Chapter XXX (3)

74. Natural law is the same as natural power; it is that which the laws of nature, that is the order of the world, give to each individual. Nothing is forbidden by this law, except what no one desires, or what no one can perform. Thus, no one is bound to keep the faith he has plighted any longer than he will, and than he judges it useful to himself; for he has not lost the power of breaking it, and power is right in natural law. But he may easily perceive that the power of one man in a state of nature is limited by that of all the rest, and in effect is reduced to nothing; all men being naturally enemies to each other; while, on the other hand, by uniting their force, and establishing bounds by common consent to the natural powers of each, it becomes really more effective than while it was unlimited. This is the principle of civil government; and now the distinctions of just and unjust, right and wrong, begin to appear.

75. The right of the supreme magistrate is nothing but the collective rights of the citizens; that is, their powers. Neither he nor they in their natural state can do wrong; but after the institution of government, each citizen may do wrong by disobeying the magistrate; that, in fact, being the test of wrong. He has not to inquire whether the commands of the supreme power are just or unjust, pious or impious; that is, as to action, for the state has no jurisdiction over his judgment.

76. Two independent states are naturally enemies, and may make war on each other whenever they please. If they make peace or alliance, it is no longer binding than the cause, that is, hope or fear in the contracting parties, shall endure. All this is founded on the universal law of nature, the desire of preserving ourselves; which, whether men are conscious of it or no, animates all their actions. Spinosa in this, as in his other writings, is more fearless than Hobbes, and though he sometimes may throw a light veil over his abjuration of moral and religious principle, it is frequently placed in a more prominent view than his English precursor in the same system had deemed it secure to advance. Yet so slight is often the connection between theoretical tenets and human practice, that Spinosa bore the character of a virtuous and benevolent man. We do not know, indeed, how far he was placed in circumstances to put his fidelity to the test. In this treatise of politics, especially in the broad assertion that good faith is only to be preserved so long as it is advantageous, he leaves Machiavel and Hobbes at some distance, and may be reckoned the most phlegmatically impudent of the whole school.

77. The contract or fundamental laws, he proceeds, according to which the multitude transfers its right to a king or a senate, may unquestionably be broken, when it is advantageous to the whole to do so. But Spinosa denies to private citizens the right of judging concerning the public good in such a point, reserving, apparently, to the supreme magistrate an ultimate power of breaking the conditions upon which he was chosen. Notwithstanding this dangerous admission, he strongly protests against intrusting absolute power to any one man; and observes, in answer to the common argument of the stability of despotism, as in the instance of the Turkish monarchy, that if barbarism, slavery, and desolation are to be called peace, nothing can be more wretched than peace itself. Nor is this sole power of one man a thing so possible as we imagine; the kings who seem most despotic trusting the public safety and their own to counsellors and favourites, often the worst and weakest in the state.

|His theory of a monarchy.|

78. He next proceeds to his scheme of a well regulated monarchy, which is in some measure original and ingenious. The people are to be divided into families, by which he seems to mean something like the φρατριαι [phratriai] of Attica. From each of these, counsellors, fifty years of age, are to be chosen by the king, succeeding in a rotation quinquennial, or less, so as to form a numerous senate. This assembly is to be consulted upon all public affairs, and the king is to be guided by its unanimous opinion. In case, however, of disagreement, the different propositions being laid before the king, he may choose that of the minority, provided at least one hundred counsellors have recommended it. The less remarkable provisions of this ideal polity it would be waste of time to mention; except that he advises that all the citizens should be armed as a militia, and that the principal towns should be fortified, and, consequently, as it seems, in their power. A monarchy thus constituted would probably not degenerate into the despotic form. Spinosa appeals to the ancient government of Aragon, as a proof of the possibility of carrying his theory into execution.

