A. THE HEREDITARY PRINCIPLE
In the years 1689 and 1690, just after the Revolution of 1688, Locke wrote his two Treatises on Government, of which the second especially is very important in the history of political ideas.
The first of these two treatises is a criticism of the doctrine of hereditary power. It is a reply to Sir Robert Filmer's Patriarcha: or The Natural Power of Kings, which was published in 1680, but written under Charles I. Sir Robert Filmer, who was a devout upholder of the divine right of kings, had the misfortune to live till 1653, and must have suffered acutely from the execution of Charles I and the victory of Cromwell. But Patriarcha was written before these sad events, though not before the Civil War, so that it naturally shows awareness of the existence of subversive doctrines. Such doctrines, as Filmer points out, were not new in 1640. In fact, both Protestant and Catholic divines, in their contest with Catholic and Protestant monarchs respectively, had vigorously affirmed the right of subjects to resist tyrannical princes, and their writings supplied Sir Robert with abundant material for controversy.
Sir Robert Filmer was knighted by Charles I, and his house is said to have been plundered by the Parliamentarians ten times. He thinks it not unlikely that Noah sailed up the Mediterranean and allotted Africa, Asia, and Europe to Ham, Shem, and Japheth respectively. He held that, by the English Constitution, the Lords only give counsel to the king, and the Commons have even less power; the king, he says, alone makes the laws, which proceed solely from his will. The king, according to Filmer, is perfectly free from all human control, and cannot be bound by the acts of his predecessors, or even by his own, for 'impossible it is in nature that a man should give a law unto himself'.
Filmer, as these opinions show, belonged to the most extreme section of the Divine Right party.
Patriarcha begins by combating the 'common opinion' that 'mankind is naturally endowed and born with freedom from all subjection, and at liberty to choose what form of government it please, and the power which any one man hath over others was first bestowed according to the discretion of the multitude.' 'This tenet,' he says, 'was first hatched in the schools.' The truth, according to him, is quite different; it is, that originally God bestowed the kingly power upon Adam, from whom it descended to his heirs, and ultimately reached the various monarchs of modern times. Kings now, he assures us, 'either are, or are to be reputed, the next heirs to those first progenitors who were at first the natural parents of the whole people'. Our first parent, it seems, did not adequately appreciate his privilege as universal monarch, for 'the desire of liberty was the first cause of the fall of Adam'. The desire of liberty is a sentiment which Sir Robert Filmer regards as impious.
The claims made by Charles I, and by his protagonists on his behalf, were in excess of what earlier times would have conceded to kings. Filmer points out that Parsons, the English Jesuit, and Buchanan, the Scotch Calvinist, who agree in almost nothing else, both maintain that sovereigns can be deposed by the people for misgovernment. Parsons, of course, was thinking of the Protestant Queen Elizabeth, and Buchanan of the Catholic Mary Queen of Scots. The doctrine of Buchanan was sanctioned by success, but that of Parsons was disproved by his colleague Campion's execution.
Even before the Reformation, theologians tended to believe in setting limits to kingly power. This was part of the battle between the Church and the State which raged throughout Europe during most of the Middle Ages. In this battle, the State depended upon armed force, the Church upon cleverness and sanctity. As long as the Church had both these merits, it won; when it came to have cleverness only, it lost. But the things which eminent and holy men had said against the power of kings remained on record. Though intended in the interests of the Pope, they could be used to support the rights of the people to self-government. 'The subtle schoolmen,' says Filmer, 'to be sure to thrust down the king below the Pope, thought it the safest course to advance the people above the king, so that the papal power might take the place of the regal.' He quotes the theologian Bellarmine as saying that secular power is bestowed by men (i.e. not by God), and 'is in the people unless they bestow it on a prince'; thus Bellarmine, according to Filmer, 'makes God the immediate author of a democratical estate'—which sounds to him as shocking as it would to a modern plutocrat to say that God is the immediate author of Bolshevism.
Filmer derives political power, not from any contract, nor yet from any consideration of the public good, but entirely from the authority of a father over his children. His view is: that the source of regal authority is subjection of children to parents; that the patriarchs in Genesis were monarchs; that kings are the heirs of Adam, or at least are to be regarded as such; that the natural rights of a king are the same as those of a father; and that, by nature, sons are never free of paternal power, even when the son is adult and the parent is in his dotage.
This whole theory seems to a modern mind so fantastic that it is hard to believe it was seriously maintained. We are not accustomed to deriving political rights from the story of Adam and Eve. We hold it obvious that parental power should cease completely when the son or daughter reaches the age of twenty-one, and that before that it should be very strictly limited both by the State and by the right of independent initiative which the young have gradually acquired. We recognize that the mother has rights at least equal to those of the father. But apart from all these considerations, it would not occur to any modern man outside Japan to suppose that political power should be in any way assimilated to that of parents over children. In Japan, it is true, a theory closely similar to Filmer's is held, and must be taught by all professors and school-teachers. The Mikado can trace his descent from the Sun Goddess, whose heir he is; other Japanese are also descended from her, but belong to cadet branches of her family. Therefore the Mikado is divine, and all resistance to him is impious. This theory was, in the main, invented in 1868, but is now alleged in Japan to have been handed down by tradition ever since the creation of the world.
