Monday, January 30, 2012

Locke on Legislative Power

In Search of the Republic--31

When a people form themselves into a commonwealth, they invest a legislature as the supreme law making body. Locke offers four general principles about the legislative power.

Firsts, Locke argues that legislative power is limited to the powers individuals exercised in a state of nature.

“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.”

No one in a state of nature can assume absolute authority over others; neither can the legislature. This analogy is appropriate for 17th century England, which had no written constitution. In our country, the federal and state constitutions limit legislative powers.

In addition, Locke asserts that

“Their power, in the utmost bounds of it, is limited to the public good of the society.”

Our federal constitution sums that up in the Preamble's reference to “the general welfare.”

Second, legislative power must enact promulgated, standing laws that do distinguish between those to whom they apply and are applied by judges so authorized by the legislature. The mention of judges means that citizens can contest the applications of those laws.

“The legislative, or supreme authority, cannot assume to its self a power to rule by extemporaneous arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges.”

Thirdly, legislative power cannot take anyone's property without their consent.

“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.”

That is especially true of taxation.

“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?”

Finally, legislative power cannot delegate their lawmaking powers to others. Legislative power derives from the people; only they possess the rights to transfer lawmaking powers to another entity.

“ 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 common-wealth, 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.”

This last passage strikes at the heart of the modern bureaucratic state. It may be just a unavoidable consequence of modernity, but our legislatures at both state and national levels routinely empower state and federal agencies to write and enforce thousands of regulations. Now these regulations are contestable in administrative and other courts, but the legislative power of executive agencies seems awfully close to the “arbitrary power” of monarchs that republicanism traditionally has opposed.

Sunday, January 29, 2012

Locke's New Republicanism

In Search of the Republic--30

When Locke discusses the nature of government, he differs from traditional republicans in two important ways.

First, he differs when considering the ends or purposes of government. Historically, republicanism taught that the government should promote virtue in its citizens. Usually, this meant only the higher social orders. Locke, however, sees the chief purpose of government as the protection of individual rights.

"IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property. The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property."

Secon, Locke differs in consideration of the structure of government. He divides government by function rather than by its social constituents.

 Historically, republicanism in it most general sense denoted any government without a monarch. It was  a "res publica," or thing of the people. Traditionally, republican theorists devoted their attention to the form of a republic. Earlier posts in this series noted the republican efforts to establish "mixed regimes" in which both the higher and lower orders of society participated in the government. In that way, the common interest would prevail over class based factions and each class would enjoy republican liberty--freedom under law and freedom from domination from the other social class.

In Aristotle's theoretical polity, the lower orders of a given city-state assembled to make the laws and they elected the elites to run public affairs between the meetings of the popular assembly. In ancient Rome, the hereditary elites known as the Senate proposed laws and the popular assembly approved them.

Locke, however, focused on the division of government by function rather than by social class. This provided a more logical fit with his social compact theory. According to Locke, men leave the state of nature with its laws to form a society with laws made collectively. This is the origin of the legislature. In addition, men give up their right to enforce the law of nature and  privately punish offenders of the law of nature. This is the origin of the executive.

"Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a common-wealth."

Locke devotes much of the rest of his Treatise elaborating on legislative and executive power. To this he also adds what he calls federal power: the power to conduct foreign relations.

Locke devotes a chapter to forms of a commonwealth, but provides no elaboration on this most traditional way of  republican thinking about government. He notes the Aristotelian division of government into three types: rule by the one, the few, and the many.

"THE majority having, as has been shewed, upon men's first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing; and then the form of the government is a perfect democracy: or else may put the power of making laws into the hands of a few select men, and their heirs or successors; and then it is an oligarchy: or else into the hands of one man, and then it is a monarchy: if to him and his heirs, it is an hereditary monarchy: if to him only for life, but upon his death the power only of nominating a successor to return to them; an elective monarchy."

Locke addresses only one sentence to the traditional republican concept of the mixed regime:

"And so accordingly of these [the three forms identified above] the community may make compounded and mixed forms of government, as they think good."

This paucity of attention to traditional republican mixed government may result from the much more complex society in which Locke lived. The republics of the ancient world had a much more simple social structure. The majority of free people fit neatly into categories of rich and poor. Seventeenth century England, however, exhibited a much more complex society with an extensive and growing middle class. Traditional social distinctions between rich and poor, patricians and plebeians, appeared less relevant.