79. From this imaginary monarchy he comes to an aristocratical republic. In this he seems to have taken Venice, the idol of theoretical politicians, as his primary model, but with such deviations as affect the whole scheme of government. He objects to the supremacy of an elective doge, justly observing that the precautions adopted in the election of that magistrate show the danger of the office itself, which was rather retained in the aristocratical polity as an ancient institution than from any persuasion of its usefulness. But the most remarkable discrepancy between the aristocracy of Spinosa and that of Venice is that his great council, which ought, as he strongly urges, not to consist of less than 5,000, the greatness of its number being the only safeguard against the close oligarchy of a few families, is not to be hereditary, but its vacancies to be filled up by self-election. In this election, indeed, he considers the essence of aristocracy to consist, being, as is implied in its meaning, a government by the best, who can only be pronounced such by the choice of many. It is singular that he never adverts to popular representation, of which he must have known examples. Democracy, on the contrary, he defines to be a government where political power falls to men by chance of birth, or by some means which has rendered them citizens, and who can claim it as their right without regard to the choice of others. And a democracy, according to Spinosa, may exist, if the law should limit this privilege of power to the seniors in age, or to the elder branches of families, or to those who pay a certain amount in taxation; although the numbers enjoying it should be a smaller portion of the community than in an aristocracy of the form he has recommended. His treatise breaks off near the beginning of the chapters intended to delineate the best model of democracy, which he declares to be one wherein all persons, in their own power, and not infamous by crime, should have a share in the public government. I do not know that it can be inferred from the writings of Spinosa, nor is his authority, perhaps, sufficient to render the question of any interest, to which of the three plans devised by him, as the best in their respective forms, he would have ascribed the preference.

|Amelot de la Houssaye.|

80. The condition of France under Louis XIV. was not very tempting to speculators on political theory. Whatever short remarks may be found in those excellent writers on other subjects who distinguish this period, we can select no one book that falls readily into this class. For Telemaque we must find another place. It is scarcely worth while to mention the political discourses on Tacitus, by Amelot de la Houssaye. These are a tedious and pedantic running commentary on Tacitus, affecting to deduce general principles, but much unlike the short and poignant observations of Machiavel and Bacon. A whole volume on the reign alone of Tiberius, and printed at Paris, is not likely to repay a reader’s trouble; at least, I have found nothing in it above the common level. I have no acquaintance with the other political writings of Amelot de la Houssaye, one of those who thought they could make great discoveries by analysing the constitution of Venice and other states.

|Harrington’s Oceana.|

81. England, thrown at the commencement of this period upon the resources of her own invention to replace an ancient monarchy by something new, and rich at that time in reflecting as well as learned men, with an unshackled press, and a growing disdain of authority as opposed to argument, was the natural soil of political theory. The earliest fruit was Sir James Harrington’s Oceana, published in 1656. This once famous book is a political allegory, partly suggested, perhaps, by the Dodona’s Grove of Howell, or by Barclay’s Argenis, and a few other fictions of the preceding age. His Oceana represents England, the history of which is shadowed out with fictitious names. But this is preliminary to the great object, the scheme of a new commonwealth, which, under the auspices of Olphaus Megaletor, the lord Archon, meaning, of course, Cromwell, not as he was, but as he ought to have been, the author feigns to have been established. The various laws and constitutions of this polity occupy the whole work.

82. The leading principle of Harrington is that power depends on property; denying the common saying, that knowledge or prudence is power. But this property must be in land, “because, as to property producing empire, it is required that it should have some certain root or foot-hold, which, except in land, it cannot have, being otherwise, as it were, upon the wing. Nevertheless, in such cities as subsist mostly by trade, and have little or no land, as Holland and Genoa, the balance of treasure may be equal to that of land.”[945] The law fixing the balance of lands is called by him agrarian, and without an agrarian law, he holds that no government, whether monarchical, aristocratic, or popular, has any long duration; this is rather paradoxical; but his distribution of lands varies according to the form of the commonwealth. In one best constituted the possession of lands is limited to £2,000 a year; which, of course, in his time, was a much greater estate than at present.

[945] P. 38, edit. 1771.

83. Harrington’s general scheme of a good government is one “established upon an equal agrarian arising into the superstructure, or three orders, the senate debating and proposing, the people resolving, and the magistracy executing by an equal rotation through the suffrage of the people given by the ballot.” His more particular form of polity, devised for his Oceana, it would be tedious to give in detail: the result is a moderate aristocracy; property, though under the control of his agrarian, which prevents its excess, having so great a share in the elections that it must predominate. But it is an aristocracy of what we should call the middle ranks, and might not be unfit for a small state. In general, it may be said of Harrington, that he is prolix, dull, pedantic, yet seldom profound; but sometimes redeems himself by just observations. Like most theoretical politicians of that age he had an excessive admiration for the republic of Venice.[946] His other political writings are in the same spirit as the Oceana, but still less interesting.

