Chapter XI
                Of the Extent of the Legislative Power

  134. THE great end of men's entering into society being the
enjoyment of their properties in peace and safety, and the great
instrument and means of that being the laws established in that
society, the first and fundamental positive law of all commonwealths
is the establishing of the legislative power, as the first and
fundamental natural law which is to govern even the legislative.
Itself is the preservation of the society and (as far as will
consist with the public good) of every person in it. This
legislative is not only the supreme power of the commonwealth, but
sacred and unalterable in the hands where the community have once
placed it. Nor can any edict of anybody else, in what form soever
conceived, or by what power soever backed, have the force and
obligation of a law which has not its sanction from that legislative
which the public has chosen and appointed; for without this the law
could not have that which is absolutely necessary to its being a
law, the consent of the society, over whom nobody can have a power
to make laws* but by their own consent and by authority received
from them; and therefore all the obedience, which by the most solemn
ties any one can be obliged to pay, ultimately terminates in this
supreme power, and is directed by those laws which it enacts. Nor
can any oaths to any foreign power whatsoever, or any domestic
subordinate power, discharge any member of the society from his
obedience to the legislative, acting pursuant to their trust, nor
oblige him to any obedience contrary to the laws so enacted or farther
than they do allow, it being ridiculous to imagine one can be tied
ultimately to obey any power in the society which is not the supreme.

  * "The lawful power of making laws to command whole politic
societies of men, belonging so properly unto the same entire
societies, that for any prince or potentate, of what kind soever
upon earth, to exercise the same of himself, and not by express
commission immediately and personally received from God, or else by
authority derived at the first from their consent, upon whose
persons they impose laws, it is no better than mere tyranny. Laws they
are not, therefore, which public approbation hath not made so."
Hooker, ibid. 10.
  "Of this point, therefore, we are to note that such men naturally
have no full and perfect power to command whole politic multitudes
of men, therefore utterly without our consent we could in such sort be
at no man's commandment living. And to be commanded, we do consent
when that society, whereof we be a part, hath at any time before
consented, without revoking the same after by the like universal
agreement.
  "Laws therefore human, of what kind soever, are available by
consent." Hooker, Ibid.

  135. Though the legislative, whether placed in one or more,
whether it be always in being or only by intervals, though it be the
supreme power in every commonwealth, yet, first, it is not, nor can
possibly be, absolutely arbitrary over the lives and fortunes of the
people. For it being but the joint power of every member of the
society given up to that person or assembly which is legislator, it
can be no more than those persons had in a state of Nature before they
entered into society, and gave it up to the community. For nobody
can transfer to another more power than he has in himself, and
nobody has an absolute arbitrary power over himself, or over any
other, to destroy his own life, or take away the life or property of
another. A man, as has been proved, cannot subject himself to the
arbitrary power of another; and having, in the state of Nature, no
arbitrary power over the life, liberty, or possession of another,
but only so much as the law of Nature gave him for the preservation of
himself and the rest of mankind, this is all he doth, or can give up
to the commonwealth, and by it to the legislative power, so that the
legislative can have no more than this. Their power in the utmost
bounds of it is limited to the public good of the society.* It is a
power that hath no other end but preservation, and therefore can never
have a right to destroy, enslave, or designedly to impoverish the
subjects; the obligations of the law of Nature cease not in society,
but only in many cases are drawn closer, and have, by human laws,
known penalties annexed to them to enforce their observation. Thus the
law of Nature stands as an eternal rule to all men, legislators as
well as others. The rules that they make for, other men's actions
must, as well as their own and other men's actions, be conformable
to the law of Nature- i.e., to the will of God, of which that is a
declaration, and the fundamental law of Nature being the
preservation of mankind, no human sanction can be good or valid
against it.