The attempt to impose a similar theory upon Europe—of which attempt Filmer's Patriarcha is part—was a failure. Why? The acceptance of such a theory is in no way repugnant to human nature; for example, it was held, apart from Japan, by the ancient Egyptians, and by the Mexicans and Peruvians before the Spanish conquest. At a certain stage of human development it is natural. Stuart England had passed this stage, but modern Japan has not.
The defeat of theories of divine right, in England, was due to two main causes. One was the multiplicity of religions; the other was the conflict for power between the monarchy, the aristocracy, and the higher bourgeoisie. As for religion: the king, since the reign of Henry VIII, was the head of the Church of England, which was opposed both to Rome and to most of the Protestant sects. The Church of England boasted of being a compromise: the Preface to the Authorized Version begins 'It hath been the wisdom of the Church of England, ever since the first compiling of her public liturgy, to keep the mean between two extremes.' On the whole this compromise suited most people. Queen Mary and King James II tried to drag the country over to Rome, and the victors in the Civil War tried to drag it over to Geneva, but these attempts failed, and after 1688 the power of the Church of England was unchallenged. Nevertheless, its opponents survived. The Nonconformists, especially, were vigorous men, and were numerous among the rich merchants and bankers, whose power was continually increasing.
The theological position of the king was somewhat peculiar, for he was not only head of the Church of England, but also of the Church of Scotland. In England, he had to believe in bishops and reject Calvinism; in Scotland, he had to reject bishops and believe in Calvinism. The Stuarts had genuine religious convictions, which made this ambiguous attitude impossible for them, and caused them even more trouble in Scotland than in England. But after 1688 political convenience led kings to acquiesce in professing two religions at once. This militated against zeal, and made it difficult to regard them as divine persons. In any case, neither Catholics nor Nonconformists could acquiesce in any religious claims on behalf of the monarchy.
The three parties of king, aristocracy, and rich middle class made different combinations at different times. Under Edward IV and Louis XI, king and middle class combined against the aristocracy; under Louis XIV, king and aristocracy combined against the middle class; in England in 1688, aristocracy and middle class combined against the king. When the king had one of the other parties on his side, he was strong; when they combined against him, he was weak.
For these reasons among others, Locke had no difficulty in demolishing Filmer's arguments.
So far as reasoning is concerned, Locke has, of course, an easy task. He points out that, if parental power is what is concerned, the mother's power should be equal to the father's. He lays stress on the injustice of primo-geniture, which is unavoidable if inheritance is to be the basis of monarchy. He makes play with the absurdity of supposing that actual monarchs are, in any real sense, the heirs of Adam. Adam can have only one heir, but no one knows who he is. Would Filmer maintain, he asks, that, if the true heir could be discovered, all existing monarchs should lay their crowns at his feet? If Filmer's basis for monarchy were accepted, all kings, except at most one, would be usurpers, and would have no right to demand the obedience of their de facto subjects. Moreover paternal power, he says, is temporary, and extends not to life or property.
For such reasons, apart from more fundamental grounds, heredity cannot, according to Locke, be accepted as the basis of legitimate political power. Accordingly, in his Second Treatise on Government he seeks a more defensible basis.
The hereditary principle has almost vanished from politics. During my lifetime, the emperors of Brazil, China, Russia, Germany, and Austria have disappeared, to be replaced by dictators who do not aim at the foundation of a hereditary dynasty. Aristocracy has lost its privileges throughout Europe, except in England, where they have become little more than a historical form. All this, in most countries, is very recent, and has much to do with the rise of dictatorships, since the traditional basis of power has been swept away, and the habits of mind required for the successful practice of democracy have not had time to grow up. There is one great institution that has never had any hereditary element, namely, the Catholic Church. We may expect the dictatorships, if they survive, to develop gradually a form of government analogous to that of the Church. This has already happened in the case of the great corporations in America, which have, or had until Pearl Harbour, powers almost equal to those of the government.
It is curious that the rejection of the hereditary principle in politics has had almost no effect in the economic sphere in democratic countries. (In totalitarian states, economic power has been absorbed by political power.) We still think it natural that a man should leave his property to his children; that is to say, we accept the hereditary principle as regards economic power while rejecting it as regards political power. Political dynasties have disappeared, but economic dynasties survive. I am not at the moment arguing either for or against this different treatment of the two forms of power; I am merely pointing out that it exists, and that most men are unconscious of it. When you consider how natural it seems to us that the power over the lives of others resulting from great wealth should be hereditary, you will understand better how men like Sir Robert Filmer could take the same view as regards the power of kings, and how important was the innovation represented by men who thought as Locke did.