[946] “If I be worthy to give advice to a man that would study
politics, let him understand Venice; he that understands Venice
right, shall go nearest to judge, notwithstanding the difference
that is in every policy, right of any government in the world.”
Harrington’s Works, p. 292.

|Patriarcha of Filmer.|

84. The manly republicanism of Harrington, though sometimes visionary and, perhaps, impracticable, shines by comparison with a very opposite theory, which, having been countenanced in the early part of the century by our clergy, revived with additional favour after the Restoration. This was maintained in the Patriarcha of Sir Robert Filmer, written, as it appears, in the reign of Charles I., but not published till 1680, at a time when very high notions of royal prerogative were as well received by one faction as they were indignantly rejected by another. The object, as the author declares, was to prove that the first kings were fathers of families; that it is unnatural for the people to govern or to choose governors; that positive laws do not infringe the natural and fatherly power of kings. He refers the tenet of natural liberty and the popular origin of government to the schoolmen, allowing that all papists and the reformed divines have imbibed it, but denying that it is found in the fathers. He seems, indeed, to claim the credit of an original hypothesis; those who have vindicated the rights of kings in most points not having thought of this, but with one consent admitted the natural liberty and equality of mankind. It is certain, nevertheless, that the patriarchal theory of government as the basis of actual right was laid down as explicitly as by himself in what is called Bishop Overall’s Convocation Book, at the beginning of the reign of James I. But this book had not been published when Filmer wrote. His arguments are singularly insufficient; he quotes nothing but a few irrelevant texts from Genesis; he seems not to have known at all the strength, whatever it may be, of his own case, and it is hardly possible to find a more trifling and feeble work. It had, however, the advantage of opportunity to be received by a party with approbation.

|Sydney’s Discourses on Government.|

85. Algernon Sydney was the first who devoted his time to a refutation of this patriarchal theory, propounded as it was, not as a plausible hypothesis to explain the origin of civil communities, but as a paramount title, by virtue of which all actual sovereigns, who were not manifest usurpers, were to reign with an unmitigated despotism. Sydney’s Discourses on Government, not published till 1698, are a diffuse reply to Filmer. They contain, indeed, many chapters full of historical learning and judicious reflection; yet the constant anxiety to refute that which needs no refutation renders them a little tedious. Sydney does not condemn a limited monarchy like the English, but his partiality is for a form of republic which would be deemed too aristocratical for our popular theories.

|Locke on Government.|

86. Locke, immediately after the revolution, attacked the Patriarcha with more brevity, and laid down his own celebrated theory of government. The fundamental principle of Filmer is, that paternal authority is naturally absolute. Adam received it from God, exercised it over his own children, and transmitted it to the eldest born for ever. This assumption Locke combats rather too diffusely, according to our notions. Filmer had not only to show this absolute monarchy of a lineal ancestor, but his power of transmitting it in course of primogeniture. Locke denies that there is any natural right of this kind, maintaining the equality of children. The incapacity of Filmer renders his discomfiture not difficult. Locke, as will be seen, acknowledges a certain _de facto_ authority in fathers of families, and, possibly, he might have found, as, indeed, he seems to admit, considerable traces of a regard to primogeniture in the early ages of the world. It is the question of natural right with which he is here concerned; and, as no proof of this had been offered, he had nothing to answer.

87. In the second part of Locke’s Treatise on Civil Government, he proceeds to lay down what he holds to be the true principles upon which society is founded. A state of nature is a state of perfect freedom and equality; but within the bounds of the law of nature, which obliges every one, and renders a state of liberty no state of licence. And the execution of this law, in such a state, is put into everyone’s hands, so that he may punish transgressors against it, not merely by way of reparation for his own wrongs, but for those of others. “Every offence that can be committed in the state of nature may, in the state of nature, be punished equally, and as far forth, as it may in a commonwealth.” And not only independent communities, but all men, as he thinks, till they voluntarily enter into some society, are in a state of nature.[947]

[947] L. ii., c. 2.

88. Whoever declares by word or action a settled design against another’s life, puts himself in a state of war against him, and exposes his own life to be taken away, either by the other party, or by anyone who shall espouse his cause. And he who endeavours to obtain absolute power over another, may be construed to have a design on his life, or at least to take away his property. Where laws prevail, they must determine the punishment of those who injure others; but if the law is silenced, it is hard to think but that the appeal to Heaven returns, and the aggressor may be treated as one in a state of war.[948]

[948] C. 3.

89. Natural liberty is freedom from any superior power except the law of nature. Civil liberty is freedom from the dominion of any authority except that which a legislature, established by consent of the commonwealth, shall confirm. No man, according to Locke, can by his own consent enslave himself, or give power to another to take away his life. For slavery, in a strict sense, is but a continuance of the state of war between a conqueror and his captive.[949]

[949] C. 4.

