teoría del Estado según John Locke


Locke’s Theory of the State
by Frederick Pollock
1904
FUENTE http://socserv.mcmaster.ca/econ/ugcm/3ll3/locke/thestat

Proceedings of the British Academy, volume 2, 1904, pp. 237-49.

Locke’s Essay on Civil Government is well known, and is
probably the most important contribution ever made to English
constitutional law by an author who was not a lawyer by
profession; certainly there is nothing to be compared to it until
we come to Bagehot in our own time. Still I do not know that it
has ever been analysed by an English lawyer with reference to its
immediate purpose and circumstances. In fact Locke’s political
doctrine holds quite a secondary place in such accounts of Locke
as are generally current in the hands of the educated public. The
Essay on Civil Government has been overshadowed by the Essay on
the Human Understanding and the Letters on Toleration. This,
together with the special occasion, may perhaps be a sufficient
excuse for the present attempt.
The first thing to bear in mind about the Essay on Civil
Government is that it is essentially an apologia for the
Convention Parliament, no less than Hobbes’s Leviathan and
Behemoth were an indictment of the Long Parliament. It is true
that in the body of the work the language employed is studiously
general. But the date of publication, 1690, would alone be enough
to remove any doubts of the intention, and moreover that
intention is clearly stated in the Preface to the two treatises
of which the Essay is the second. It may be well to cite Locke’s
own words. ‘Reader, Thou hast here the Beginning and End of a
Discourse concerning Government; what Fate has otherwise disposed
of the Papers that should have filled up the Middle, and were
more than all the rest, ’tis not worth while to tell thee. These
which remain, I hope are sufficient to establish the Throne of
our great Restorer, our present King William; to make good his
title, in the Consent of the People; which being the only one of
all lawful Governments, he has more fully and clearly, than any
Prince in Christendom; and to justify to the World the People of
England, whose love of their just and natural Rights, with their
Resolution to preserve them, saved the Nation when it was on the
very brink of Slavery and Ruin.’ The doctrine which Locke had to
confute, was, as is well known, that of absolute monarchy. the
champion whom he attacked by name and elaborately demolished in
the first of the Two Treatises of Government was, however strange
it may seem to us nowadays, not Thomas Hobbes but Sir Robert
Filmer. For us Hobbes is the recognized founder of the English
school of politics and jurisprudence; while Filmer, as the late
Prof. Croom Robertson incidentally observed in discussing Hobbes
(and I see no reason to doubt the soundness of the remark), is
saved by Locke from oblivion. In Locke’s time Sir Robert Filmer
was fashionable among royalists and Hobbes was not. Hobbes’s
uncompromising rejection of ecclesiastical claims made it, in
fact, impossible for a party bound up with Anglican prelacy to
have anything to do with him; and his justification of obedience
to any de facto government in being was hardly less distasteful
to maintainers of the divine right of kings. Express controversy
with Hobbes was therefore quite useless for Locke’s purpose.
Nevertheless Locke must have seen that, apart from the party
strife of the moment, Hobbes was the really formidable adversary.
Moreover Filmer, with all his absurdities, had one fundamental
point in common with Hobbes. Indeed he was the only publicist of
the time, so far as I know, who mentioned Hobbes with approval,
though a limited approval. ‘With no small Content,’ says Filmer,
‘I read Mr Hobs’s Book De Cive, and his Leviathan, about the
Rights of Sovereignty, which no man, that I know, hath so amply
and judiciously handled: I consent with him about the Rights of
exercising Government, but I cannot agree to his means of
acquiring it.(1*) Again: ‘We do but flatter ourselves, if we hope
ever to be governed without an Arbitrary Power. No: we mistake,
the Question is not, Whether there shall be an Arbitrary Power;
but the only point is, Who shall have that Arbitrary Power,
whether one man or many? There never was, nor ever can be any
People govern’d without a Power of making Laws, and every Power
of making Laws must be Arbitrary: For to make a Law according to
Law, is Contradictio in adjecto.'(2*) This, I need hardly say, is
pure Hobbism, the impossibility of a limited government or
‘mixarchy'(3*) is the very burden of Hobbes’s Behemoth.
We need not be surprised, therefore, either at the lack of
specific dealing with Hobbes in Locke’s Essay, or at the ample
internal evidence that Locke had in fact studied Hobbes’s
doctrine with quite as much critical attention as Filmer’s.
There is no occasion for us to trouble ourselves with Locke’s
polemic against Filmer, even so far as it runs over from the
First Treatise into the Essay.(4*) King Charles I’s imaginary
title as right heir of Adam is as grotesque to any modern lawyer
as Adam’s imaginary political dominion over the world can be to
any modern publicist. Good Sir Robert wholly failed, as Locke was
at the pains to show at large,(5*) to prove what was the rule of
succession to Adam’s original title, why it should have been
primogeniture rather than equal division, and whether it is
discoverable by the light of nature or imparted to us by any and
what revelation. It would be too curious, perhaps, to consider
whether he supposed the course of descent to be in fee simple,