  * "Two foundations there are which bear up public societies; the one
a natural inclination whereby all men desire sociable life and
fellowship; the other an order, expressly or secretly agreed upon,
touching the manner of their union in living together. The latter is
that which we call the law of a commonweal, the very soul of a politic
body, the parts whereof are by law animated, held together, and set on
work in such actions as the common good requireth. Laws politic,
ordained for external order and regimen amongst men, are never
framed as they should be, unless presuming the will of man to be
inwardly obstinate, rebellious, and averse from all obedience to the
sacred laws of his nature; in a word, unless presuming man to be in
regard of his depraved mind little better than a wild beast, they do
accordingly provide notwithstanding, so to frame his outward
actions, that they be no hindrance unto the common good, for which
societies are instituted. Unless they do this they are not perfect."
Hooker, Eccl. Pol. i. 10.

  136. Secondly, the legislative or supreme authority cannot assume to
itself a power to rule by extemporary arbitrary decrees, but is
bound to dispense justice and decide the rights of the subject by
promulgated standing laws,* and known authorised judges. For the law
of Nature being unwritten, and so nowhere to be found but in the minds
of men, they who, through passion or interest, shall miscite or
misapply it, cannot so easily be convinced of their mistake where
there is no established judge; and so it serves not as it aught, to
determine the rights and fence the properties of those that live under
it, especially where every one is judge, interpreter, and
executioner of it too, and that in his own case; and he that has right
on his side, having ordinarily but his own single strength, hath not
force enough to defend himself from injuries or punish delinquents. To
avoid these inconveniencies which disorder men's properties in the
state of Nature, men unite into societies that they may have the
united strength of the whole society to secure and defend their
properties, and may have standing rules to bound it by which every one
may know what is his. To this end it is that men give up all their
natural power to the society they enter into, and the community put
the legislative power into such hands as they think fit, with this
trust, that they shall be governed by declared laws, or else their
peace, quiet, and property will still be at the same uncertainty as it
was in the state of Nature.

  * "Human laws are measures in respect of men whose actions they must
direct, howbeit such measures they are as have also their higher rules
to be measured by, which rules are two- the law of God and the law
of Nature; so that laws human must be made according to the general
laws of Nature, and without contradiction to any positive law of
Scripture, otherwise they are ill made." Hooker, Eccl. Pol. iii. 9.
  "To constrain men to anything inconvenient doth seem
unreasonable." Ibid. i. 10.