90. The excellent chapter on property which follows would be sufficient, if all Locke’s other writings had perished, to leave him a high name in philosophy. Nothing can be more luminous than his deduction of the natural right of property from labour, not merely in gathering the fruits of the earth, or catching wild animals, but in the cultivation of land, for which occupancy is but the preliminary, and gives as it were an inchoate title. “As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common.” Whatever is beyond the scanty limits of individual or family labour, has been appropriated under the authority of civil society. But labour is the primary basis of natural right. Nor can it be thought unreasonable that labour should confer an exclusive right, when it is remembered how much of everything’s value depends upon labour alone. “Whatever bread is more worth than acorns, wine than water, and cloth or silk than leaves, skins, or moss, that is wholly owing to labour and industry.” The superiority in good sense and satisfactory elucidation of his principle, which Locke has manifested in this important chapter over Grotius and Puffendorf, will strike those who consult those writers, or look at the brief sketch of their theories in the foregoing pages. It is no less contrasted with the puerile rant of Rousseau against all territorial property. That property owes its origin to occupancy accompanied with labour, is now generally admitted; the care of cattle being of course to be considered as one species of labour, and requiring at least a temporary ownership of the soil.[950]

[950] C. 5.

91. Locke, after acutely remarking that the common arguments for the power of a father over his children would extend equally to the mother, so that it should be called parental power, reverts to the train of reasoning in the first book of this treatise against the regal authority of fathers. What they possess is not derived from generation, but from the care they necessarily take of the infant child, and during his minority; the power then terminates, though reverence, support, and even compliance are still due. Children are also held in subordination to their parents by the institutions of property, which commonly make them dependent both as to maintenance and succession. But Locke, which is worthy to be remarked, inclines to derive the origin of civil government from the patriarchal authority; one not strictly coercive, yet voluntarily conceded by habit and family consent. “Thus the natural fathers of families, by an insensible change, became the politic monarchs of them too; and as they chanced to live long, and leave worthy and able heirs for several successions or otherwise, so they laid the foundations of hereditary or elective kingdoms.”[951]

[951] C. 6.

92. The necessity that man should not live alone, produced the primary society of husband and wife, parent and children, to which that of master and servant was early added; whether of freemen engaging their service for hire, or of slaves taken in just war, who are by the right of nature subject to the absolute dominion of the captor. Such a family may sometimes resemble a little commonwealth by its numbers, but is essentially distinct from one, because its chief has no imperial power of life and death except over his slaves, nature having given him none over his children, though all men have a right to punish breaches of the law of nature in others according to the offence. But this natural power they quit and resign into the hands of the community, when civil society is instituted; and it is in this union of the several rights of its members that the legislative right of the commonwealth consists, whether this be done by general consent at the first formation of government, or by the adhesion which any individual may give to one already established. By either of these ways men pass from a state of nature to one of political society, the magistrate having now that power to redress injuries, which had previously been each man’s right. Hence, absolute monarchy, in Locke’s opinion, is no form of civil government; for there being no common authority to appeal to, the sovereign is still in a state of nature with regard to his subjects.[952]

93. A community is formed by the unanimous consent of any body of men; but when thus become one body, the determination of the majority must bind the rest, else it would not be one. Unanimity, after a community is once formed, can no longer be required; but this consent of men to form a civil society is that which alone did or could give beginning to any lawful government in the world. It is idle to object that we have no records of such an event; for few commonwealths preserve the tradition of their own infancy; and whatever we do know of the origin of particular states gives indications of this mode of union. Yet he again inclines to deduce the usual origin of civil societies from imitation of patriarchal authority, which having been recognised by each family in the arbitration of disputes and even punishment of offences, was transferred with more readiness to some one person, as the father and representative head of the infant community. He even admits that this authority might tacitly devolve upon the eldest son. Thus the first governments were monarchies, and those with no express limitations of power, till exposure of its abuse gave occasion to social laws, or to co-ordinate authority. In all this he follows Hooker, from the first book of whose Ecclesiastical Polity he quotes largely in his notes.[953]

[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]

[958] C. 14.

