actually did give, or permit for their own sakes: Nor can any government be in fact framed but by consent, if not of every subject, yet of as many as can compel the rest; since no man, or council of men, can have personal strength enough to govern multitudes by force, or can claim to themselves and their families any superiority, or natural sovereignty over their fellow-creatures naturally as good as them. Such strength, therefore, where-ever it is, is civil and accumulative strength, derived from the laws and constitutions of the society, of which the governors themselves are but members.
So that to know the jurisdiction of governors, and its limits, we must have recourse to the institution of government, and ascertain those limits by the measure of power, which men in the state of nature have over themselves and one another: And as no man can take from many, who are stronger than him, what they have no mind to give him; and he who has not consent must have force, which is itself the consent of the stronger; so no man can give to another either what is none of his own, or what in its own nature is inseparable from himself; as his religion particularly is.
Every man's religion is his own; nor can the religion of any man, of what nature or figure soever, be the religion of another man, unless he also chooses it; which action utterly excludes all force, power, or government. Religion can never come without conviction, nor can conviction come from civil authority; religion, which is the fear of God, cannot be subject to power, which is the fear of man. It is a relation between God and our own souls only, and consists in a disposition of mind to obey the will of our great Creator, in the manner which we think most acceptable to him. It is independent upon all human directions, and superior to them; and consequently uncontrollable by external force, which cannot reach the free faculties of the mind, or inform the understanding, much less convince it. Religion therefore, which can never be subject to the jurisdiction of another, can never be alienated to another, or put in his power.
Nor has any man in the state of nature power over his own life, or to take away the life of another, unless to defend his own, or what is as much his own, namely, his property. This power therefore, which no man has, no man can transfer to another.
Nor could any man in the state of nature, have a right to violate the property of another; that is, what another had acquired by his art or labour; or to interrupt him in his industry and enjoyments, as long as he himself was not injured by that industry and those enjoyments. No man therefore could transfer to the magistrate that right which he had not himself.
No man in his senses was ever so wild as to give an unlimited power to another to take away his life, or the means of living, according to the caprice, passion, and unreasonable pleasure of that other: But if any man restrained himself from any part of his pleasures, or parted with any portion of his acquisitions, he did it with the honest purpose of enjoying the rest with the greater security, and always in subserviency to his own happiness, which no man will or can willingly and intentionally give away to any other whatsoever.
And if any one, through his own inadvertence, or by the fraud or violence of another, can be drawn into so foolish a contract, he is relievable by the eternal laws of God and reason. No engagement that is wicked and unjust can be executed without injustice and wickedness: This is so true, that I question whether there be a constitution in the world which does not afford, or pretend to afford, a remedy for relieving ignorant, distressed, and unwary men, trepanned into such engagements by artful knaves, or frightened into them by imperious ones. So that here the laws of nature and general reason supersede the municipal and positive laws of nations; and no where oftener than in England. What else was the design, and ought to be the business, of our courts of equity? And I hope whole countries and societies are no more exempted from the privileges and protection of reason and equity, than are private particulars.
Here then is the natural limitation of the magistrate's authority: He ought not to take what no man ought to give; nor exact what no man ought to perform: All he has is given him, and those that gave it must judge of the application. In government there is no such relation as lord and slave, lawless will and blind submission; nor ought to be amongst men: But the only relation is
that of father and c]
glance, benefaction and gratitude, mutual affection and mutual assistance.
So that the nature of government does not alter the natural right of men to liberty, which in all political societies is alike their due: But some governments provide better than others for the security and impartial distribution of that right. There has been always such a constant and certain fund of corruption and malignity in human nature, that it has been rare to find that man, whose views and happiness did not center in the gratification of his appetites, and worst appetites, his luxury, his pride, his avarice, and lust of power; and who considered any publick trust reposed in him, with any other view, than as the means to satiate such unruly and dangerous desires! And this has been most eminently true of great men, and those who aspired to dominion. They were first made great for the sake of the publick, and afterwards at its expense. And if they had been content to have been moderate traitors, mankind would have been still moderately happy; but their ambition and treason observing no degrees, there was no degree of vileness and misery which the poor people did not often feel.
The appetites therefore of men, especially of great men, are carefully to be observed and stayed, or else they will never stay themselves. The experience of every age convinces us, that we must not judge of men by what they ought to do, but by what they will do; and all history affords but few instances of men trusted with great power without abusing it, when with security they could. The servants-of society, that is to say, its magistrates, did almost universally serve it by seizing it, selling it, or plundering it; especially when they were left by the society unlimited as to their duty and wages. In that case these faithful stewards generally took all; and, being servants, made slaves of their masters.
For these reasons, and convinced by woeful and eternal experience, societies found it necessary to lay restraints upon their magistrates or publick servants, and to put checks upon those who would otherwise put chains upon them; and therefore these societies set themselves to model and form national constitutions with such wisdom and art, that the publick interest should be consulted and carried at the same time, when those entrusted with the administration of it were consulting and pursuing their own.