To understand how Filmer's theory could be believed, and how Locke's contrary theory could seem revolutionary, we have only to reflect that a kingdom was regarded then as a landed estate is regarded now. The owner of land has various important legal rights, the chief of which is the power of choosing who shall be on the land. Ownership can be transmitted by inheritance, and we feel that the man who has inherited an estate has a just claim to all the privileges that the law allows him in consequence. Yet at bottom his position is the same as that of the monarchs whose claims Sir Robert Filmer defends. There are at the present day in California a number of huge estates the title to which is derived from actual or alleged grants by the king of Spain. He was only in a position to make such grants (a) because Spain accepted views similar to Filmer's, and (b) because the Spaniards were able to defeat the Indians in battle. Nevertheless we hold the heirs of those to whom he made grants to have a just title. Perhaps in future this will seem as fantastic as Filmer seems now.
B. THE STATE OF NATURE, AND NATURAL LAW
Locke begins his second Treatise on Government by saying that, having shown the impossibility of deriving the authority of government from that of a father, he will now set forth what he conceives to be the true origin of government.
He begins by supposing what he calls a 'state of nature', antecedent to all human government. In this state there is a 'law of nature', but the law of nature consists of divine commands, and is not imposed by any human legislator. It is not clear how far the state of nature is, for Locke, a mere illustrative hypothesis, and how far he supposes it to have had a historical existence; but I am afraid that he tended to think of it as a stage that had actually occurred. Men emerged from the state of nature by means of a social contract which instituted civil government. This also he regarded as more or less historical. But for the moment it is the state of nature that concerns us.
What Locke has to say about the state of nature and the law of nature is, in the main, not original, but a repetition of medieval scholastic doctrines. Thus St Thomas Aquinas says:
'Every law framed by man bears the character of a law exactly to that extent to which it is derived from the law of nature. But if on any point it is in conflict with the law of nature, it at once ceases to be a law; it is a mere perversion of law.'1
Throughout the Middle Ages, the law of nature was held to condemn 'usury', i.e. lending money at interest. Church property was almost entirely in land, and landowners have always been borrowers rather than lenders. But when Protestantism arose, its support—especially the support of Calvinism—came chiefly from the rich middle class, who were lenders rather than borrowers Accordingly first Calvin, then other Protestants, and finally the Catholic Church, sanctioned 'usury'. Thus natural law came to be differently conceived, but no one doubted there being such a thing.
Many doctrines which survived the belief in natural law owe their origin to it; for example, laissez-faire and the rights of man. These doctrines are connected, and both have their origins in puritanism. Two quotations given by Tawney will illustrate this. A committee of the House of Commons in 1604 stated:
'All free subjects are born inheritable, as to their land, and also as to the free exercise of their industry, in those trades whereto they apply themselves and whereby they are to live.'
And in 1656 Joseph Lee writes:
'It is an undeniable maxim that every one by the light of nature and reason will do that which makes for his greatest advantage…. The advancement of private persons will be the advantage of the public.'
Except for the words 'by the light of nature and reason', this might have been written in the nineteenth century.
In Locke's theory of government, I repeat, there is little that is original. In this Locke resembles most of the men who have won fame for their ideas. As a rule, the man who first thinks of a new idea is so much ahead of his time that everyone thinks him silly, so that he remains obscure and is soon forgotten. Then, gradually, the world becomes ready for the idea, and the man who proclaims it at the fortunate moment gets all the credit. So it was, for example, with Darwin; poor Lord Monboddo was a laughing-stock.
In regard to the state of nature, Locke was less original than Hobbes, who regarded it as one in which there was war of all against all, and life was nasty, brutish, and short. But Hobbes was reputed an atheist. The view of the state of nature and of natural law which Locke accepted from his predecessors cannot be freed from its theological basis; where it survives without this, as in much modern liberalism, it is destitute of clear logical foundation.
The belief in a happy 'state of nature' in the remote past is derived partly from the biblical narrative of the age of the patriarchs, partly from the classical myth of the golden age. The general belief in the badness of the remote past only came with the doctrine of evolution.
The nearest thing to a definition of the state of nature to be found in Locke is the following:
'Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature.'
This is not a description of the life of savages, but of an imagined community of virtuous anarchists, who need no police or law-courts because they always obey 'reason', which is the same as 'natural law', which, in turn, consists of those laws of conduct that are held to have a divine origin. (For example, 'Thou shalt not kill' is part of natural law, but the rule of the roads is not.)
Some further quotations will make Locke's meaning clearer.
'To understand political power right [he says], and derive it from its original, we must consider what state 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.
'A state also of 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.
'But though this [the state of nature] be a state of liberty, yet it is not a state of licence: though man in that state has 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'2 (for we are all God's property).3
It presently appears, however, that, where most men are in the state of nature, there may nevertheless be some men who do not live according to the law of nature, and that the law of nature provides, up to a point, what may be done to resist such criminals. In a state of nature, we are told, every man can defend himself and what is his. 'Whoso sheddeth man's blood, by man shall his blood be shed' is part of the law of nature. I may even kill a thief while he is engaged in stealing my property, and this right survives the institution of government, although, where there is government, if the thief gets away I must renounce private vengeance and resort to the law.
