Indian Polity Epub
Johanne
TWO TREATISES OF GOVERNMENT. IN THE FORMER THE FALSE PRINCIPLES ANDFOUNDATION OF SIR ROBERT FILMER AND HIS FOLLOWERS ARE DETECTED ANDOVERTHROWN. THE LATTER IS AN ESSAY CONCERNING THE TRUE ORIGINAL EXTENTAND END OF CIVIL GOVERNMENT.
Secondly, That I shall not take railing for arguments, nor think either ofthese worth my notice, though I shall always look on myself as bound to givesatisfaction to any one, who shall appear to be conscientiously scrupulous inthe point, and shall shew any just grounds for his scruples.
(3). That if his heirs had, there being no law of nature nor positivelaw of God that determines which is the right heir in all cases that may arise,the right of succession, and consequently of bearing rule, could not have beencertainly determined:
Sect. 2. To this purpose, I think it may not be amiss, to set down what I taketo be political power; that the power of a MAGISTRATE over a subject may bedistinguished from that of a FATHER over his children, a MASTER over hisservant, a HUSBAND over his wife, and a LORD over his slave. All which distinctpowers happening sometimes together in the same man, if he be considered underthese different relations, it may help us to distinguish these powers one fromwealth, a father of a family, and a captain of a galley.
Sect. 3. POLITICAL POWER, then, I take to be a RIGHT of making laws withpenalties of death, and consequently all less penalties, for the regulating andpreserving of property, and of employing the force of the community, in theexecution of such laws, and in the defence of the commonwealth from foreigninjury; and all this only for the public good.
Sect. 4. TO understand political power right, and derive it from its original,we must consider, what state all men are naturally in, and that is, a state ofperfect freedom to order their actions, and dispose of their possessions andpersons, as they think fit, within the bounds of the law of nature, withoutasking leave, or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal,no one having more than another; there being nothing more evident, than thatcreatures of the same species and rank, promiscuously born to all the sameadvantages of nature, and the use of the same faculties, should also be equalone amongst another without subordination or subjection, unless the lord andmaster of them all should, by any manifest declaration of his will, set oneabove another, and confer on him, by an evident and clear appointment, anundoubted right to dominion and sovereignty.
Sect. 5. This equality of men by nature, the judicious Hooker looks upon as soevident in itself, and beyond all question, that he makes it the foundation ofthat obligation to mutual love amongst men, on which he builds the duties theyowe one another, and from whence he derives the great maxims of justice andcharity. His words are,
Sect. 8. And thus, in the state of nature, one man comes by a power overanother; but yet no absolute or arbitrary power, to use a criminal, when he hasgot him in his hands, according to the passionate heats, or boundlessextravagancy of his own will; but only to retribute to him, so far as calmreason and conscience dictate, what is proportionate to his transgression,which is so much as may serve for reparation and restraint: for these two arethe only reasons, why one man may lawfully do harm to another, which is that wecall punishment. In transgressing the law of nature, the offender declareshimself to live by another rule than that of reason and common equity, which isthat measure God has set to the actions of men, for their mutual security; andso he becomes dangerous to mankind, the tye, which is to secure them frominjury and violence, being slighted and broken by him. Which being a trespassagainst the whole species, and the peace and safety of it, provided for by thelaw of nature, every man upon this score, by the right he hath to preservemankind in general, may restrain, or where it is necessary, destroy thingsnoxious to them, and so may bring such evil on any one, who hath transgressedthat law, as may make him repent the doing of it, and thereby deter him, and byhis example others, from doing the like mischief. And in the case, and uponthis ground, EVERY MAN HATH A RIGHT TO PUNISH THE OFFENDER, AND BE EXECUTIONEROF THE LAW OF NATURE.
Sect. 9. I doubt not but this will seem a very strange doctrine to some men:but before they condemn it, I desire them to resolve me, by what right anyprince or state can put to death, or punish an alien, for any crime he commitsin their country. It is certain their laws, by virtue of any sanction theyreceive from the promulgated will of the legislative, reach not a stranger:they speak not to him, nor, if they did, is he bound to hearken to them. Thelegislative authority, by which they are in force over the subjects of thatcommonwealth, hath no power over him. Those who have the supreme power ofmaking laws in England, France or Holland, are to an Indian, but like the restof the world, men without authority: and therefore, if by the law of natureevery man hath not a power to punish offences against it, as he soberly judgesthe case to require, I see not how the magistrates of any community can punishan alien of another country; since, in reference to him, they can have no morepower than what every man naturally may have over another.