Hence grew the distinction between arbitrary and free governments: Not that more or less power was vested in the one than in the other; nor that either of them lay under less or more obligations, in justice, to protect their subjects, and study their ease, prosperity, and security, and to watch for the same. But the power and sovereignty of magistrates in free countries was so qualified, and so divided into different channels, and committed to the direction of so many different men, with different interests and views, that the majority of them could seldom or never find their account in betraying their trust in fundamental instances. Their emulation, envy, fear, or interest, always made them spies and checks upon one another. By all which means the people have often come at the heads of those who forfeited their heads, by betraying the people.
In despotick governments things went far otherwise, those governments having been framed otherwise; if the same could be called governments, where the rules of publick power were dictated by private and lawless lust; where folly and madness often swayed the scepter, and blind rage wielded the sword. The whole weath of the state, with its civil or military power, being in the prince, the people could have no remedy but death and patience, while he oppressed them by the lump, and butchered them by thousands: Unless perhaps the ambition or personal resentments of some of the instruments of his tyranny procured a revolt, which rarely mended their condition.
The only secret therefore in forming a free government, is to make the interests of the governors and of the governed the same, as far as human policy can contrive. Liberty cannot be preserved any other way. Men have long found, from the weakness and depravity of themselves and one another, that most men will act for interest against duty, as often as they dare. So that to engage them to their duty, interest must be linked to the observance of it, and danger to the breach of it. Personal advantages and security, must be the rewards of duty and obedience; and disgrace, torture, and death, the" punishment of treachery and corruption.
ent to effect this; and that is, to have the concerns of all directed by i``
all, as far as possibly can be: And where the persons interested are too numerous, or live too distant to meet together on all emergencies, they must moderate necessity by prudence, and act by deputies, whose interest is the same with their own, and whose property is so intermingled with theirs, and so engaged upon the same bottom, that principals and deputies must stand and fall together. When the deputies thus act for their own interest, by acting for the interest of their principals; when they can make no law but what they themselves, and their posterity, must be subject to; when they can give no money, but what they must pay their share of; when they can do no mischief, but what must fall upon their own heads in common with their countrymen; their principals may then expect good laws, little mischief, and much frugality.
Here therefore lies the great point of nicety and care in forming the constitution, that the persons entrusted and representing, shall either never have any interest detached from the persons entrusting and represented, or never the means to pursue it. Now to compass this great point effectually, no other way is left, but one of these two, or rather both; namely, to make the deputies so numerous, that there may be no possibility of corrupting the majority; or, by changing them so often, that there is no sufficient time to corrupt them, and to carry the ends of that corruption. The people may be very sure, that the major part of their deputies being honest, will keep the rest so; and that they will all be honest, when they have no temptations to be knaves.
We have some sketch of this policy in the constitution of our several great companies, where the general court, composed of all its members, constitutes the legislature, and the consent of that court is the sanction of their laws; and where the administration of their affairs is put under the conduct of a certain number chosen by the whole. Here every man concerned saw the necessity of securing part of their property, by putting the persons entrusted under proper regulations; however remiss they may be in taking
care of the whole. And if provision had been made, that, as a third part of the directors are to go out every year, so none should stay in above three (as I am told was at first promised), all juggling with
Of the company, had, in a great measure, been prevented; though there were still wanting other limitations, which might have effectually obviated all those evils.
This was the ancient constitution of England: Our kings had neither revenues large enough, nor offices gainful and numerous enough in their disposal, to corrupt any considerable number of members; nor any force to frighten them. Besides, the same Parliament seldom or never met twice: For, the serving in it being found an office of burden, and not of profit, it was thought reasonable that all men qualified should, in their turns, leave their families and domestick concerns, to serve the publick; and their boroughs bore their charges. The only grievance then was, that they were not called together often enough, to redress the grievances which the people suffered from the court during their intermission: And therefore a law was made in Edward III's time, that Parliaments should be holden once a year.'
But this law, like the late Queen's Peace,2 did not execute itself; and therefore the court seldom convened them, but when they wanted money, or had other purposes of their own to serve; and sometimes raised money without them: Which arbitrary proceeding brought upon the publick numerous mischiefs; and, in the reign of King Charles I, a long and bloody civil war. In that reign an act was passed, that they should meet of themselves, if they were not called according to the direction of that law; which was worthily repealed upon the restoration of King Charles II: 3 And in the same kind fit, a great revenue was given him for life, and continued to his brother. By which means these princes were enabled to keep standing troops, to corrupt Parliaments, or to live without them; and to commit such acts of power as brought about, and indeed forced the people upon the late happy Revolution. Soon
1. The statute was passed in 1362 (4 Edw. III, c. 14) and was similar in nature to one previously enacted in 1330.
2. The Peace of Utrecht, a series of treaties signed in Apr. 1713, which ended the War of the Spanish Succession. The settlements agreed to were overturned when Philip V of Spain, in 1717 and 1718, sent an expeditionary force that seized Sardinia and Sicily.
3. The reference is to the Triennial Act of 1641 (16 Car. I, c. 1). It was repealed in 1664 upon passage of a new act (16 Car. II, c. 1).