tail male, or how otherwise, and whether after the Deluge Noah
took by a new grant and became a new stock of descent, or was in
as of Adam’s old estate. I have known only one man capable of
doing full justice to that theme, my lamented and most learned
friend Mr Challis. Locke does point out that the whole of
Filmer’s theory falls to the ground unless he can make out that
Shem was universal monarch.(6*) Adam’s original title, moreover,
had already been relied on to quite the opposite purpose by the
section of the Independents known as Levellers. They deduced to
all men, as sons of Adam, ‘a natural property, right, and
freedom’ which could be duly exercised only in a pure
democracy.(7*) Sir Robert Filmer, then, is out of the story; nor
is it worth while to guess what kind of reply he could or would
have attempted if he had been living; and we may proceed to
Locke’s own account of political power.
At the outset the object of inquiry is thus defined:
‘Political Power… I take to be a Right of making Laws with
Penalties of Death, and consequently all less Penalties, for the
regulating and preserving of Property, and of employing the Force
of the Community, in the Execution of such Laws, and in the
Defence of the Commonwealth from foreign Injury, and all this
only for the publick Good., The last clause, which I have
italicized, gives the keynote of the whole Essay. Princes and
rulers hold their powers, whatever may be their legal form, not
by an absolute right founded on grant, covenant, or otherwise,
but on conditions in the nature of a trust, and under liability
to forfeiture if the conditions are not fulfilled. Locke was no
lawyer; but it is allowable to believe that the peculiar
doctrines of the English Common Law as to conditional estates,
and of English Courts of Equity as to the duties of trustees,
although the latter was still in its infancy, had a distinct
influence in moulding his dialectic. For absolute originality
there was no room. Every kind of material for political
construction was ready to hand in the polemics of the Reformation
controversy, not to speak of the mediaeval writers who had become
to Locke’s contemporaries far more obscure than they are to us.
The researches of modern scholars, among whom the first place is
undoubtedly Gierke’s, have shown that all possible theoretical
combinations, except the much later system of Cabinet Government
which has democratized our monarchy, were anticipated, if not
developed, by the political writers of the sixteenth century.
Locke’s work was inevitably eclectic, and must have been so even
if it had not been conditioned by a definite practical aim. He is
so far from professing to be original that he is almost
ostentatious in following Hooker, whom he vouches at several
points in fairly copious extracts. Hooker, of course, was an
authority whom Anglicans were bound to treat with respect. The
skill and judgement of Locke’s performance were proved in the
most conclusive manner by the commanding position which the
doctrine formulated by him acquired forthwith and held for nearly
a century.
Locke’s political system, like all such systems for a long
time before and a long time after him, purports to be founded on
natural law; that is to say, on rules of conduct which the light
of reason, without aid of any special revelation, and without
assuming the existence or authority of any form of society, can
discover as generally applicable to man as a rational being.
This, I think, is a sufficient account for our purpose of what
Locke’s contemporaries understood by the law of nature, however
widely they differed in their methods of ascertaining its
principles, and in the results which they derived. Hobbes was as
ready as any man to declare that the laws of nature are immutable
and eternal.'(8*) which however did not prevent his laws of
nature from being unlike other people’s, or other people from
regarding several of Hobbes’s immutably true propositions as not
only mischievous but demonstrably false. It is important for any
fair appreciation of Locke to remember that, although the
mediaeval tradition was interrupted, the mediaeval assumption
that there is a law of nature, and that when ascertained it is
supreme, was still prevalent. This indeed had never been
contradicted, save so far as any Protestant controversialists
maintained with Dumoulin that the text of Scripture came first.
Possibly both Locke and his English opponents would have accepted
the Reformers’ position on that point; it was not one which they
had occasion to consider. But Locke does not confine the
obligations of the law of nature to mortal men. He proves a
fortiori that those obligations are binding on princes (sect.
195). They ‘are so great, and so strong, in the Case of Promises,
that Omnipotency it self can be tied by them. Grants, Promises,
and Oaths are Bonds that hold the Almighty.’ Locke may or may not
have read in an earlier writer rediscovered for modern readers by
Gierke that ‘Deus ipse ex promissione obligatur.’
Thus Locke was bound to begin with the ‘state of nature.’ No
other way of answering either Hobbes or Filmer would have given
formal satisfaction. But this state, for Locke as for the
Schoolmen, is rather a perfectly conscious abstraction than an
attempt to construct the actual origin of society. The question
is what a man’s rights would be in the absence of any positive
institutions. Nevertheless an actual state of nature exists
between independent princes and rulers, and between any subjects
of different states (or jurisdictions) who may meet in a place