98. Conquest, in an unjust war, can give no right at all, unless robbers and pirates may acquire a right. Nor is anyone bound by promises which unjust force extorts from him. If we are not strong enough to resist, we have no remedy save patience; but our children may appeal to Heaven, and repeat their appeals till they recover their ancestral rights, which was to be governed by such a legislation as themselves approve. He that appeals to Heaven must be sure that he has right on his side, and right too that is worth the trouble and cost of his appeal, as he will answer at a tribunal that cannot be deceived. Even just conquest gives no further right than to reparation of injury; and the posterity of the vanquished, he seems to hold, can forfeit nothing by their parent’s offence, so that they have always a right to throw off the yoke. The title of prescription, which has commonly been admitted to silence the complaints, if not to heal the wounds, of the injured, finds no favour with Locke.[959] And hence, it seems that no state composed, as most have been, out of the spoils of conquest, can exercise a legitimate authority over the latest posterity of those it has incorporated. Wales, for instance, has an eternal right to shake off the yoke of England; for what Locke says of consent to laws by representatives, is of little weight when these must be out-numbered in the general legislature of both countries; and indeed the first question for the Cambro-Britons would be to determine whether they would form part of such a common legislation.

[959] C. 16.

99. Usurpation, which is a kind of domestic conquest, gives no more right to obedience than unjust war; it is necessary that the people should both be at liberty to consent, and have actually consented to allow and confirm a power which the constitution of their commonwealth does not recognise.[960] But tyranny may exist without usurpation, whenever the power reposed in anyone’s hands for the people’s benefit is abused to their impoverishment or slavery. Force may never be opposed but to unjust and unlawful force; in any other case, it is condemned before God and man. The king’s person is in some countries sacred by law; but this, as Locke thinks, does not extend to the case where, by putting himself in a state of war with his people, he dissolves the government.[961] A prince dissolves the government by ruling against law, by hindering the regular assembly of the legislature, by changing the form of election, or by rendering the people subject to a foreign power. He dissolves it also by neglecting or abandoning it, so that the laws cannot be put into execution. The government is also dissolved by breach of trust in either the legislature or the prince; by the former when it usurps an arbitrary power over the lives, liberties, and fortunes of the subject; by the latter, when he endeavours to corrupt the representatives or to influence the choice of the electors. If it be objected that no government will be able long to subsist, if the people may set up a new legislature whenever they take offence at the old one, he replies that mankind are too slow and averse to quit their old institutions for this danger to be apprehended. Much will be endured from rulers without mutiny or murmur. Nor is anything more likely to restrain governments than this doctrine of the right of resistance. It is as reasonable to tell men they should not defend themselves against robbers, because it may occasion disorder, as to use the same argument for passive obedience to illegal dominion. And he observes, after quoting some other writers, that Hooker alone might be enough to satisfy those who rely on him for their ecclesiastical polity.[962]

[960] C. 17.

[961] C. 18.

[962] C. 19.

|Observations on this Treatise.|

100. Such is, in substance, the celebrated treatise of Locke on civil government, which, with the favour of political circumstances, and the authority of his name, became the creed of a numerous party at home; while silently spreading the fibres from its root over Europe and America, it prepared the way for theories of political society, hardly bolder in their announcement, but expressed with more passionate ardour, from which the great revolutions of the last and present age have sprung. But as we do not launch our bark upon a stormy sea, we shall merely observe that neither the Revolution of 1688, nor the administration of William III., could have borne the test by which Locke has tried the legitimacy of government. There was certainly no appeal to the people in the former, nor would it have been convenient for the latter to have had the maxim established, that an attempt to corrupt the legislature entails a forfeiture of the entrusted power. Whether the opinion of Locke, that mankind are slow to political change, be conformable to an enlarged experience, must be judged by everyone according to his reading and observation; it is, at least, very different from that which Hooker, to whom he defers so greatly in most of his doctrine, has uttered in the very first sentence of his Ecclesiastical Polity. For my own part, I must confess, that in these latter chapters of Locke on Government I see, what sometimes appears in his other writings, that the influence of temporary circumstances on a mind a little too susceptible of passion and resentment, had prevented that calm and patient examination of all the bearings of this extensive subject which true philosophy requires.

101. But whatever may be our judgment of this work, it is equally true that it opened a new era of political opinion in Europe. The earlier writings on the side of popular sovereignty, whether those of Buchanan and Languet, of the Jesuits, or of the English republicans, had been either too closely dependent on temporary circumstances, or too much bound up with odious and unsuccessful factions, to sink very deep into the hearts of mankind. Their adversaries, with the countenance of every government on their side, kept possession of the field; and neither jurist, nor theologian, nor philosopher on the Continent, while they generally followed their predecessors in deriving the origin of civil society from compact, ventured to meet the delicate problem of resistance to tyranny, or of the right to reform a constitution, except in the most cautious and indefinite language. We have seen this already in Grotius and Puffendorf. But the success of the English Revolution; the necessity which the powers allied against France found of maintaining the title of William; the peculiar interest of Holland and Hanover, states at that time very strong in the literary world, in our new scheme of government, gave a weight and authority to principles which, without some such application, it might still have been thought seditious to propound. Locke too, long an exile in Holland, was intimate with Le Clerc, who exerted a considerable influence over the protestant part of Europe. Barbeyrac, some time afterwards, trod nearly in the same steps, and without going all the lengths of Locke, did not fail to take a very different tone from the two older writers, upon whom he has commented.

|Avis aux Refugiéz, perhaps by Bayle.