The great objection to the state of nature is that, while it persists, every man is the judge in his own cause, since he must rely upon himself for the defence of his rights. For this evil, government is the remedy, but this is not a natural remedy. The state of nature, according to Locke, was evaded by a compact to create a government. Not any compact ends the state of nature, but only that of making one body politic. The various governments of independent States are now in a state of nature towards each other.
The state of nature, we are told in a passage presumably directed against Hobbes, is not the same as a state of war, but more nearly its opposite. After explaining the right to kill a thief, on the ground that the thief may be deemed to be making war upon me, Locke says:
'And here we have the plain "difference between the state of nature and the state of war", which, however some men have confounded, are as far distant, as a state of peace, goodwill, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction are from one another.'
Perhaps the law of nature must be regarded as having a wider scope than the state of nature, since the former deals with thieves and murderers, while in the latter there are no such malefactors. This, at least, suggests a way out of an apparent inconsistency in Locke, consisting in his sometimes representing the state of nature as one where everyone is virtuous, and at other times discussing what may rightly be done in a state of nature to resist the aggressions of wicked men.
Some parts of Locke's natural law are surprising. For example, he says that captives in a just war are slaves by the law of nature. He says also that by nature every man has a right to punish attacks on himself or his property, even by death. He makes no qualification, so that if I catch a person engaged in petty pilfering I have, apparently, by the law of nature, a right to shoot him.
Property is very prominent in Locke's political philosophy, and is, according to him, the chief reason for the institution of civil government:
'The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of nature there are many things wanting.'
The whole of this theory of the state of nature and natural law is in one sense clear but in another very puzzling. It is clear what Locke thought, but it is not clear how he can have thought it. Locke's ethic, as we saw, is utilitarian, but in his consideration of 'rights' he does not bring in utilitarian considerations. Something of this pervades the whole philosophy of law as taught by lawyers. Legal rights can be defined: broadly speaking, a man has a legal right when he can appeal to the law to safeguard him against injury. A man has in general a legal right to his property, but if he has (say) an illicit store of cocaine, he has no legal remedy against a man who steals it. But the lawgiver has to decide what legal rights to create, and falls back naturally on the conception of 'natural' rights, as those which the law should secure.
I am attempting to go as far as is possible towards stating something like Locke's theory in untheological terms. If it is assumed that ethics, and the classification of acts as 'right' and 'wrong', is logically prior to actual law, it becomes possible to restate the theory in terms not involving mythical history. To arrive at the law of nature, we may put the question in this way: in the absence of law and government, what classes of acts by A against B justify B in retaliating against A, and what sort of retaliation is justified in different cases? It is generally held that no man can be blamed for defending himself against a murderous assault, even, if necessary, to the extent of killing the assailant. He may equally defend his wife and children, or, indeed, any member of the general public. In such cases, the existence of the law against murder becomes irrelevant, if, as may easily happen, the man assaulted would be dead before the aid of the police could be invoked; we have, therefore, to fall back on 'natural' right. A man also has a right to defend his property, though opinions differ as to the amount of injury he may justly inflict upon a thief.
In the relations between States, as Locke points out, 'natural' law is relevant. In what circumstances is war justified? So long as no international government exists, the answer to this question is purely ethical, not legal; it must be answered in the same way as it would be for an individual in a state of anarchy.
Legal theory will be based upon the view that the 'rights' of individuals should be protected by the State. That is to say, when a man suffers the kind of injury which would justify retaliation according to the principles of natural law, positive law should enact that the retaliation shall be done by the State. If you see a man making a murderous assault upon your brother, you have a right to kill him, if you cannot otherwise save your brother. In a state of nature—so, at least, Locke holds—if a man has succeeded in killing your brother, you have a right to kill him. But where law exists, you lose this right, which is taken over by the State. And if you kill in self-defence or in defence of another, you will have to prove to a law-court that this was the reason for the killing.
We may then identify 'natural law' with moral rules in so far as they are independent of positive legal enactments. There must be such rules if there is to be any distinction between good and bad laws. For Locke, the matter is simple, since moral rules have been laid down by God, and are to be found in the Bible. When this theological basis is removed, the matter becomes more difficult. But so long as it is held that there is an ethical distinction between right actions and wrong ones, we can say: Natural law decides what actions would be ethically right, and what wrong, in a community that had no government; and positive law ought to be, as far as possible, guided and inspired by natural law.
In its absolute form, the doctrine that an individual has certain inalienable rights is incompatible with utilitarianism, i.e. with the doctrine that right acts are those that do most to promote the general happiness. But in order that a doctrine may be a suitable basis for law, it is not necessary that it should be true in every possible case, but only that it should be true in an overwhelming majority of cases. We can all imagine cases in which murder would be justifiable, but they are rare, and do not afford an argument against the illegality of murder. Similarly it may be—I am not saying that it is—desirable, from a utilitarian point of view, to reserve to each individual a certain sphere of personal liberty. If so, the doctrine of the Rights of Man will be a suitable basis for the appropriate laws, even though these rights be subject to exceptions. A utilitarian will have to examine the doctrine, considered as a basis for laws, from the point of view of its practical effects; he cannot condemn it ab initio as contrary to his own ethic.