where there is no civilized government (sect. 14). Under what law
(to put a modern example) are a Scot and a French Canadian in the
Khaibar Pass? Modern jurisprudence can in most cases lay hold of
some circumstance to obtain a working answer. But the topic may
not be pursued here. Hobbes is met with flat contradiction
(though not explicitly, for the reasons already given) at the
earliest possible point. All men are equal by nature in the sense
that no one man has an original claim on any other’s political
obedience; not in any other sense, and so far we are at one with
Hobbes. Every man is entitled and bound to preserve the existence
which God has given him. But (contrary to Hobbes) he is no less
bound to preserve other men, being his fellow creatures and
fellow servants, ‘when his own preservation comes not in
competition.’ This amounts to saying that the problem is not to
account for the existence of society, but to ascertain its best
or normal mode of existence. I should be the first to admit that
Locke’s way of saying it is both less frank and less sound than
Aristotle’s. As against the opponents he had to reckon with, it
was effective and ingenious, being so framed that no one who
accepted the authority of Scripture could well traverse it
without manifest risk of impiety. Hence every man’s natural power
over others is already not arbitrary, as Hobbes would have it,
but quasi-judicial. Every man has natural judicial and executive
power until such powers are regularly constituted.(9*) Hence,
again, the law of nature authors all necessary acts of
self-defence; and this, even under the rule of settled law, is
the only ground for the jurisdiction of any government over
resident aliens: a curious opinion which seems to be peculiar to
Locke, and gratuitous; for one does not see why the theory of
submission by tacit consent, on which Locke has to rely later, is
less applicable to temporary than to permanent allegiance. This
doctrine of the executive power is doubtless open, says Locke, to
the objection that it makes every man a judge in his own cause.
That is so, and the use of civil government is to remedy such
inconvenience. But absolute monarchy fails just in this respect,
for the absolute monarch so dear to Hobbes and Filmer remains in
a state of nature with respect to his own subjects, and therefore
judge in his own cause.(10*)
Further, there is a ‘plain difference between the state of
Nature, and the state of War, which however some men have
confounded': for ‘men living together according to reason,
without a common superior on earth with authority to judge
between them’ may live in peace if they will, and such is their
will so long as they are reasonable. ‘Want of a common judge with
authority puts all men in a state of nature'; but it is only some
act of aggression, ‘force without right upon a man’s person,’
that makes a state of war. Political authority is instituted to
avoid the risk of a state of war, not to put an end to a state of
war necessarily existing. In short, in the state of nature there
may be peace, though a precarious peace. This is, of course,
intended as a mortal stroke against Hobbes’s theory, and
implicitly denies his position that the worst of governments is
always more tolerable than the state of nature. Slavery is the
result of conquest in a state of war; and freedom is not the
absence of all rule, but ‘is to have a standing rule to live by’
as opposed to being subject to an arbitrary power like a
conqueror’s. Not that even a conqueror’s power is unlimited of
right; for Locke argues in a later chapter, the connexion of
which with his main purpose is not made very clear, that a
conqueror does not acquire general dominion over the property of
the conquered, but is entitled at most to a charge upon it for an
indemnity.
Locke thinks it prudent to establish a natural right of
property (chap. v) antecedent to political institutions. His
solution of the problem is that appropriation is the reward of
labour. A man acquires a right in severally to that which ‘he
hath mixed his labour with.’ The preceding assumption that ‘every
man has a property in his own person’ appeared safe and easy to
Locke, but it is certainly not good law, and was expressly
contradicted by Ulpian (‘dominus membrorum suorum nemo
videtur'(11*)). The rights of every man to personal safety,
reputation, and so forth, are not marketable or transferable, and
are wholly distinct in kind from rights of property. Locke’s
attempt to make an extended conception of Occupation bear the
whole burden of Property was eminently that of an ingenious
layman. It is far from obvious, assuming Locke’s premisses, how
any one can claim the action of the law of nature for
appropriating more than is necessary to support himself and his
family. Locke sees the difficulty, but cannot be said to remove
it. This economic digression, however is now of little interest.
It is explained by Locke’s anxiety to set up as many barriers as
possible against arbitrary interference on the part of the State.
He seems even to ignore the doctrine of Eminent Domain, of which
he must have heard. We cannot suppose that he would have actually
denied the moral right of the State to take private property for
public purposes on payment of just compensation, but he may have
thought it so liable to abuse as to be best kept in the
background.
Property cannot be made secure by natural right alone, and
for the better securing of their properties men have entered into
civil society. The will of the body politic, when formed, is