102. It was very natural that the French protestants, among whom traditions of a turn of thinking not the most favourable to kings may have been preserved, should, in the hour of severe persecution, mutiny in words and writings against the despotism that oppressed them. Such, it appears, had been the language of those exiles, as it is of all exiles, when an anonymous tract, entitled Avis aux Refugiéz, was published with the date of Amsterdam in 1690. This, under pretext of giving advice, in the event of their being permitted to return home, that they should get rid of their spirit of satire, and of their republican theories, is a bitter and able attack on those who had taken refuge in Holland. It asserts the principle of passive obedience, extolling also the king of France and his government, and censuring the English Revolution. Public rumour ascribed this to Bayle; it has usually passed for his, and is even inserted in the collection of his miscellaneous works. Some, however, have ascribed it to Pelisson, and others to Larroque; one already, and the other soon after, proselytes to the church of Rome. Basnage thought it written by the latter, and published by Bayle, to whom he ascribed the preface. This is, apparently, in a totally opposite strain, but not without strong suspicion of irony or ill faith. The style and manner throughout appear to suggest Bayle; and though the supposition is very discreditable to his memory, the weight of presumption seems much to incline that way.

|Political economists.|

103. The separation of political economy from the general science, which regards the well-being of communities, was not so strictly made by the earlier philosophers as in modern times. It does not follow that national wealth engaged none of their attention. Few, on the contrary, of those who have taken comprehensive views, could have failed to regard it. In Bodin, Botero, Bacon, Hobbes, Puffendorf, Locke, we have already seen proofs of this. These may be said to have discussed the subject, not systematically, nor always with thorough knowledge, but with acuteness and in a philosophical tone. Others there were of a more limited range, whose habits of life and experience led them to particular departments of economical inquiry, especially as to commerce, the precious metals, and the laws affecting them. The Italians led the way; Serra has been mentioned in our last volume, and a few more might find a place in this. De Witt’s Interest of Holland can hardly be reckoned among economical writings; and it is said by Morhof, that the Dutch were not fond of promulgating their commercial knowledge;[963] little, at least, was contributed from that country, even at a later period, towards the theory of becoming rich. But England now took a large share in this new literature. Free, inquisitive, thriving rapidly in commerce, so that her progress even in the nineteenth century has hardly been in a greater ratio than before, and after the middle of the seventeenth, if we may trust the statements of contemporaries, she produced some writers who, though few of them merit the name of philosophers, may not yet here be overlooked, on account of their influence, their reputation, or their position as links in the chain of science.

[963] Polyhistor, part iii., lib. iii., § 3.

|Mun on Foreign Trade.|

|Child on Trade.|

104. The first of these was Thomas Mun, an intelligent merchant in the earlier part of the century, whose posthumous treatise, England’s Treasure by Foreign Trade, was published in 1664, but seems to have been written soon after the accession of Charles I.[964] Mun is generally reckoned the founder of what has been called the mercantile system. His main position is that “the ordinary means to increase our wealth and treasure is by foreign trade, wherein we must ever observe this rule to sell more to strangers yearly than we consume of theirs in value.”[965] We must therefore sell as cheap as possible; it was by underselling the Venetians of late years, that we had exported a great deal of cloth to Turkey.[966] It is singular that Mun should not have perceived the difficulty of selling very cheap the productions of a country’s labour, whose gold and silver were in great abundance. He was, however, too good a merchant not to acknowledge the inefficacy and impolicy of restraining by law the exportation of coin, which is often a means of increasing our treasure in the long run; advising instead a due regard to the balance of trade, or general surplus of exported goods, by which we shall infallibly obtain a stock of gold and silver. These notions have long since been covered with ridicule; and it is plain that, in a merely economical view, they must always be delusive. Mun, however, looked to the accumulation of a portion of this imported treasure by the state; a resource in critical emergencies which we have now learned to despise, since others have been at hand, but which, in reality, had made a great difference in the events of war, and changed the balance of power between many commonwealths. Mun was followed, about 1670, by Sir Josiah Child, in a discourse on Trade, written on the same principles of the mercantile system, but more copious and varied. The chief aim of Child is to effect a reduction of the legal interest of money, from six to four per cent., drawing an erroneous inference from the increase of wealth which had followed similar enactments.

