[952] C. 7.
[953] C. 8.
94. A difficulty commonly raised against the theory of compact is, that all men being born under some government, they cannot be at liberty to erect a new one, or even to make choice whether they will obey or no. This objection Locke does not meet, like Hooker and the jurists, by supposing the agreement of a distant ancestor to oblige all his posterity. But explicitly acknowledging that nothing can bind freemen to obey any government save their own consent, he rests the evidence of a tacit consent, on the enjoyment of land, or even on mere residence within the dominions of the community; every man being at liberty to relinquish his possessions, or change his residence, and either incorporate himself with another commonwealth, or, if he can find an opportunity, set up for himself in some unoccupied part of the world. But nothing can make a man irrevocably a member of one society, except his own voluntary declaration; such perhaps as the oath of allegiance, which Locke does not mention, ought to be reckoned.[954]
[954] C. 8.
95. The majority having, in the first constitution of a state, the whole power, may retain it themselves, or delegate it to one or more persons.[955] And the supreme power is, in other words, the legislature sacred and unalterable in the hands where the community have once placed it, without which no law can exist, and in which all obedience terminates. Yet this legislative authority itself is not absolute or arbitrary over the lives and fortunes of its subjects. It is the joint power of individuals surrendered to the state; but no man has power over his own life or his neighbour’s property. The laws enacted by the legislature must be conformable to the will of God, or natural justice. Nor can it take any part of the subject’s property without his own consent, or that of the majority. “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?” Lastly, the legislative power is inalienable; being but delegated from the people, it cannot be transferred to others.[956] This is the part of Locke’s treatise which has been open to most objection, and which in some measure seems to charge with usurpation all the established governments of Europe. It has been a theory fertile of great revolutions, and perhaps pregnant with more. In some part of this chapter also, though by no means in the most practical corollaries, the language of Hooker has led onward his more hardy disciple.
[955] C. 10.
[956] C. 11.
96. Though the legislative power is alone supreme in the constitution, it is yet subject to the people themselves, who may alter it whenever they find that it acts against the trust reposed in it; all power given in trust for a particular end being evidently forfeited when that end is manifestly disregarded or obstructed. But while the government subsists the legislature is alone sovereign, though it may be the usage to call a single executive magistrate sovereign, if he has also a share in legislation. Where this is not the case, the appellation is plainly improper. Locke has in this chapter a remarkable passage, one perhaps of the first declarations in favour of a change in the electoral system of England. “To what gross absurdities the following of custom, when reason has left it, may lead, we may be satisfied when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheep-cot, or more inhabitants than a shepherd is to be found, send as many representatives to the grand assembly of law-makers as a whole county, numerous in people and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy, though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it.” But Locke is less timid about a remedy, and suggests that the executive magistrate might regulate the number of representatives, not according to old custom but reason, which is not setting up a new legislature, but restoring an old one. “Whatsoever, shall be done manifestly for the good of the people and the establishing the government on its true foundation, is, and always will be, just prerogative;”[957] a maxim of too dangerous latitude for a constitutional monarchy.
[957] C. 13.
97. Prerogative he defines to be “a power of acting according to discretion for the public good without the prescription of the law, and sometimes even against it.” This however is not by any means a good definition in the eyes of a lawyer; and the word, being merely technical, ought not to have been employed in so partial if not so incorrect a sense. Nor is it very precise to say, that in England the prerogative was always largest in the hands of our wisest and best princes, not only because the fact is otherwise, but because he confounds the legal prerogative with its actual exercise. This chapter is the most loosely reasoned of any in the treatise.[958]