C. THE SOCIAL CONTRACT
In the political speculation of the seventeenth century, there were two main types of theory as to the origin of government. Of one type we have had an example in Sir Robert Filmer: this type maintained that God had bestowed power on certain persons, and that these persons, or their heirs, constituted the legitimate government, rebellion against which is not only treason, but impiety. This view was sanctioned by sentiments of immemorial antiquity: in almost all early civilizations, the king is a sacred person. Kings, naturally, considered it an admirable theory. Aristocracies had motives for supporting it and motives for opposing it. In its favour was the fact that it emphasized the hereditary principle, and that it gave august support to resistance against the upstart merchant class. Where the middle class was more feared or hated by the aristocracy than the king was, these motives prevailed. Where the contrary was the case, and especially where the aristocracy had a chance of obtaining supreme power itself, it tended to oppose the king, and therefore to reject theories of divine right.
The other main type of theory—of which Locke is a representative—maintained that civil government is the result of a contract, and is an affair purely of this world, not something established by divine authority. Some writers regarded the social contract as a historical fact, others as a legal fiction; the important matter, for all of them, was to find a terrestrial origin for governmental authority. In fact, they could not think of any alternative to divine right except the supposed contract. It was felt by all except rebels that some reason must be found for obeying governments, and it was not thought sufficient to say that for most people the authority of government is convenient. Government must, in some sense, have a right to exact obedience, and the right conferred by a contract seemed the only alternative to a divine command. Consequently the doctrine that government was instituted by a contract was popular with practically all opponents of the divine right of kings. There is a hint of this theory in Thomas Aquinas, but the first serious development of it is to be found in Grotius.
The contract doctrine was capable of taking forms which justified tyranny. Hobbes, for example, held that there was a contract among the citizens to hand over all power to the chosen sovereign, but the sovereign was not a party to the contract, and therefore necessarily acquired unlimited authority. This theory, at first, might have justified Cromwell's totalitarian State; after the Restoration, it justified Charles II. In Locke's form of the doctrine, however, the government is a party to the contract, and can be justly resisted if it fails to fulfil its part of the bargain. Locke's doctrine is, in essence, more or less democratic, but the democratic element is limited by the view (implied rather than expressed) that those who have no property are not to be reckoned as citizens.
Let us now see just what Locke has to say on our present topic.
There is first a definition of political power:
'Political power I take to be the right of making laws, with penalty 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 public good.'
Government, we are told, is a remedy for the inconveniences that arise, in the state of nature, from the fact that, in that state, every man is the judge in his own cause. But where the monarch is a party to the dispute, this is no remedy, since the monarch is both judge and plaintiff. These considerations lead to the view that governments should not be absolute, and that the judiciary should be independent of the executive. Such arguments had an important future both in England and in America, but for the moment we are not concerned with them.
By nature, Locke says, every man has the right to punish attacks on himself or his property, even by death. There is political society there, and there only, where men have surrendered this right to the community or to the law.
Absolute monarchy is not a form of civil government, because there is no neutral authority to decide disputes between the monarch and a subject; in fact the monarch, in relation to his subjects, is still in a state of nature. It is useless to hope that being a king will make a naturally violent man virtuous.
'He that would have been insolent and injurious in the woods of America would not probably be much better in a throne, where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it.'
Absolute monarchy is as if men protected themselves against pole-cats and foxes, 'but are content, nay think it safety, to be devoured by lions'.
Civil society involves the rule of the majority, unless it is agreed that a greater number shall be required. (As, for example, in the United States, for a change in the Constitution or the ratification of a treaty.) This sounds democratic, but it must be remembered that Locke assumes the exclusion of women and the poor from the rights of citizenship.
'The beginning of politic society depends upon the consent of the individuals to join into and make one society.' It is argued—somewhat half-heartedly—that such consent must, at some time, have actually taken place, though it is admitted that the origin of government antedates history everywhere except among the Jews.
The civil compact which institutes government binds only those who made it; the son must consent afresh to a compact made by his father. (It is clear how this follows from Locke's principles, but it is not very realistic. A young American who, on attaining the age of twenty-one, announces 'I refuse to be bound by the contract which inaugurated the United States' will find himself in difficulties.)
The power of the government by contract, we are told, never extends beyond the common good. A moment ago I quoted a sentence as to the powers of government, ending 'and all this only for the public good'. It seems not to have occurred to Locke to ask who was to be the judge of the common good. Obviously, if the government is the judge it will always decide in its own favour. Presumably Locke would say that the majority of the citizens is to be the judge. But many questions have to be decided too quickly for it to be possible to ascertain the opinion of the electorate; of these peace and war are perhaps the most important. The only remedy in such cases is to allow to public opinion or its representatives some power—such as impeachment—of subsequently punishing executive officers for acts that are found to have been unpopular. But often this is a very inadequate remedy.