determined by the will of the majority, and of a bare majority if
there be no different express agreement. For this Locke does not
give any reason but the necessity of the case; it is certain that
much worse ones have been given. As a matter of fact, we now know
that a majority vote has not been generally recognized in archaic
societies; the difficulty of obtaining nominal unanimity was
overcome (as in special cases it still has to be) by various
methods, including varying elements of force and fiction. This
does not apply to the original agreement to form a society, which
is assumed to be unanimous, and includes only the actual parties
to it. Any one who stands out may go his ways and provide for
himself elsewhere. It would seem that the community is entitled
to enforce his departure; it is certain, on Locke’s principles,
that it has not the right to detain him against his will. Could
he agree to stay in an inferior capacity like that of a resident
alien? But it is needless to pursue the auxiliary fictions which
might be devised. A body politic, then, is formed by consent; the
essential term of the agreement is that every member gives up his
natural judicial and executive power to the community (not, as
Hobbes maintains, to an irresponsible sovereign); and this
consent is renewed, tacitly if not expressly, in the person of
every new member; for one cannot accept the benefit of a settled
government except on those terms on which it is offered. Locke is
bold to assert that ‘a child is born a subject of no country or
government,’ and may choose his allegiance for himself at the age
of discretion: this is another opinion which no modern lawyer
will accept, least of all a continental one. It is however
necessary to Locke’s theory, and is one of the many details in
which his individualism, and every scheme of individualism,
breaks down. He guards himself to a certain extent by adding that
a man does not make himself a member of an existing commonweal
merely by accepting the protection of its government. Nothing
short of ‘positive engagement and express promise and compact’
will confer citizenship.
As to the historical objection for want of proof that
governments were in fact originally founded by consent, Locke
answers, first that historical evidence of what men did before
the beginning of history is not to be expected, and secondly that
examples of states being founded by consent, such as Rome and
Venice, are not wanting. More recent and more striking examples
might have been drawn from the settlement of New England, but the
fact that the colonists remained and professed to remain subjects
of the king of England would have given too much of a handle for
controversy; not to mention that the Pilgrim Fathers, whose
deliberate constitution of themselves into a body politic is on
record, were not at all like primitive or pre-historic men. This
last consideration, however, would have had no weight among
seventeenth-century disputants. The general prevalence of
monarchy in early times is admitted as a fact, but not admitted
to be any argument against the origin of government in consent.
Why should not the consent and intention of the founders have
followed the precedent set by the existing usage of families? We
may suppose if we like that ‘a family by degrees grew into a
commonwealth, and the fatherly authority being continued on to
the elder son, every one in his turn growing up under it tacitly
submitted to it, and the easiness and equality of it not
offending any one, every one acquiesced, till time seemed to have
confirmed it and settled a right of succession by prescription’
(sect. 110). This is of some interest as showing exactly how near
Locke could come to a historical point of view.
Summing up his argument (in chaps. vii and viii; I have not
closely followed the order, as it is somewhat clumsy to a modern
reader) Locke states (chap. ix) the reasons which move men to
restrict their natural rights by mutual agreement, and unite into
commonwealths ‘for the mutual preservation of their lives,
liberties, and estates, which I call by the general name,
Property.’ In the state of nature this cannot be assured. The
defects of merely natural society are –
1. Want of established and known law. ‘For tho the Law of
Nature be plain and intelligible to all rational Creatures; yet
Men being biassed by their Interest, as well as ignorant for want
of Study of it, are not apt to allow of it as a Law binding to
them, in the application of it to their particular Cases.’
2. The want of ‘a known and indifferent Judge.’
3. Power to execute sentences; for though every man is, in
default of positive law, ‘both Judge and Executioner of the Law
of Nature,’ the ability is often not proportionate to the right.
Locke, then, admits that mankind are ‘but in an ill
condition’ when left to the state of nature; he is not really
very far from Hobbes’s well-known description of the state of
war. Some surrender of natural right is necessary; where Locke
differs with Hobbes is in holding that, as the surrender is for a
definite purpose, it is not unlimited, but conditional on that
purpose being fulfilled. Accordingly the natural powers of
self-preservation and punishment are put ‘into the hands of the
Society’ not absolutely but ‘to be so far disposed of by the
Legislative, as the good of the Society shall, and the power of
the Commonwealth or its legislative organ ‘can require'; never be
supposed to extend farther than the Common Good.’ Whatever be the
form of government, it must be administered according to known