[964] Mr. Maculloch says (Introductory Discourse to Smith’s
Wealth of Nations), it had most probably been written about 1635
or 1640. I remarked some things which serve to carry it up a
little higher.

[965] P. 11 (edit. 1664).

[966] P. 18.

|Locke on the Coin.|

105. Among the many difficulties with which the government of William III. had to contend, one of the most embarrassing was the scarcity of the precious metals and depreciated condition of the coin. This opened the whole field of controversy in that province of political economy; and the bold spirit of inquiry, unshackled by prejudice in favour of ancient custom, which, in all respects, was characteristic of that age, began to work by reasonings on general theorems, instead of collecting insulated and inconclusive details. Locke stood forward on this, as on so many subjects, with his masculine sense and habitual closeness of thinking. His “Considerations of the Consequences of lowering Interest, and raising the Value of Money” were published in 1691. Two further treatises are in answer to the pamphlets of Lowndes. These economical writings of Locke are not in all points conformable to the modern principles of the science. He seems to incline rather too much towards the mercantile theory, and to lay too much stress on the possession of the precious metals. From his excellent sense, however, as well as from some expressions, I should conceive that he only considers them, as they doubtless are, a portion of the exchangeable wealth of the nation, and by their inconsumable nature, as well as by the constancy of the demand for them, one of the most important. “Riches do not consist,” he says, “in having more gold and silver, but in having more in proportion than the rest of the world or than our neighbours, whereby we are enabled to procure to ourselves a greater plenty of the conveniences of life.”

106. Locke had the sagacity to perceive the impossibility of regulating the interest of money by law. It was an empirical proposition at that time, as we have just seen in Sir Josiah Child, to render loans more easy to the borrower by reducing the legal rate to four per cent. The whole drift of his reasoning is against any limitation, though, from fear of appearing too paradoxical, he does not arrive at that inference. For the reasons he gives in favour of a legal limit of interest, namely, that courts of law may have some rule where nothing is stipulated in the contract, and that a few money-lenders in the metropolis may not have the monopoly of all loans in England, are, especially the first, so trifling, that he could not have relied upon them; and, indeed, he admits that, in other circumstances, there would be no danger from the second. But his prudence having restrained him from speaking out, a famous writer, almost a century afterwards, came forward to assert a paradox, which he loved the better for seeming such, and, finally, to convince the thinking part of mankind.

107. Laws fixing the value of silver Locke perceived to be nugatory, and is averse to prohibit its exportation. The value of money, he maintains, does not depend on the rate of interest, but on its plenty relatively to commodities. Hence, the rate of interest, he thinks, but, perhaps, erroneously, does not govern the price of land; arguing from the higher rate of land relatively to money, that is, the worse interest it gave, in the reigns of Elizabeth and James, than in his own time. But one of Locke’s positions, if generally received, would alone have sufficed to lower the value of land. “It is in vain,” he says, “in a country whose great fund is land, to hope to lay the public charges of the government on anything else; there, at last, it will terminate.” The legislature soon proceeded to act on this mistaken theory in the annual land tax; an impost of tremendous severity at that time, the gross unfairness, however, of which has been compensated in later times by the taxes on personal succession.

108. In such a monetary crisis as that of his time, Locke was naturally obliged to consider the usual resource of raising the denomination of the coin. This, he truly says, would be to rob all creditors of such a proportion of their debts. It is probable that his influence, which was very considerable, may have put a stop to the scheme. He contends in his Further Considerations, in answer to a tract by Lowndes, that clipped money should go only by weight. This seems to have been agreed by both parties; but Lowndes thought the loss should be defrayed by a tax; Locke that it should fall on the holders. Honourably for the government, the former opinion prevailed.