Moreover, Locke's focus on how government functions rather that how it mirrors the social structure reflects his interest in the origins of government and legitimacy. Remember, Aristotle believed any form of government--monarch, aristocracy, or democracy-- is legitimate so long as it governs in the public or common interest. Although Locke, too, agreed that government must seek the common interest, that alone did not make it legitimate. In Locke's view, the only foundation of any legitimate government is the consent of the governed. When people leave a state of nature and consent to relinquish lawmaking authority to a legislature and executive authority to a magistrate, they have formed a commonwealth.

According to Locke, when a people consent to live together in one body politic and submit to the determination of the majority,

"this is that, and that only, which did, or could give beginning to any lawful government in the world."

Friday, January 27, 2012

Locke Again on Liberty and Equalty

In Search of the Republic--29

Locke devoted the entire First Treatise of Government to answering Robert Filmer's claim that patriarchal authority given by God to Adam evolved into contemporary absolute monarchical authority. As Locke unfolded his theory about the true origins of government in his Second Treatise, he devote an additional chapter to elaborate on the differences between partriarchal and political power. In that chapter, Locke elaborated on some concepts that he introduced eartlier: liberty and equality. And he sees these two concepts as inextricably linked.

First, perhaps anticipating the charge of being a "leveler," Locke explains that he does not endorse indiscrimininate equality:

"Though I have said above, Chap. II. That all men by nature are equal, I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level: birth may subject some, and alliance or benefits others, to pay an observance to those to whom nature, gratitude, or other respects, may have made it due: and yet all this consists with the equality, which all men are in, in respect of jurisdiction or dominion one over another; which was the equality I there spoke of, as proper to the business in hand, being that equal right, that every man hath, to his natural freedom, without being subjected to the will or authority of any other man."

According to Locke, merit, character, age, and even  social status may demand distinctive levels of respect or deference. None of these, accrding to Locke, conflict with  assertion of natural equality--that every man possess the right to exercise his natural liberty without the permission  and without being subject to the arbitrary will or authority of any other man.

And lest readers be confused about the liberty he envisioned, Locke again explicated the relationship between liberty and law:

"For law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law: could they be happier without it, the law, as an useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man's humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own."

In other words, men enter into political society and and subject themselves to law in order to make secure their liberties. Because the state of nature is a precarious one, one's liberties never are secure. Moreover, in a state of nature each man is responsible for defending his own liberties. In order to secure their liberties, men leave the state of nature and establishing a political society. In doing so, they form one political body authorized to enact laws for the public good. Moreover, in political society men relinguish the right to punish privately those who infringe upon their rights. The supreme government makes laws on behalf of each individual to protect their rights and executes punishment on behalf of each individual to those who break those laws.

As Locke summarizes it:

"But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. And so whoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people."

Tuesday, January 24, 2012

Locke on Property Rights

In Search of the Republic--28

In his Treatise, Locke suddenly turns to a discussion of the origins of the right to property.

The fundamental law of nature, the right of self preservation, implies that man has right to food, drink and other things that meet his physical needs:

"Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence"

According to Locke, God has given the natural world in common to mankind for this purpose.

"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."

So if God gave it in common, what distinguishes private property from the common?


In the state of nature, when a man mixes his labor with nature he removes it from the common. It has been appropriated and becomes his property; it is proper to him.

"Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body 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, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath 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 labourer, 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."

In fact, according to Locke, God gave nature to man for this very purpose--to be improved. God did not give it to be a source of envy and contention.

"God gave the world to men in common; but since he gave it them for their benefit, and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational, (and labour was to be his title to it;) not to the fancy or covetousness of the quarrelsome and contentious."

One reason the acquisition of private property might  lead to contention is that most portions were fairly equal. No man could accumulate more land that he could use, owing to spoilage. No rational person would invest labor to produce more from the land that his family could use to meet their physical needs. It would rot in the fields.

This changed with the invention of money and commerce.

The invention of money to hold the value of one's labor and the prospects of trading with others for things that they produced opened the door to unequal portions of nature's resources. The invention of money provides the incentive and means to increase one's industriousness and one's property:

"And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them."

When men consented to the use of money, they consented to inequality of possessions.