law, and ‘directed to no other End, but the Peace, Safety, and
publick Good of the People.’ Towards the end of the Essay (chap.
xviii ‘Of Tyranny’) Locke cites an unexpected witness, no other
than King James I, in support of this fundamental position.
The legislative power, once constituted by consent, is the
supreme power in the Commonwealth, but not arbitrary (chap. xi).
We find the reason of its supremacy given very shortly in a later
passage (sec. 150): ‘what can give laws to another must needs be
superior to him.’ But the legislative authority is bound by its
trust and by the law of nature to govern by established laws, to
act in good faith for the common advantage, not to raise taxes
without the consent of the people by themselves or their
deputies, and not to transfer its power of making laws (being
only a delegated power) to any other hands.
This is the most meagre and least satisfying part of Locke’s
work. He does not seem to conceive the possibility of a
legislature having powers limited by express convention but
plenary within those limits; nor does he consider at all the
partial exercise of legislative power by bodies having a merely
delegated authority. He could not be expected to anticipate the
constitutions of self-governing colonies, but he must have known
that the University of Oxford and his own House had statutes: and
he must have desired to see the latter, at any rate, better
secured from arbitrary interference than they had been in his own
case. Yet he does make a very apt reference, in distinguishing
absolute from arbitrary power, to the example of military
discipline, where the officer may have power of life and death
over the soldier, but cannot ‘dispose of one farthing of that
soldier’s estate, or seize one jot of his goods.’ Neither does
Locke touch at all on what is now called constitutional
amendment, except negatively. He seems to assume that nothing of
the kind can be done, in any form of government, without express
provision for that purpose. What makes the omission of argument
on this point the more remarkable is that Sir Thomas Smith,
writing a century and a quarter earlier, had enounced the
unqualified sovereignty of Parliament in terms so full and
explicit that Blackstone, after the lapse of just two centuries,
could add nothing to them; while on the other hand the necessity
of unalterable ‘fundamentals’ in any scheme of government had
been much discussed under the Commonwealth, and maintained by
Cromwell himself among others. Sir Thomas Smith’s Commonwealth of
England is now, for want of a modern edition, not so well known
as it ought to be; but it was more than once reprinted in the
seventeenth century, and one can hardly suppose Locke to have
been unacquainted with it.
In fact there was in Locke’s time respectable authority for
three different theories of the supreme power in England. The
King was absolute, according to the ultra-royalists and Hobbes:
Locke demolished this contention once for all, whatever we may
think of his constructive work. Parliament, or the King in
Parliament, was absolute according to Sir Thomas Smith and the
practice of the Tudor reigns: this view was accepted by
Blackstone and has been the only tenable one among English
lawyers ever since. According to a third doctrine prevalent among
students of the Common Law down to the early part of the
eighteenth century, there are bounds set by natural justice or
‘common right’ even to what the King in Parliament can do; that
is to say, the judges ought to disregard an Act of Parliament if
it is manifestly contrary to natural justice, and perhaps if it
attempts to subvert the foundations of the constitution; for
example, if it purported to abolish the Monarchy or the House of
Commons. Locke’s opinion is in substance a less technical version
of this last; and it is worth while to observe that existing
legal authorities were in his favour. Sir Thomas Smith, whose
opinion ultimately prevailed, was not a common lawyer but a
civilian.
Locke touches on the separation of legislative from executive
power, which was to become a constitutional dogma for his
eighteenth-century followers; he gives only the practical reason
that there is no need for the legislative to be always in being,
but executive power for both domestic and foreign affairs must be
constantly ready for action. The foreign department of government
is distinguished by the not very happy epithet of ‘federative,’
which was not adopted, so far as I know, by any one.
We have now seen the whole of Locke’s principles of polity.
The last seven chapters of the Essay are a justification in
detail, but by way of elaborate allusion, of their application to
English affairs in the Whig theory of the Constitution, and in
particular of the Revolution of 1688. Power being entrusted to
rulers only on condition, that condition is enforceable at need,
whatever be the legal forms of government: ‘there remains still
in the People a supreme power to remove or alter the Legislative,
when they find the Legislative act contrary to the Trust reposed
in them.’ In this sense the Community is supreme, ‘but not as
considered under any form of government, because the power of the
people can never take place till the government be dissolved.’ In
other words, the ultimate reserved power is extra-legal and
superior to the positive forms of the Constitution. Blackstone,
whose criticism of Locke is in the main intelligent and fair,
does not do him complete justice on this point. In a
constitutional Monarchy the ‘single Person’ at the head of the