I quoted previously a sentence which I must now quote again:
'The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property.'
Consistently with this doctrine Locke declares that:
'The supreme power cannot take from any man any part of his property without his own consent.'
Still more surprising is the statement that, although military commanders have power of life and death over their soldiers, they have no power of taking money. (It follows that, in any army, it would be wrong to punish minor breaches of discipline by fines, but permissible to punish them by bodily injury, such as flogging. This shows the absurd lengths to which Locke is driven by his worship of property.)
The question of taxation might be supposed to raise difficulties for Locke, but he perceives none. The expense of government, he says, must be borne by the citizens, but with their consent, i.e. with that of the majority. But why, one asks, should the consent of the majority suffice? Every man's consent, we were told, is necessary to justify the government in taking any part of his property. I suppose his tacit consent to taxation in accordance with majority decision is presumed to be involved in his citizenship, which, in turn, is presumed to be voluntary. All this is, of course, sometimes quite contrary to the facts. Most men have no effective liberty of choice as to the State to which they shall belong, and none have liberty, nowadays, to belong to no State. Suppose, for example, you are a pacifist, and disapprove of war. Wherever you live, the government will take some of your property for warlike purposes. With what justice can you be compelled to submit to this? I can imagine many answers, but I do not think any of them are consistent with Locke's principles. He thrusts in the maxim of majority rule without adequate consideration, and offers no transition to it from his individualistic premisses, except the mythical social contract.
The social contract, in the sense required, is mythical even when, at some former period, there actually was a contract creating the government in question. The United States is a case in point. At the time when the Constitution was adopted, men had liberty of choice. Even then, many voted against it, and were therefore not parties to the contract. They could, of course, have left the country, and by remaining were deemed to have become bound by a contract to which they had not assented. But in practice it is usually difficult to leave one's country. And in the case of men born after the adoption of the Constitution their consent is even more shadowy.
The question of the rights of the individual as against the government is a very difficult one. It is too readily assumed by democrats that, when the government represents the majority, it has a right to coerce the minority. Up to a point, this must be true, since coercion is of the essence of government. But the divine right of majorities, if pressed too far, may become almost as tyrannical as the divine right of kings. Locke says little on this subject in his Essays on Government, but considers it at some length in his Letters on Toleration, where he argues that no believer in God should be penalized on account of his religious opinions.
The theory that government was created by a contract is, of course, pre-evolutionary. Government, like measles and whooping-cough, must have grown up gradually, though, like them, it could be introduced suddenly into new regions such as the South Sea Islands. Before men had studied anthropology they had no idea of the psychological mechanisms involved in the beginnings of government, or of the fantastic reasons which lead men to adopt institutions and customs that subsequently prove useful. But as a legal fiction, to justify government, the theory of the social contract has some measure of truth.
From what has been said hitherto about Locke's views on property, it might seem as though he were the champion of the great capitalists against both their social superiors and their social inferiors, but this would be only a half-truth. One finds in him, side by side and unreconciled, doctrines which foreshadow those of developed capitalism and doctrines which adumbrate a more nearly socialistic outlook. It is easy to misrepresent him by one-sided quotations, on this topic as on most others.
I will put down, in the order in which they occur, Locke's principal dicta on the subject of property.
We are told first that every man has private property in the produce of his own labour—or, at least, should have. In pre-industrial days this maxim was not so unrealistic as it has since become. Urban production was mainly by handicraftsmen who owned their tools and sold their produce. As for agricultural production, it was held by the school to which Locke belonged that peasant proprietorship would be the best system. He states that a man may own as much land as he can till, but not more. He seems blandly unaware that, in all the countries of Europe, the realization of this programme would be hardly possible without a bloody revolution. Everywhere the bulk of agricultural land belonged to aristocrats, who exacted from the farmers either a fixed proportion of the produce (often a half), or a rent which could be varied from time to time. The former system prevailed in France and Italy, the latter in England. Farther East, in Russia and Prussia, the workers were serfs, who worked for the landowner and had virtually no rights. The old system was ended in France by the French Revolution, in northern Italy and Western Germany by the conquests of the French revolutionary armies. Serfdom was abolished in Prussia as a result of defeat by Napoleon, and in Russia as a result of defeat in the Crimean War. But in both countries the aristocrats retained their landed estates. In East Prussia, this system, though drastically controlled by the Nazis, survived till the present day; in Russia and what are now Lithuania, Latvia, and Esthonia, the aristocrats were dispossessed by the Russian Revolution. In Hungary, and Poland they survived; in Eastern Poland they were 'liquidated' by the Soviet Government in 1940. The Soviet Government, however, has done everything in its power to substitute collective farming rather than peasant proprietorship throughout Russia.