"But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out, a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor."

So just as man has a right to property in his own person--his life and liberty--he also has a right to the fruit of his labor--the work of his hands. These are so inextricably linked in Locke's mind that for much of the rest of his treaties, he uses the word property not only for the product of man's labor, but also for his natural rights. Property describes a man's "life, liberty, and estates."

Sunday, January 22, 2012

Locke on Republican Liberty

In Search of the Republic--27

Locke argues that when men form themselves into a political society and establish a body to enact laws for the public good, this act implies an obligation to adhere to those laws. Without such an obligation, the social compact becomes meaningless.

So what becomes of the liberty that men enjoyed in their state of nature?

He defines natural liberty as follows:

"THE natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule."

Political liberty, or the liberty one enjoys in political society,  slightly differs:

"The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it."

This definition of political liberty conforms with the traditional republican ideas about liberty going back to classical Athens and  Rome and resurrected during the Renaissance.

Traditionally, republican liberty focused on two points. First, republican theory assumed the liberty or  independence of the republican city from surrounding cities, principalities, and kingdoms. Greek city-states jealously guarded their liberty and independence from their neighboring Greek city-states; the Renaissance republics of Italy attempted to maintain their independence from France, the Holy Roman Empire, and the Papal States. Second, and related to this, republican theory held that the citizens in a republic should enjoy the liberty to live under laws of their own making. This meant that the citizens, directly themselves or indirectly through deputies or representatives so entrusted, made their own laws. The laws were to be clearly promulgated. And usually institutions were established to settle disputes or allow the citizens to contest the laws.

The point is that men should not  live under the arbitrary will and arbitary laws of an absolute monarch. To live so was the essence of slavery.

Locke  contrasted political liberty not only  with natural liberty, but also with the liberty falsely attributed to republicanism by its enemies. Robert Filmer and Thomas Hobbes, two advocates for royal absolutism, falsely charged that republicans believed in "a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws." They concluded that such a view was preposterous because all laws restrict one's liberty.

This charge Locke explicitly denies. He explains that republicans believe in  laws. No matter what external circumstances in which men live, they live under laws. In a republican political society men live under laws of their own making; in a state of nature men live under the laws of nature.

"Freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature."

This should cause at least some libertarians to pause and ponder whether or not Locke really is, as some of them  claim, a forefather of libertarianism. Some libertarians seem to embrace the definition of liberty falsely ascribed to republicanism by it enemies and explicitly denied by Locke: "a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws."

Of course, libertarians add to this definition a caveat--as long as one does not harm another. So some libertarians believe that the government should not regulate so-called victimless activities such as the consumption of narcotics, practice of prostitution, or the commission of suicide. Now most libertarians admit that the law of the nature--or reason-- obliges one to avoid these things. Yet at the same time, they argue that the government should nonetheless restrain from regulating or outlawing such practices.

Consequently, libertarian notions of  political liberty really constitute a version of natural liberty-- and a reductionist version of natural liberty at that. Indeed,  it can be argued that at some libertarians in essence deny the concept of political liberty altogether.

Friday, January 20, 2012

Locke on the Origins of Government

In Search of the Republic--26

According to Locke, not all men lead  lives of reason according to the law of nature. They turn the state of nature into a state of war by attempting to put others under their absolute authority and threaten their lives and property. This situation moves men to form civil governments:

To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power.”

Therefore, men put themselves into organized society by divesting themselves of their natural liberty in return for a more secure civil liberty:

MEN being, as has been said, 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. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.”

When forming a political community, the individuals have become one body that acts by the will of the majority:

For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts 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: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority”

And by entering into a political community, each individual obligates himself to submit to the decisions of the majority. Without this obligation, no real community can be formed:

And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? what new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or any one else in the state of nature hath, who may submit himself, and consent to any acts of it if he thinks fit.”

In Locke's judgment, a government formed by the consent of the governed in the only legitimate government. This view at first appears a radically different from the view of Aristotle and other republican writers. Aristotle argued that any government is legitimate if it makes laws for the common good. But as we shall see, Locke later qualifies his conclusion with addition that lawmakers much legislate for the “public good.”

If men give up their natural liberty in return for security in their lives and property, what liberty do they retain from themselves? The next post will examine Locke's views on republican liberty.