Executive may ‘in a very tolerable sense’ be called supreme; and
he is entitled to personal allegiance not, as supreme legislator,
but as supreme executor of the law, made by a joint power of him
with others.’ The ‘power of assembling and dismissing the
Legislative’ may be vested in the Executive by the Constitution,
but, like all governmental powers, it is held in trust for the
public, and abuse of it may justify the people in recourse to
their ultimate rights. On the other hand, Locke suggests that the
representation of the people in the Legislative may perhaps be
amended at the discretion of the Executive, provided that such
action is taken in good faith. Parliamentary reform by Order in
Council was not so obviously remote from practical politics two
centuries ago as it, is now; but what English princes down to
Elizabeth had done in the way of creating new boroughs was not of
encouraging example; and I do not know that Locke’s suggestion
was taken seriously by any one. The failure of Temple’s plan to
establish an efficient and independent Privy Council had in truth
made it impossible beforehand. It is an important question, but a
question of modern politics and far outside Locke’s field of
view, whether the latent capacities of the Privy Council may not
yet be developed for the purposes of co-ordinating the resources
of the Empire and giving the self-governing colonies an effective
share — all the more effective for not being too rigidly defined
— in the handling of affairs of common interest.
Prerogative is identified by Locke with executive discretion,
including some (he avoids saying how much) extraordinary
discretion in emergencies; tempered, like legislative power, by
the possibility of forfeiture. Selden’s way with the supposed
mysteries of prerogative(12*) was more straightforward and
profitable; but Locke wanted to conciliate moderate royalists.
It is obvious that Locke’s position as to the reserved power
of dissolving government is not formally unassailable. A Hobbist
would say that a political power ‘not as considered under any
form of government’ is a contradiction in terms, and is not only
extra-legal but anarchical. Dissolve existing government, under
whatever pretence, and you are remitted to the state of war which
we set out to avoid at all costs. Locke’s reply is indicated
later (sections 224, 225). Its effect is that neither Hobbes’s
nor any other dialectic will make men tolerate an intolerably bad
government. In extremity they will act on the belief that
institutions perverted to ends other than the public good ‘are so
far from being better, that they are much worse, than the state
of Nature, or pure Anarchy.’ To this no further answer seems
possible. Nowadays we should all agree with Locke as against
Hobbes that government is the instrument and not the creator of
society. We should also have something to say of the force of
custom as a fly-wheel in the social machine, steadying and
maintaining the common course of affairs notwithstanding
technical or even substantial abeyance of legality. But of this
Hobbes takes no account at all, and Locke only just touches upon
it (‘People are not so easily got out of their old Forms, as some
are apt to suggest,’ 223).
The final chapter ‘Of the Dissolution of Government’
undertakes to show, but still under a transparent disguise of
verbal generality, that the conduct of James II was in fact such
a breach of ‘the fundamental Appointment of the Society’ as
justified the people in exercising their ultimate right of
self-preservation. It does not seem useful to follow Locke
through the details of his propositions, as nothing short of a
minute historical commentary would illustrate them to any
material extent.
The subsequent influence of Locke’s Essay may be traced, as
the President of Corpus has hinted, not only throughout the
formal political philosophy of the eighteenth century, but in the
doctrine received among English constitutional lawyers, and in
the principles enounced by the promoters of American independence
and the conductors of the French Revolution in its early stages.
Blackstone substantially followed Locke, though he borrowed some
ornamental phrases, not to be taken too seriously, from
continental writers. He was prudent enough, indeed, to repudiate
the assumption of mankind having actually lived in a state of
nature, and proceeded to form society by a ‘convention of
individuals';(13*) and, writing as a lawyer, he was naturally
more anxious than Locke to vindicate the Revolution settlement as
not only justifiable but legal. It is none the less true that
Bentham, when he sounded the note of destructive criticism in his
‘Fragment on Government,’ was really attacking Locke’s theory of
the State through Blackstone. Again, Blackstone’s Commentaries
were a vehicle of Locke’s doctrine (though not the only one) to a
numerous and public-spirited audience in the American colonies;
and that doctrine was at the foundation of the several Bills of
Rights of the American States, among which Virginia gave the
first example, and of the Declaration of Independence itself.
More than this, it has been shown by modern American scholars
that these instruments became well known in France, and served as
precedents for the Declaration of the Rights of Man.(14*) On the
whole it seems that Locke had as much to do as Rousseau with the
Principles of 1789, or more. The fatal domination of Rousseau’s
ideas belongs to a later stage. It would be idle to consider what
Locke himself would have thought of his latest spiritual
posterity.