In England the development has been more complex. In Locke's day, the position of the rural labourer was mitigated by the existence of commons, on which he had important rights, which enabled him to raise a considerable part of his food himself. This system was a survival from the Middle Ages, and was viewed with disapproval by modern-minded men, who pointed out that from the point of view of production it was wasteful. Accordingly, there was a movement for enclosure of commons, which began under Henry VIII and continued under Cromwell, but did not become strong until about 1750. From that time onward, for about ninety years, one common after another was enclosed and handed over to the local landowners. Each enclosure required an Act of Parliament, and the aristocrats who controlled both Houses of Parliament ruthlessly used their legislative power to enrich themselves, while thrusting agricultural labourers down to the verge of starvation. Gradually, owing to the growth of industry, the position of agricultural labourers improved, since otherwise they could not be prevented from migrating to the towns. At present, as a result of the taxation introduced by Lloyd George, the aristocrats have been compelled to part with most of their rural property. But those who also own urban or industrial property have been able to hang on to their estates. There has been no sudden revolution, but a gradual transition which is still in progress. At present, those aristocrats who are still rich owe their wealth to urban or industrial property.
This long development may be regarded, except in Russia, as in accordance with Locke's principles. The odd thing is that he could announce doctrines requiring so much revolution before they could be put into effect, and yet show no sign that he thought the system existing in his day unjust, or that he was aware of its being different from the system that he advocated.
The labour theory of value—i.e. the doctrine that the value of a product depends upon the labour expended upon it—which some attribute to Karl Marx and others to Ricardo, is to be found in Locke, and was suggested to him by a line of predecessors stretching back to Aquinas. As Tawney says, summarizing scholastic doctrine:
'The essence of the argument was that payment may properly be demanded by the craftsmen who make the goods, or by the merchants who transport them, for both labour in their vocation and serve the common need. The unpardonable sin is that of the speculator or middleman, who snatches private gain by the exploitation of public necessities. The true descendant of the doctrines of Aquinas is the labour theory of value. The last of the schoolmen was Karl Marx.'
The labour theory of value has two aspects, one ethical, the other economic. That is to say, it may assert that the value of a product ought to be proportional to the labour expended on it, or that in fact the labour regulates the price. The latter doctrine is only approximately true, as Locke recognizes. Nine tenths of value, he says, is due to labour; but as to the other tenth he says nothing. It is labour, he says, that puts the difference of value on everything. He instances land in America occupied by Indians, which has almost no value because the Indians do not cultivate it. He does not seem to realize that land may acquire value as soon as people are willing to work on it, and before they have actually done so. If you own a piece of desert land on which somebody else finds oil, you can sell it for a good price without doing any work on it. As was natural in his day, he does not think of such cases, but only of agriculture. Peasant proprietorship, which he favours, is inapplicable to such things as large-scale mining, which require expensive apparatus and many workers.
The principle that a man has a right to the produce of his own labour is useless in an industrial civilization. Suppose you are employed in one operation in the manufacture of Ford cars, how is anyone to estimate what proportion of the total output is due to your labour? Or suppose you are employed by a railway company in the transport of goods, who can decide what share you shall be deemed to have in the production of the goods? Such considerations have led those who wish to prevent the exploitation of labour to abandon the principle of the right to your own produce in favour of more socialistic methods of organizing production and distribution.
The labour theory of value has usually been advocated from hostility to some class regarded as predatory. The Schoolmen, in so far as they held it, did so from opposition to usurers, who were mostly Jews. Ricardo held it in opposition to landowners, Marx to capitalists. But Locke seems to have held it in a vacuum, without hostility to any class. His only hostility is to monarchs, but this is unconnected with his views on value.
Some of Locke's opinions are so odd that I cannot see how to make them sound sensible. He says that a man must not have so many plums that they are bound to go bad before he and his family can eat them; but he may have as much gold and as many diamonds as he can lawfully get, because gold and diamonds do not go bad. It does not occur to him that the man who has the plums might sell them before they go bad.
He makes a great deal of the imperishable character of the precious metals, which, he says, are the source of money and inequality of fortune. He seems, in an abstract and academic way, to regret economic inequality, but he certainly does not think that it would be wise to take such measures as might prevent it. No doubt he was impressed, as all the men of his time were, by the gains to civilization that were due to rich men, chiefly as patrons of art and letters. The same attitude exists in modern America, where science and art are largely dependent upon the benefactions of the very rich. To some extent, civilization is furthered by social injustice. This fact is the basis of what is most respectable in conservatism.
E. CHECKS AND BALANCES
The doctrine that the legislative, executive, and judicial functions of government should be kept separate is characteristic of liberalism; it arose in England in the course of resistance to the Stuarts, and is clearly formulated by Locke, at least as regards the legislature and the executive. The legislative and executive must be separate, he says, to prevent abuse of power. It must, of course, be understood that when he speaks of the legislature he means Parliament, and when he speaks of the executive he means the king; at least this is what he means emotionally, whatever he may logically intend to mean. Accordingly he thinks of the legislature as virtuous, while the executive is usually wicked.
The legislative, he says, must be supreme, except that it must be removable by the community. It is implied that, like the English House of Commons, the legislative is to be elected from time to time by popular vote. The condition that the legislative is to be removable by the people, if taken seriously, condemns the part allowed by the British Constitution in Locke's day to King and Lords as part of the legislative power.