Thursday, January 19, 2012

Locke and Natural Law

In Search of the Republic--25

Although men live in a state of nature before forming governements, they are not without law. The state of nature has a law of nature.

Locke does not elaborate much on this law of nature even though the concept has a rich history going back at least to Cicero. He defines the law of nature as reason. And the most fundamental conclusion that reason teaches is each member of the human race must preserve himself. Moreover, every man must preserve every other man by not impairing another's right to life, liberty, or property:

"But though this be a state of liberty, yet it is not a state of licence: 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: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize 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 wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may 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."

The second fundamental law of nature is the right to use force, including lethal force, to protect one's life, liberty, and property.

"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 execution 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."

According to Locke, one may use lethal force even against robbery. He argues that when a robbery puts a victim under absolute authority in order to take property, this implies a threat to one's life as well.

Not all men, however, are content to live at peace according to reason. Some try to subject others and take they life, liberty, or property. Locke calls this a state of war.

"Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war."

To prevent a state of war and to live more securely, men form themselves into societies with civil government.

Tuesday, January 17, 2012

Locke and the State of Nature

In Search of the Republic--25

Locke begins his Second Treatise with a transition from his First Treatise. In that introductory essay, he replied to Robert Filmer's claim in Patriarcha that monarchs possessed a divine right to rule that derived for the paternal or parental authority given by God to Adam. One of Locke's arguments distinguished paternal power from political power. In Chapter One of his Second Treatise, he begins his discussion of the origins of political power. He defines political power as the following:

POLITICAL POWER, then, 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 defense of the common-wealth from foreign injury; and all this only for the public good.”

In this definition, Locke differs little from the traditional conceptions of government. Locke's allusion to “the public good” echoes republican political philosophy going back even beyond Aristotle, who defined legitimate governments as those who make laws for “the common good.”

In the next chapter, Locke explores the origins of political power. To do this, he argues that one must consider the state of man before government. He calls this the state of nature. The state of nature is a condition of complete freedom:

TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, 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, without asking leave, or depending upon the will of any other man.”

Moreover, this state of nature is a condition of complete 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, 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 undoubted right to dominion and sovereignty.”

Locke see all humans equal in the state of nature in that they possess the same faculties or species specific properties, especially reason, and they have common used of nature for their benefit. Most importantly, in this state of nature everyone is equal politically in that no one has a right to subordination any other.

Although the state of nature is without political authority, it is not without law. The next post will look at just what is that law.

Sunday, January 15, 2012

John Locke and the Historians

In Search of the Republic--24

John Locke wrote his Two Treatises on Government as a reply to an earlier work advocating absolute monarchy. In 1650, shortly after the English Civil War, Robert Filmer wrote Patriarcha: Or The Natural Power of Kings. Appealing to the Bible for support, Filmer argued that God vested monarchical power in Adam, based upon his paternal power as a father. This authority, according to Filmer, has been passed down to monarchs throughout the ages. According to Filmer, it is unnatural for the people to choose their leaders.

Locke's First Treatise addressed Filmer's argument. First, Locke denied that any such power was given to Adam. Paternal power is distinct for monarchical power. Second, Locke argued that even if God originally invested Adam with this authority, it could not be demonstrated that all monarchs, or any monarch for that matter, inherited that authority.

Locke wrote his Second Treatise to established to true origins and ends of civil government. Many of the ideas in the Second Treatise did not originate with Locke. He synthesized them, however, in a new, comprehensive, and compelling way. Moreover, he changed several fundamental concepts of republicanism. Indeed, some historians  consider that his writings do not constitute part of the classical republican tradition at all. They contend that Locke introduced a new model of political philosophy they call classical liberalism. These historians claimwhile Americans entered the Revolution within the classical republican tradition, that the writing of the Constitution of 1787 brought an end to classical republicanism and instead established the first liberal state.

That claim, however, would astonish our founders. They considered Locke's ideas an advancement of republican thought, not a deviation from it. The next few posts will look at some of those ideas.


Monday, January 9, 2012

The Glorious Revolution . . . or Abdication

In Search of the Republic--23

Religion again became the issue that sparked a revolution in England.

