Locke’s Warnings About The Legislature Warring Against The People

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Posted: Apr 04, 2019 10:30 AM
Locke’s Warnings About The Legislature Warring Against The People

Source: AP Photo/J. Scott Applewhite

Nearly 100 years prior to the Declaration of Independence, which obligated the Americans to abolishing any government which exceeds its limits, John Locke defined limited government’s specific purpose. It was then reiterated in the words of the Declaration:  “And so whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion.  And all this is to be directed to no other end, but the peace, safety, and public good of the people.”[1]  Of the people, by the people, for the people.[2]

Locke continues in his chapter, Of the Subordination of the Powers of the Commonwealth, explaining: the meaning of limited government, that government is subordinate to those who instituted it, and those governed by it retain divine sovereignty to eliminate it when it subjugates its purpose.  Locke writes:

[T]here remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.   For all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolved into the hands of those that gave it, who may place it anew where they think best for their safety and security.  And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject….and to rid themselves of those who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society….because this power of the people can never take place till the government be dissolved.[3]

Locke continues by explaining that the people’s sovereignty allows them to use force against the government when it becomes malignant against their safety and maligned against their consent.  Locke writes:

[W]hat if the executive power, being possessed of the force of the commonwealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it?  I say using force upon the people without authority, and contrary to the trust put in him, that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power…from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force.[4]

Locke’s position is the essence of Jefferson’s abolishment clause in the Declaration of Independence.  And Locke discloses in his discussion of the “Dissolution of Government” in full detail of the natural right – or the state of nature – in which people have to dissolve their government upon its usurpation of their natural rights of property and abandonment or seizure of their liberty and freedom.  Next, Locke ties this philosophy directly into the laws passed by the legislature and their obligation to Natural Law and the trust of the people.  The United States has brought itself, in the past 100 years, to the circumstance articulated by Locke.  Locke writes:

First, The legislative acts against the trust reposed in them, when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters or arbitrary disposers of the lives, liberties, or fortunes of the people.

The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion of every part and member of the society…whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence.  Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly, or corruption, endeavour to grasp themselves, or put into the hands of any other an absolute power over lives, liberties, and estates of the people; by this breach of trust they forfeit the power, the people had put into their hands, for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty…What I have said here, concerning the legislative in general, holds true also concerning the supreme executor…when he goes about to set up his own arbitrary will, as the law of society.  He acts also contrary to his trust when he either employs the force, treasure, and offices of the society, to corrupt the representatives and gain them to his purposes…[5]

Noticed above that Locke continually references life, liberty and property, which Jefferson would insert as the foundation in the Declaration of Independence in the form of Life Liberty and the Pursuit of Happiness.  He also stresses the absolute limited nature of government as its requirement and its subservient nature to the people.  Additionally, he defines governments’ behavior as being unlawful when it extracts property from one member of society for the purpose of serving another member of society, in fact acknowledging it to slavery; as well as, an act of war against the people.

Montesquieu reiterates the same philosophy in agreement with Locke when it comes to the government intruding upon the property and sovereignty of the citizens, particularly in the right, under Natural Law, for the citizen to use lethal force to protect those rights when a proper and timely magistrate is not available.

Montesquieu declares:

The life of governments is like that of man.  The latter has a right to kill in case of natural defense: the former have a right to wage war for their own preservation.[6]

In the case of natural defense I have a right to kill, because my life is in respect to me what the life of my antagonist is to him: in the same manner a state wages war because its preservation is like that of any other being.

With individuals the right of natural defense does not imply a necessity of attacking.  Instead of attacking they need only have recourse to proper tribunals.  They cannot therefore exercise this right of defense but in sudden cases, when immediate death would be the consequence of waiting for the assistance of the law.  But with states the right of natural defense carries along with it sometimes the necessity of attacking; as for instance, when one nation sees that a continuance of peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her won destruction. [7]

The principles expounded by Locke, Montesquieu, and Jefferson on property rights as natural rights under Natural Law, and the right of one to use force to protect these natural rights, extend from the principles explained in 1644 by the Scottish theologian Reverend Samuel Rutherford in his great treatise, Lex, Rex.[8]   Reverend Rutherford gives nearly the same explanation as Locke would later in the 17th century on self-defense of property.  Rutherford writes that the “alloweth [of] private defense” is “1. When violence is sudden.  2. And the violence manifestly inevitable.  3. When the magistrate is absent and cannot help.”  Rutherford continues that when the perpetrator “cometh to kill, a man may defend himself, wife, and children…But he is to wound him, and if he die of the wound, the defender is free; so the defender is not intend his death, but to save himself.”[9]

Rutherford’s defense is that the king (or government) suffers under the same burden of justice under God and His laws.   Rutherford’s analysis is scripturally based throughout all his arguments.  Governments (or the king) are no longer valid when they violate this trust and inflict violence.  “But the king, as offering unjust violence to his innocent subjects, is not king.”[10]

[1] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book IX:  Of the Ends of Political Society and Government, Sec. 131,” (Wheeling, IL: Harlan Davidson, Inc.), pp. 77-78.

[2] Abraham Lincoln, November 19, 1863, From The Gettysburg Address.

[3] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book XIII:  Of the Subordination of the Powers of the Commonwealth, Sec. 149,” (Wheeling, IL: Harlan Davidson, Inc.), pp. 92-93.

[4] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book XIII:  Of the Subordination of the Powers of the Commonwealth, Sec. 155,” (Wheeling, IL: Harlan Davidson, Inc.), p. 95.

[5] John Locke, 1982, ed. Richard Cox (originally published in 1690), Second Treatise of Government, “Book XIX:  Of the Dissolution of Government, Sec. 121-122,” (Wheeling, IL: Harlan Davidson, Inc.), pp. 134-135.

[6] Here Montesquieu is referencing the right of a nation-state to wage war to protect its sovereignty; that is, the sovereignty of its people and their right to be joined as a confederacy, from outside forces, such as other nation-states.  For details of Montesquieu’s discussion on this regard see Charles de Montesquieu, 2010 (originally published in 1748), The Spirit of the Laws, “Book IX: Of Laws in the Relation They Bear to a Defensive Force,” (Digireads.com Book), p 120-125.

[7] Charles de Montesquieu, 2010 (originally published in 1748), The Spirit of the Laws, “Book X: Of Laws in the Relationship They Bear to Offensive Force,” (Digireads.com Book), p 125.

[8] Lex is Latin for law or body of laws, and rex is Latin for king.

[9] Rev. Samuel Rutherford, 2014 (originally published in 1644), Lex, Rex: The Just Prerogative of King and People, “Question XXXI: Whether or No Self-Defense Against Any Unjust Violence Offered to the Life, Be Warranted by God’s Law, and the Law of Nature and Nations,” (Lexington, KY; Edinburgh, Scotland: Robert Ogle and Oliver & Boyd), p. 163.

[10] Rev. Samuel Rutherford, 2014 (originally published in 1644), Lex, Rex: The Just Prerogative of King and People, “Question XXXI: Whether or No Self-Defense Against Any Unjust Violence Offered to the Life, Be Warranted by God’s Law, and the Law of Nature and Nations,” (Lexington, KY; Edinburgh, Scotland: Robert Ogle and Oliver & Boyd), p. 164.