  137. Absolute arbitrary power, or governing without settled standing
laws, can neither of them consist with the ends of society and
government, which men would not quit the freedom of the state of
Nature for, and tie themselves up under, were it not to preserve their
lives, liberties, and fortunes, and by stated rules of right and
property to secure their peace and quiet. It cannot be supposed that
they should intend, had they a power so to do, to give any one or more
an absolute arbitrary power over their persons and estates, and put
a force into the magistrate's hand to execute his unlimited will
arbitrarily upon them; this were to put themselves into a worse
condition than the state of Nature, wherein they had a liberty to
defend their right against the injuries of others, and were upon equal
terms of force to maintain it, whether invaded by a single man or many
in combination. Whereas by supposing they have given up themselves
to the absolute arbitrary power and will of a legislator, they have
disarmed themselves, and armed him to make a prey of them when he
pleases; he being in a much worse condition that is exposed to the
arbitrary power of one man who has the command of a hundred thousand
than he that is exposed to the arbitrary power of a hundred thousand
single men, nobody being secure, that his will who has such a
command is better than that of other men, though his force be a
hundred thousand times stronger. And, therefore, whatever form the
commonwealth is under, the ruling power ought to govern by declared
and received laws, and not by extemporary dictates and undetermined
resolutions, for then mankind will be in a far worse condition than in
the state of Nature if they shall have armed one or a few men with the
joint power of a multitude, to force them to obey at pleasure the
exorbitant and unlimited decrees of their sudden thoughts, or
unrestrained, and till that moment, unknown wills, without having
any measures set down which may guide and justify their actions. For
all the power the government has, being only for the good of the
society, as it ought not to be arbitrary and at pleasure, so it
ought to be exercised by established and promulgated laws, that both
the people may know their duty, and be safe and secure within the
limits of the law, and the rulers, too, kept within their due
bounds, and not be tempted by the power they have in their hands to
employ it to purposes, and by such measures as they would not have
known, and own not willingly.
  138. Thirdly, the supreme power cannot take from any man any part of
his property without his own consent. For the preservation of property
being the end of government, and that for which men enter into
society, it necessarily supposes and requires that the people should
have property, without which they must be supposed to lose that by
entering into society which was the end for which they entered into
it; too gross an absurdity for any man to own. Men, therefore, in
society having property, they have such a right to the goods, which by
the law of the community are theirs, that nobody hath a right to
take them, or any part of them, from them without their own consent;
without this they have no property at all. For I have truly no
property in that which another can by right take from me when he
pleases against my consent. Hence it is a mistake to think that the
supreme or legislative power of any commonwealth can do what it
will, and dispose of the estates of the subject arbitrarily, or take
any part of them at pleasure. This is not much to be feared in
governments where the legislative consists wholly or in part in
assemblies which are variable, whose members upon the dissolution of
the assembly are subjects under the common laws of their country,
equally with the rest. But in governments where the legislative is
in one lasting assembly, always in being, or in one man as in absolute
monarchies, there is danger still, that they will think themselves
to have a distinct interest from the rest of the community, and so
will be apt to increase their own riches and power by taking what they
think fit from the people. For a man's property is not at all
secure, though there be good and equitable laws to set the bounds of
it between him and his fellow-subjects, if he who commands those
subjects have power to take from any private man what part he
pleases of his property, and use and dispose of it as he thinks good.
  139. But government, into whosesoever hands it is put, being as I
have before shown, entrusted with this condition, and for this end,
that men might have and secure their properties, the prince or senate,
however it may have power to make laws for the regulating of
property between the subjects one amongst another, yet can never
have a power to take to themselves the whole, or any part of the
subjects' property, without their own consent; for this would be in
effect to leave them no property at all. And to let us see that even
absolute power, where it is necessary, is not arbitrary by being
absolute, but is still limited by that reason and confined to those
ends which required it in some cases to be absolute, we need look no
farther than the common practice of martial discipline. For the
preservation of the army, and in it of the whole commonwealth,
requires an absolute obedience to the command of every superior
officer, and it is justly death to disobey or dispute the most
dangerous or unreasonable of them; but yet we see that neither the
sergeant that could command a soldier to march up to the mouth of a
cannon, or stand in a breach where he is almost sure to perish, can
command that soldier to give him one penny of his money; nor the
general that can condemn him to death for deserting his post, or not
obeying the most desperate orders, cannot yet with all his absolute
power of life and death dispose of one farthing of that soldier's
estate, or seize one jot of his goods; whom yet he can command
anything, and hang for the least disobedience. Because such a blind
obedience is necessary to that end for which the commander has his
power- viz., the preservation of the rest, but the disposing of his
goods has nothing to do with it.
  140. It is true governments cannot be supported without great
charge, and it is fit every one who enjoys his share of the protection
should pay out of his estate his proportion for the maintenance of it.
But still it must be with his own consent- i.e., the consent of the
majority, giving it either by themselves or their representatives
chosen by them; 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?
  141. Fourthly. The legislative cannot transfer the power of making
laws to any other hands, for it being but a delegated power from the
people, they who have it cannot pass it over to others. The people
alone can appoint the form of the commonwealth, which is by
constituting the legislative, and appointing in whose hands that shall
be. And when the people have said, "We will submit, and be governed by
laws made by such men, and in such forms," nobody else can say other
men shall make laws for them; nor can they be bound by any laws but
such as are enacted by those whom they have chosen and authorised to
make laws for them.
  142. These are the bounds which the trust that is put in them by the
society and the law of God and Nature have set to the legislative
power of every commonwealth, in all forms of government. First: They
are to govern by promulgated established laws, not to be varied in
particular cases, but to have one rule for rich and poor, for the
favourite at Court, and the countryman at plough. Secondly: These laws
also ought to be designed for no other end ultimately but the good
of the people. Thirdly: They must not raise taxes on the property of
the people without the consent of the people given by themselves or
their deputies. And this properly concerns only such governments where
the legislative is always in being, or at least where the people
have not reserved any part of the legislative to deputies, to be
from time to time chosen by themselves. Fourthly: Legislative
neither must nor can transfer the power of making laws to anybody
else, or place it anywhere but where the people have.