NOTES:

1. Preface to Observations Concerning the Original of Government
(1679).

2. Preface to The Anarchy of a Limited or Mixed Monarchy (1679).

3. This word was restored by Dr Tonnies from Hobbes’s MS.

4. Chap. vi, of ‘Paternal Power’.

5. First treatise, chap. xi, ‘Who Heir?’ And see the Essay, ad.
init.

6. First treatise, sections 139-142; see too sections 32-39.

7. Scherger, The Evolution of Modern Liberty (New York and
London, 1904)), p. 130.

8. Leviathan, chap. xv.

9. There is a strange verbal parallel in that strangest of
mediaeval vagaries the Mirror of Justice, the work, as I
conjecture, of some eccentric foreign clerk settled in England,
whose authorship and purpose are still mysterious. ‘Ordinary
jurisdiction has every one who is not deprived of it by sin(!),
for every one may judge his neighbour according to the holy rules
of right.’ Book IV, chap. ii.

10. This argument is developed in chap. vii.

11. D. 9. 2. ad 1. Aquil. 13, pr.

12. Table Talk, s.v.

13. Comm. i. 47; as to the ultimate remedy of dissolving
government, ib. 162; Blackstone seems to have thought
‘theoretical writers’ a term peculiarly apt to include Locke; as
to the Convention of 1688, ib. 152.

14. See Parts iii and iv of Scherger, The Evolution of Modern
Liberty.

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