In 1687 King James issued a Declaration of Indulgence. He hoped to remove legal disabilities from those who dissented from the officially established Church of England, especially Catholic dissenters. Even many of the king's Tory supporters now grew alarmed. They saw this as the first step in disestablishing the Church of England and undoing the lonstanding Tudor religious settlement of the sixteenth century.

This led to several constitutional battles. Parliament claimed that the King did not possess the legal authority of simply dismiss duly enacted laws of Parliament. James secured a legal victory for his position by dismissing judges who sided with Parliament a appointing supporters in their place.

He issued a second Declaration of Indulgence and ordered it read in every parish. When several minsters refused, they were arrested for sedition. A jury acquitted them.

He removed Henry Compton from his position as Bishop of London when the Bishop  refused to discipline a rector named John Sharp for anti-Catholic writings.

He forced Magdelen College at Oxford to install a Catholic supporter of the king as its President.

In addition, he began to expand a large standing army, removing Protestant officers, and  appointing Catholic officers in their place.

Consequently,  secret correspondence began to be exchanged between English opponents of the King and William of Orange, the king's son in law in Holland, inquiring about military intervention. These efforts were somewhat ironic in that the English had defeated the Dutch in two wars during the 1650s and 1670s.

In June1688, his wife gave birth to a son. Now the king's opponents faced the prospect of a Catholic dynasty. This apparently moved leaders to a more "formal" request.

In late June Bishop of London Henry Compton and six nobles sent a letter explaining that they feared for their “religion, liberties, and properties." They believed that the English people would soon revolt against the king on their own. They assured William of the support of the majority of English should he intervene.

While William and his advisers considered the request, other geopolitical events in Europe increased the attraction of intervention. France intended an invasion of the Germans states and warned the Dutch not to interfere. The Dutch suspected that a French-English alliance against the Dutch was in the works in order to insure their neutrality on the German question. In order the prevent such an alliance, William and his advisers decided to invade England.

William of Orange gathered an invasion force of 20,000 men on nearly 500 ships in early October. He eluded the English navy and landed on English soil the following month. With the loss of two small battles, the desertion of several key English commanders, a conspiracy among others to side with William, and anti-Catholic rioting in London and other cities, King James abdicated his throne and fled to France.

Elections seated a new Parliament that declared William and Mary the new monarchs of England. The Parliament also passed a Bill of Rights, a conservative document that basically denied that a revolution had taken place. Instead, Parliament declared that the king had abdicated and that the throne was vacant. Moreover, the document asserted virtually no new principles. It only charged that King James had subverted the existing "religion, laws, and liberties" of England and it reaffirmed the rights of Parliament and the English people. Finally, Parliament passed the Act of Toleration that removed some restrictions against religious dissenters. They could subsequently worship in their own congregations as long as the congregation registered their meetinghouse with the county and their minister took the required oaths from the local justice of the peace.

One of the prime movers against James II did not live long enough to see the revolution. The Earl of Shaftesbury died in exile in 1683. And one of the writers who crafted a theory of government and a justification of revolution against James II failed to publish his work in time to influence events. Shaftesbury' personal physician, John Locke, returned  to England after the revolution in 1688. He finally published his manuscript, Two Treatises on Civil Government, in 1690, too late to impact the revolution and the cause of republican government.

Less than a century later, however, another generation of Englishmen would take up the cause of republican government and use John Locke as their philosophical foundation. Steeped in the ideas of Locke, the English settlers of North American revolted in 1776 to create the greatest of modern republics.

Thursday, January 5, 2012

The Exclusion Crisis

In Search of the Republic--22

Conflict between the newly restored monarchy and Parliament soon arose again.

The religious restrictions placed upon the Puritans opened to door to religious controversy from another quarter. First, Charles issued a Royal Proclamation of Indulgence in 1672 which suspended some of the laws against religious dissenters. Parliament forced its withdrawal based upon the declaration's unconstitutionality. Moreover, it became public knowledge that the King's brother and presumed heir, James, Duke of York, had converted to Catholicism. In 1673, when James refused to take the oath prescribed by the Test Act and resigned his position as Lord High Admiral, his conversion became public knowledge. Many feared the return of a Roman Catholic monarch. A movement began to find a way to prevent James from inheriting the throne.

One of the leader of this group of opponent was Anthony Ashley Cooper, 1st Earl of Shaftesbury and member of the House of Lords. He denounced the prospect of James inheriting the throne and urged legislation excluding James from the throne.

