CHAP. XI.

Of the Extent of the Legislative Power.

Sec. 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
common-wealth, 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 sith 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.)
Sec. 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 common-wealth; 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
cloth, or can give up to the common-wealth, 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.)
Sec. 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 properties 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 cloth seem
unreasonable. Ibid. l. i. sect. 10.)
Sec. 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 common-wealth 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.
Sec. 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 common-
wealth, 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.
Sec. 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 common-wealth,
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.
Sec. 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?
Sec. 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
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.
Sec. 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 common-wealth, 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.