In all well-framed governments, Locke says, the legislative and executive are separate. The question therefore arises: what is to be done when they conflict? If the executive fails to summon the legislative at the proper times, we are told, the executive is at war with the people, and may be removed by force. This is obviously a view suggested by what happened under Charles I. From 1628 to 1640 he tried to govern without Parliament; this sort of thing, Locke feels, must be prevented, by civil war if necessary.
'Force,' he says, 'is to be opposed to nothing but unjust and unlawful force.' This principle is useless in practice unless there exists some body with the legal right to pronounce when force is 'unjust and unlawful'. Charles I's attempt to collect ship-money without the consent of Parliament was declared by his opponents to be 'unjust and unlawful', and by him to be just and lawful. Only the military issue of the Civil War proved that his interpretation of the Constitution was the wrong one. The same thing happened in the American Civil War. Had States the right to secede? No one knew, and only the victory of the North decided the legal question. The belief, which one finds in Locke and in most writers of his time, that any honest man can know what is just and lawful, is one that does not allow for the strength of party bias on both sides, or for the difficulty of establishing a tribunal, whether outwardly or in men's consciences, that shall be capable of pronouncing authoritatively on vexed questions. In practice, such questions, if sufficiently important, are decided simply by power, not by justice and law.
To some degree, though in veiled language, Locke recognizes this fact. In a dispute between legislative and executive, he says there is, in certain cases, no judge under Heaven. Since Heaven does not make explicit pronouncements, this means, in effect, that a decision can only be reached by fighting, since it is assumed that Heaven will give the victory to the better cause. Some such view is essential to any doctrine that divides governmental power. Where such a doctrine is embodied in the Constitution, the only way to avoid occasional civil war is to practise compromise and common sense. But compromise and common sense are habits of mind, and cannot be embodied in a written constitution.
It is surprising that Locke says nothing about the judiciary, although this was a burning question in his day. Until the Revolution, judges could at any moment be dismissed by the king; consequently they condemned his enemies and acquitted his friends. After the Revolution, they were made irremovable except by an Address from both Houses of Parliament. It was thought that this would cause their decisions to be guided by the law; in fact, in cases involving party spirit, it has merely substituted the judge's prejudice for the king's. However that may be, wherever the principle of checks and balances prevailed the judiciary became a third independent branch of government alongside of the legislative and executive. The most noteworthy example is the United States' Supreme Court.
The history of the doctrine of checks and balances has been interesting.
In England, the country of its origin, it was intended to limit the power of the king, who, until the Revolution, had complete control of the executive. Gradually, however, the executive became dependent upon Parliament, since it was impossible for a ministry to carry on without a majority in the House of Commons. The executive thus became, in effect, a committee chosen in fact, though not in form, by Parliament, with the result that legislative and executive powers became gradually less and less separate. During the last fifty years or so, a further development took place, owing to the Prime Minister's power of dissolution and to the increasing strictness of party discipline. The majority in Parliament now decides which party shall be in power, but, having decided that, it cannot in practice decide anything else. Proposed legislation is hardly ever enacted unless introduced by government. Thus the government is both legislative and executive, and its power is only limited by the need of occasional general elections. This system is, of course, totally contrary to Locke's principles.
In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution, but was swept into temporary oblivion by the victory of the Jacobins. Napoleon naturally had no use for it, but it was revived at the Restoration, to disappear again with the rise of Napoleon III. It was again revived in 1871, and led to the adoption of a constitution in which the President had very little power and the government could not dissolve the Chambers. The result was to give great power to the Chamber of Deputies, both as against the government and as against the electorate. There was more division of powers than in modern England, but less than there should be on Locke's principles, since the legislature overshadowed the executive. What the French Constitution will be after the present war it is impossible to foresee.
The country where Locke's principle of the division of powers has found its fullest application is the United States, where the President and Congress are wholly independent of each other, and the Supreme Court is independent of both. Inadvertently, the Constitution made the Supreme Court a branch of the legislature, since nothing is a law if the Supreme Court says it is not. The fact that its powers are nominally only interpretative in reality increases those powers, since it makes it difficult to criticize what are supposed to be purely legal decisions. It says a very great deal for the political sagacity of Americans that this Constitution has only once led to armed conflict.
Locke's political philosophy was, on the whole, adequate and useful until the industrial revolution. Since then, it has been increasingly unable to tackle the important problems. The power of property, as embodied in vast corporations, grew beyond anything imagined by Locke. The necessary functions of the State—for example, in education—increased enormously. Nationalism brought about an alliance, sometimes an amalgamation, of economic and political power, making war the principal means of competition. The single separate citizen has no longer the power and independence that he had in Locke's speculations. Our age is one of organization, and its conflicts are between organizations, not between separate individuals. The state of nature, as Locke says, still exists as between States. A new international Social Contract is necessary before we can enjoy the promised benefits of government. When once an international government has been created, much of Locke's political philosophy will again become applicable, though not the part of it that deals with private property.