Hence a legislature violates the 'trust that is put in it' by society unless it observes the following rules: (1) it is to govern 'by promulgated established laws,' not to be varied to suit particular interests; (2) these laws are to be designed only for the good of the people; (3) it must not raise taxes but by consent of the people through themselves or their deputies; (4) it neither 'must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have' (Civ. Gov. XI. Sect. 142).

59. Thus 'the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislature.' Subject to this ultimate 'sovereignty' (a term which Locke does not use) of the people, the legislative is necessarily the supreme power, to which the executive is subordinate. An appearance to the contrary can only arise in cases where (as in England) the supreme executive power is held by a person who has also a share in the legislative. Such a person may 'in a very tolerable sense be called supreme.' It is not, however, to him as supreme legislator (which he is not, but only a participator in supreme legislation) but to him as supreme executor of the law that oaths of allegiance are taken. It is only as executing the law that he can claim obedience, his executive power being, like the power of the legislative, 'a fiduciary trust placed in him' to enforce obedience to law and that only (Civ. Gov. XIII. Sect. 151). This distinction of the supreme power of the people from that of the supreme executive, corresponding to a distinction between the act of transferring individual powers to a society and the subsequent act by which that society establishes a particular form of government, enables Locke to distinguish what Hobbes had confounded, the dissolution of government and the dissolution of political society.

60. He gets rid of Hobbes' notion, that because the 'covenant of all with all,' by which a sovereignty is established, is irrevocable, therefore the government once established is unalterable. He conceives the original pact merely as an agreement to form a civil society, which must indeed have a government, but not necessarily always the same government. The pact is a transfer by individuals of their natural rights to a society, and can only be cancelled through the dissolution of the society by foreign conquest. The delegation by the society of legislative and executive powers to a person or persons is a different matter. The society always retains the right, according to Locke, of resuming the powers thus delegated, and must exercise the light in the event either of the legislative being altered, (placed in different hands from those originally intended), of a collision between its executive and legislative officers, or of a breach between different branches of the legislature (when as in England there are such different branches), or when legislative and executive or either of them 'act contrary to their trust.' He thus in effect vindicates the right of revolution, ascribing to a 'sovereign people' the attributes which Hobbes assigned to a 'person,' single or corporate, on which the people forming a society were supposed by an irrevocable act to have devolved their powers. In other words, he considered the whole civil society in all cases to have the rights which Hobbes would only have allowed it to possess where the government was not a monarchy or aristocracy but a democracy; i.e. where the supreme 'person' upon which all devolve their several 'personae' is an 'assembly of all who will come together.' As such a democracy did not then exist in Europe, any more than it does now, except in some Swiss cantons, the practical difference between the two views was very great. Both Locke and Hobbes wrote with a present political object in view, Hobbes wishing to condemn the Rebellion, Locke to justify the Revolution. For practical purposes, Locke's doctrine is much the better; but if Hobbes' translation of the irrevocableness of the covenant of all with all into the illegitimacy of resistance to an established government in effect entitles any tyrant [l] to do as he likes, on the other hand, it is impossible upon Locke's theory to pronounce when resistance to a de facto government is legitimate or otherwise. It would be legitimate according to him when it is an act of the 'sovereign people' (not that Locke uses the phrase), superseding a government which has been false to its trust. But this admitted, all sorts of questions arise as to the means of ascertaining what is and what is not an act of the 'sovereign people.'

[1] According to Hobbes, tyranny = 'monarchy misliked'; oligarchy = 'aristocracy misliked.'

61. The rapid success of the revolution without popular disorder prevented Locke's theory from becoming of importance, but in the presence of such sectarian enthusiasm as existed in Hobbes' time it would have become dangerous. It would not any more than that of Hobbes justify resistance to 'the powers that be' on the part of any body of men short of the civil society acting as a whole, i.e. by a majority. The sectaries of the time of the Rebellion, in pleading a natural or divine right to resist the orders of the government, would have been as much condemned by Locke's theory as by that of Hobbes. But who can say when any popular action by which established powers, legislative or executive, are resisted or altered is an act of the 'sovereign people,' of the civil society acting as a whole, or no. Where government is democratic, in Hobbes' sense, i.e. vested in an assembly of all who will come together, the act of the 'sovereign people' is unmistakeable. It is the act of the majority of such an assembly. But in such a case the difficulty cannot arise. There can be no withdrawal by the sovereign people of power from its legislative or executive representatives, since it has no such representatives. In any other case it would seem impossible to say whether any resistance to, or deposition of, an established legislative or executive is the act of the majority of the society or no Any sectary or revolutionary may plead that he has the 'sovereign people' on his side. If he fails, it is not certain that he has them not on his side; for it may be that, though he has the majority of the society on his side, yet the society has allowed the growth within it of a power which prevents it from giving effect to its will. On the other hand, if the revolution succeeds, it is not certain that it had the majority on its side when it began, though the majority may have come to acquiesce in its result. In short, on Locke's principle that any particular government derives its authority from an act of the society, and society by a like act may recall the authority, how can we ever be entitled to say that such an act has been exercised?