In May 1679, William Russell, one of Shaftesbury's allies in the House of Commons, introduced a bill to exclude James from inheriting the throne. Instead, succession would fall to the nearest Protestant relative, James' Protestant daughter Mary, who had married William of Orange of the Netherlands. The bill passed, so Charles dissolved parliament before the House of Lords could adopt it.

The following year Parliament reassembled. With even stronger support for Shaftsbury, Charles delayed assembly of Parliament to allow passions to subside. Petitioners appealed to Charles to recall parliament to vote on the measures became known as Whigs, a pejorative term for Scottish (presumably Presbyterian) cattle drivers. Supporters of the king became known as Tories, a negative term of Irish (presumably Catholic) bandits.

When the new Parliament finally convened, an exclusion bill was again introduced and passed by the Commons. Despite Shaftsbury's impassioned speeches in the House of Lords, however, the Lords voted it down in October 1680.

Shaftsbury continued his denunciations of Charles in the House of Lords. Charles eventually dissolved Parliament again in January 1681.

A new Parliament met in March 1681. Parliament again was filled with speeches on the future of the monarchy. When yet another exclusion bill was introduced, Charles dissolved Parliament and declared his intention to rule without it.

Later that year, Shaftsbury was arrested for treason. After a long delayed trial, a jury acquitted him. Aware that the royal authorities were organizing a second trial, he fled to the Netherlands. He died a few months later in 1683.

He left behind in England a personal physician named John Locke. While in England, Locke continued his work on a treatise that laid the philosophical foundations for legitimate governments and justified popular revolution against illegitimate ones.

He soon fled England as well. In 1683, authorities uncovered the so-called Rye House plot, in which several members of Parliament and others planned to assassinate both King Charles II and his brother. Eventually William Russell, sponsor of the original Exclusion Act, and several others were executed.

Although not part of the plot, Locke fled for the Netherlands, leaving behind and losing part of his manuscript. He spent his time in the Netherlands reworking and updating his manuscript. Before completing and publishing his treatises, however, the revolution he hoped for had occurred. The Glorious Revolution of 1688 overthrew the Stuart dynasty and established the supremacy of Parliament. Only then did Locke return to England, a traveling companion of the new Queen.

Earl of Shaftesbury

Sunday, January 1, 2012

The Restoration Settlement

In Search of the Republic--21

Charles II assumed the throne in 1660. Parliament declared Charles II to have been the legitimate king of England from the time of the execution of his father, implying that the English experiment with republicanism was a usurpation of legitimate government.

Charles patronized the arts and sciences with his support of the Royal Society of London, which included Isaac Newton and Robert Boyle, and his establishment of the Royal Observatory. Charles supported the reopening of the theaters, which had been closed under the reign of the Puritans. He also patronized many women. Although his wife bore him no children because of multiple miscarriages, Charles father at least 12 illegitimate offspring through his many mistresses.

The early Parliament that worked with Charles were dominated by Anglicans and Royalists. This Parliament ended the struggle that had endured since the 1640s over what kind of Protestant politics would dominate England. They struck out at the Puritans in the following legislation:

Indemnity and Oblivion Act (1660) provided a general pardon for treason except those who directly involved. The original prosecutor and several of the surviving commissioners who signed the king's death warrant were tried and executed for treason. The Parliament passed Bills of Attainder declaring the late Oliver Cromwell and others guilty of treason. Authorities exhumed his course displayed it in chains.

Corporation Act (1661) required that all municipal officers must take Anglican communion. This effectively excluded Presbyterians and Congregationalists from offices on the local level.

Act of Uniformity (1662) made the Anglican Book of Common Prayer compulsory in all churches. Some 2000 clergy resigned rather than comply.

Conventicle Act (1664) outlawed non-Anglican religious assemblies of more than five persons who were not from the same household.

Five Mile Act (1965) forbade clergy from living within five miles of a parish from which they had been expelled unless they took an oath of loyalty.

By the 1670, however, conflict between the monarchy and Parliament resumed. Moreover, the Protestant settlement of the Restoration appeared to be jeopardized by the specter of a Roman Catholic heir to the throne. These issue eventually led to the exclusion crisis and the Glorious Revolution of 1688.

Charles II