfer to another more power than he has in himself;
and no body has an absolute arbitrary power over himself, or over any
other, to destroy his own life, or take away the life or property of
another. A man, as has been proved, cannot subject himself to the
arbitrary power of another; and having in the state of nature no
arbitrary power over the life, liberty, or possession of another, but
only so much as the law of nature gave him for the preservation of
himself, and the rest of mankind; this is all he doth, or can give up
to the commonwealth, and by it to the legislative power, so that the
legislative can have no more than this. Their power, in the utmost
bounds of it, is limited to the public good of the society. It is a
power, that hath no other end but preservation, and therefore can never
have a right to destroy, enslave, or designedly to impoverish the
subjects.* The obligations of the law of nature cease not in society,
but only in many cases are drawn closer, and have by human laws known
penalties annexed to them, to inforce their observation. Thus the law of
nature stands as an eternal rule to all men, legislators as well as
others. The rules that they make for other men’s actions, must, as well
as their own and other men’s actions, be conformable to the law of
nature, i.e. to the will of God, of which that is a declaration, and the
fundamental law of nature being the preservation of mankind, no human
sanction can be good, or valid against it.
(*Two foundations there are which bear up public societies; the one a
natural inclination, whereby all men desire sociable life and
fellowship; the other an order, expresly or secretly agreed upon,
touching the manner of their union in living together: the latter is
that which we call the law of a common-weal, the very soul of a politic
body, the parts whereof are by law animated, held together, and set on
work in such actions as the common good requireth. Laws politic,
ordained for external order and regiment amongst men, are never framed
as they should be, unless presuming the will of man to be inwardly
obstinate, rebellious, and averse from all obedience to the sacred laws
of his nature; in a word, unless presuming man to be, in regard of his
depraved mind, little better than a wild beast, they do accordingly
provide, notwithstanding, so to frame his outward actions, that they be
no hindrance unto the common good, for which societies are instituted.
Unless they do this, they are not perfect. Hooker’s Eccl. Pol. l. i.
sect. 10.)
Sect. 136. Secondly, The legislative, or supreme authority, cannot
assume to its self a power to rule by extemporary arbitrary decrees, but
is bound to dispense justice, and decide the rights of the subject by
promulgated standing laws, and known authorized judges:* for the law of
nature being unwritten, and so no where to be found but in the minds of
men, they who through passion or interest shall miscite, or misapply it,
cannot so easily be convinced of their mistake where there is no
established judge: and so it serves not, as it ought, to determine the
rights, and fence the properties of those that live under it, especially
where every one is judge, interpreter, and executioner of it too, and
that in his own case: and he that has right on his side, having
ordinarily but his own single strength, hath not force enough to defend
himself from injuries, or to punish delinquents. To avoid these
inconveniences, which disorder men’s propperties in the state of nature,
men unite into societies, that they may have the united strength of the
whole society to secure and defend their properties, and may have
standing rules to bound it, by which every one may know what is his. To
this end it is that men give up all their natural power to the society
which they enter into, and the community put the legislative power into
such hands as they think fit, with this trust, that they shall be
governed by declared laws, or else their peace, quiet, and property will
still be at the same uncertainty, as it was in the state of nature.
(*Human laws are measures in respect of men whose actions they must
direct, howbeit such measures they are as have also their higher rules
to be measured by, which rules are two, the law of God, and the law of
nature; so that laws human must be made according to the general laws of
nature, and without contradiction to any positive law of scripture,
otherwise they are ill made. Hooker’s Eccl. Pol. l. iii. sect. 9.
To constrain men to any thing inconvenient doth seem unreasonable.
Ibid. l. i. sect. 10.)
Sect. 137. Absolute arbitrary power, or governing without settled
standing laws, can neither of them consist with the ends of society and
government, which men would not quit the freedom of the state of nature
for, and tie themselves up under, were it not to preserve their lives,
liberties and fortunes, and by stated rules of right and property to
secure their peace and quiet. It cannot be supposed that they should
intend, had they a power so to do, to give to any one, or more, an
absolute arbitrary power over their persons and estates, and put a force
into the magistrate’s hand to execute his unlimited will arbitrarily
upon them. This were to put themselves into a worse condition than the
state of nature, wherein they had a liberty to defend their right
against the injuries of others, and were upon equal terms of force to
maintain it, whether invaded by a single man, or many in combination.
Whereas by supposing they have given up themselves to the absolute
arbitrary power and will of a legislator, they have disarmed themselves,
and armed him, to make a prey of them when he pleases; he being in a
much worse condition, who is exposed to the arbitrary power of one man,
who has the command of 100,000, than he that is exposed to the arbitrary
power of 100,000 single men; no body being secure, that his will, who
has such a command, is better than that of other men, though his force
be 100,000 times stronger. And therefore, whatever form the
commonwealth is under, the ruling power ought to govern by declared and
received laws, and not by extemporary dictates and undetermined
resolutions: for then mankind will be in a far worse condition than in
the state of nature, if they shall have armed one, or a few men with the
joint power of a multitude, to force them to obey at pleasure 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 established 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.
Sect. 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 necessarily 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 their’s, that no body hath a right to take their
substance 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, which 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 common 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, tho’ 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.
Sect. 139. But government, into whatsoever hands it is put, being, as I
have before shewed, intrusted with this condition, and for this end,
that men might have and secure their properties; 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 subjects property,
without their own consent: for this would be in effect to leave them no
property 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 preservation 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 soldier 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 command any
thing, and hang for the least disobedience; because such a blind
obedience is necessary to that end, for which the commander has his
power, viz. the preservation of the rest; but the disposing of his goods
has nothing to do with it.
Sect. 140. It is true, governments cannot be supported without great
charge, and it is fit every one who enjoys his share of the protection,
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?
Sect. 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 body else can say other men 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 authorized 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 laws, and not to
make legislators, the legislative can have no power to transfer their
authority of making laws, and place it in other hands.
Sect. 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 legislative
power of every commonwealth, in all forms of government.
First, They are to govern by promulgated established laws, 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 designed 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 governments 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 by themselves.
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.