Sect, 10. Besides the crime which consists in violating the law, and varyingfrom the right rule of reason, whereby a man so far becomes degenerate, anddeclares himself to quit the principles of human nature, and to be a noxiouscreature, there is commonly injury done to some person or other, and some otherman receives damage by his transgression: in which case he who hath receivedany damage, has, besides the right of punishment common to him with other men,a particular right to seek reparation from him that has done it: and any otherperson, who finds it just, may also join with him that is injured, and assisthim in recovering from the offender so much as may make satisfaction for theharm he has suffered.
Sect. 12. By the same reason may a man in the state of nature punish the lesserbreaches of that law. It will perhaps be demanded, with death? I answer, eachtransgression may be punished to that degree, and with so much severity, aswill suffice to make it an ill bargain to the offender, give him cause torepent, and terrify others from doing the like. Every offence, that can becommitted in the state of nature, may in the state of nature be also punishedequally, and as far forth as it may, in a commonwealth: for though it would bebesides my present purpose, to enter here into the particulars of the law ofnature, or its measures of punishment; yet, it is certain there is such a law,and that too, as intelligible and plain to a rational creature, and a studierof that law, as the positive laws of commonwealths; nay, possibly plainer; asmuch as reason is easier to be understood, than the fancies and intricatecontrivances of men, following contrary and hidden interests put into words;for so truly are a great part of the municipal laws of countries, which areonly so far right, as they are founded on the law of nature, by which they areto be regulated and interpreted.
Sect. 14. It is often asked as a mighty objection, where are, or ever werethere any men in such a state of nature? To which it may suffice as an answerat present, that since all princes and rulers of independent governments allthrough the world, are in a state of nature, it is plain the world never was,nor ever will be, without numbers of men in that state. I have named allgovernors of independent communities, whether they are, or are not, in leaguewith others: for it is not every compact that puts an end to the state ofnature between men, but only this one of agreeing together mutually to enterinto one community, and make one body politic; other promises, and compacts,men may make one with another, and yet still be in the state of nature. Thepromises and bargains for truck, &c. between the two men in the desertisland, mentioned by Garcilasso de la Vega, in his history of Peru; or betweena Swiss and an Indian, in the woods of America, are binding to them, thoughthey are perfectly in a state of nature, in reference to one another: for truthand keeping of faith belongs to men, as men, and not as members of society.
But I moreover affirm, that all men are naturally in that state, and remain so,till by their own consents they make themselves members of some politicsociety; and I doubt not in the sequel of this discourse, to make it veryclear.
Sect. 17. And hence it is, that he who attempts to get another man into hisabsolute power, does thereby put himself into a state of war with him; it beingto be understood as a declaration of a design upon his life: for I have reasonto conclude, that he who would get me into his power without my consent, woulduse me as he pleased when he had got me there, and destroy me too when he had afancy to it; for no body can desire to have me in his absolute power, unless itbe to compel me by force to that which is against the right of my freedom, i.e.make me a slave. To be free from such force is the only security of mypreservation; and reason bids me look on him, as an enemy to my preservation,who would take away that freedom which is the fence to it; so that he who makesan attempt to enslave me, thereby puts himself into a state of war with me. Hethat, in the state of nature, would take away the freedom that belongs to anyone in that state, must necessarily be supposed to have a design to take awayevery thing else, that freedom being the foundation of all the rest; as hethat, in the state of society, would take away the freedom belonging to thoseof that society or commonwealth, must be supposed to design to take away fromthem every thing else, and so be looked on as in a state of war.
Sect. 18. This makes it lawful for a man to kill a thief, who has not in theleast hurt him, nor declared any design upon his life, any farther than, by theuse of force, so to get him in his power, as to take away his money, or what hepleases, from him; because using force, where he has no right, to get me intohis power, let his pretence be what it will, I have no reason to suppose, thathe, who would take away my liberty, would not, when he had me in his power,take away every thing else. And therefore it is lawful for me to treat him asone who has put himself into a state of war with me, i.e. kill him if I can;for to that hazard does he justly expose himself, whoever introduces a state ofwar, and is aggressor in it.
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