|Statistical tracts.|

109. The Italians were the first who laid anything like a foundation for statistics or political arithmetic; that which is to the political economist what general history is to the philosopher. But their numerical reckonings of population, houses, value of lands or stock, and the like, though very curious, and sometimes taken from public documents, were not always more than conjectural, nor are they so full and minute as the spirit of calculation demands. England here again took the lead, in Graunt’s Observations on the Bills of Mortality, 1661, in Petty’s Political Arithmetic (posthumous in 1691), and other treatises of the same ingenious and philosophical person, and, we may add, in the Observations of Gregory King on the Natural and Political State of England; for, though these were not published till near the end of the eighteenth century, the manuscripts had fallen into the hands of Dr. Charles Davenant, who has made extracts from them in his own valuable contributions to political arithmetic. King seems to have possessed a sagacity which has sometimes brought his conjectures nearer to the mark than, from the imperfection of his data, it was reasonable to expect. Yet he supposes that the population of England, which he estimated, perhaps rightly, at five millions and a half, would not reach the double of that number before A.D. 2300. Sir William Petty, with a mind capable of just and novel theories, was struck by the necessary consequences of an uniformly progressive population. Though the rate of movement seemed to him, as in truth it was, much slower than we have latterly found it, he clearly saw that its continuance would, in an ascertainable length of time, overload the world. “And then, according to the prediction of the Scriptures, there must be wars and great slaughter.” He conceived that, in the ordinary course of things, the population of a country would be doubled in two hundred years; but the whole conditions of the problem were far less understood than at present. Davenant’s Essay on Ways and Means, 1693, gained him a high reputation which he endeavoured to augment by many subsequent works, some falling within the seventeenth century. He was a man of more enlarged reading than his predecessors, with the exception of Petty, and of close attention to the statistical documents which were now more copiously published than before; but he seldom launches into any extensive theory, confining himself rather to the accumulation of facts and to the immediate inferences, generally for temporary purposes, which they supplied.

SECT. III.

ON JURISPRUDENCE.

|Works of Leibnitz on Roman Law.|

110. In 1667, a short book was published at Frankfort, by a young man of twenty-two years, entitled Methodi Novæ discendæ docendæque Jurisprudentiæ. The science which of all had been deemed to require the most protracted labour, the ripest judgment, the most experienced discrimination, was, as it were, invaded by a boy, but by one who had the genius of an Alexander, and for whom the glories of an Alexander were reserved. This is the first production of Leibnitz; and it is probably in many points of view the most remarkable work that has prematurely united erudition and solidity. We admire in it the vast range of learning (for though he could not have read all the books he names, there is evidence of his acquaintance with a great number, and at least with a well-filled chart of literature), the originality of some ideas, the commanding and comprehensive views he embraces, the philosophical spirit, the compressed style in which it is written, the entire absence of juvenility, of ostentatious paradox,[967] of imagination, ardour, and enthusiasm, which, though Leibnitz did not always want them, would have been wholly misplaced on such a subject. Faults have been censured in this early performance, and the author declared himself afterwards dissatisfied with it.[968]

[967] I use the epithet ostentatious, because some of his
original theories are a little paradoxical; thus, he has a
singular notion that the right of bequeathing property by
testament is derived from the immortality of the soul; the living
heirs being as it were the attorneys of those we suppose to be
dead. Quia mortui revera adhuc vivunt, ideo manent domini rerum,
quos vero hæredes reliquerunt, concipiendi sunt ut procuratores
in rem suam. In our own discussions on the law of entail, I am
not aware that this argument has ever been explicitly urged,
though the advocates of perpetual control seem to have none
better.

[968] This tract, and all the other works of Leibnitz on
jurisprudence, will be found in the fourth volume of his works by
Dutens. An analysis by Bon, professor of law at Turin, is
prefixed to the Methodi Novæ, and he has pointed out a few
errors. Leibnitz says in a letter, about 1676, that his book was
effusus potius quam scriptus, in itinere, sine libris, &c., and
that it contained some things he no longer would have said,
though there were others of which he did not repent. Lerminier,
Hist. du Droit, p. 150.

111. Leibnitz was a passionate admirer of the Roman jurisprudence; he held the great lawyers of antiquity second only to the best geometers for strong and subtle and profound reasoning; not even acknowledging, to any considerable degree, the contradictions (antinomiæ juris), which had perplexed their disciples in later times, and on which many volumes had been written. But the arrangement of Justinian he entirely disapproved; and in another work, Corporis Juris reconcinnandi Ratio, published in 1668, he pointed out the necessity and what he deemed the best method of a new distribution. This appears to be not quite like what he had previously sketched, and which was rather a philosophical than a very convenient method;[969] in this new arrangement, he proposes to retain the texts of the Corpus Juris Civilis, but in a form rather like that of the Pandects than of the Institutes; to the latter of which, followed as it has been among us by Hale and Blackstone, he was very averse.

[969] In this Methodi Novæ he divides law, in the didactic part,
according to the several sources of rights--namely, 1. Nature,
which gives us right over res nullius, things where there is no
prior property. 2. Succession. 3. Possession. 4. Contract. 5.
Injury, which gives right to reparation.