62. It is true that there is no greater difficulty about supposing it to be exercised in the dissolution than in the establishment of a government, indeed not so much; but the act of first establishing a government is thrown back into an indefinite past. It may easily be taken for granted without further inquiry into the conditions of its possibility. On the other hand, as the act of legitimately dissolving a government or superseding one by another has to be imagined as taking place in the present, the inquiry into the conditions of its possibility cannot well be avoided. If we have once assumed with Hobbes and Locke, that the authority of government is derived from a covenant of all with all,—either directly or mediately by a subsequent act in which the covenanted society delegates its powers to a representative or representatives,—it will follow that a like act is required to cancel it; and the difficulties of conceiving such an act under the conditions of the present are so great, that Hobbes' view of the irrevocableness of the original act by which any government was established has much to say for itself. If the authority of any government—its claim on our obedience—is held to be derived not from an original covenant, or from any covenant, but from the function which it serves in maintaining those conditions of freedom which are conditions of the moral life, then no act of the people in revocation of a prior act need be reckoned necessary to justify its dissolution. If it ceases to serve this function, it loses its claim on our obedience. It is a παρέκβασις. [1] (Here again the Greek theory, deriving the authority of government not from consent but from the end which it serves, is sounder than the modern.) Whether or no any particular government has on this ground lost its claim and may be rightly resisted, is a question, no doubt, difficult for the individual to answer with certainty. In the long run, however, it seems generally if not always to answer itself. A government no longer serving the function described—which, it must be remembered, is variously served according to circumstances—brings forces into play which are fatal to it. But if it is difficult upon this theory for the individual to ascertain, as a matter of speculation, whether resistance to an established government is justified or no, at any rate upon this theory such a justification of resistance is possible. Upon Locke's theory, the condition necessary to justify it—viz. an act of the whole people governed—is one which, anywhere except in a Swiss canton, it would be impossible to fulfil. For practical purposes, Locke comes to a right result by ignoring this impossibility. Having supposed the reality of one impossible event,—the establishment of government by compact or by the act of a society founded on compact,—he cancels this error in the result by supposing the possibility of another transaction equally impossible, viz, the collective act of a people dissolving its government.

[1] [Greek παρέκβασις (parekbasis) = a government without a proper basis Tr]

63. It is evident from the chapter (XIX.) on the 'dissolution of government' that he did not seriously contemplate the conditions under which such an act could be exercised. What he was really concerned about was to dispute 'the right divine to govern wrong' on the part of a legislative as much as on the part of an executive power; to maintain the principle that government is only justified by being for the good of the people, and to point out the difference between holding that some government is necessarily for the good of the people, and holding that any particular government is for their good, a difference which Hobbes had ignored. In order to do this, starting with the supposition of an actual deed on the part of a community establishing a government, he had to suppose a reserved right on the part of the community by a like deed to dissolve it. But in the only particular case in which he contemplates a loss by the legislature of its representative character, he does not suggest the establishment of another by an act of the whole people. He saw that the English Parliament in his time could not claim to be such as it could be supposed that the covenanting community originally intended it to be. 'It often comes to pass,' he says, 'in governments where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was first established upon…. The bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is to be found, sends 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 everyone 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. And therefore the people, when the legislative is once constituted, having, in such a government as we have been speaking of, no power to act as long as the government stands, this inconvenience is thought incapable of a remedy' (Chapter XIII. Sect. 157). The only remedy which he suggests is not an act of the sovereign people, but an exercise of prerogative on the part of the executive, in the way of redistributing representation, which would be justified by 'salus populi suprema lex.'

E. ROUSSEAU.

64. That 'sovereignty of the people,' which Locke looks upon as held in reserve after its original exercise in the establishment of government, only to be asserted in the event of a legislature proving false to its trust, Rousseau supposes to be in constant exercise. Previous writers had thought of the political society or commonwealth, upon its formation by compact, as instituting a sovereign. They differed chiefly on the point whether the society afterwards had or had not a right of displacing an established sovereign. Rousseau does not think of the society, civitas or commonwealth, as thus instituting a sovereign, but as itself in the act of its formation becoming a sovereign and ever after continuing so.