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Punishment is not right because useful, but because, by transgressing the law of nature, 'the offender declares himself to live by another rule than that of reason and common equity.' Why may I kill a thief who wants only to take my money? Because he has put himself into a state of war with me.' 2 In such cases the legal fiction leads us by a roundabout path to the same conclusion as the argument from expediency; but elsewhere the perplexity becomes more intricate. Locke's teaching about slavery, for example, is curiously uncertain for so determined an advocate of human rights. In the Constitutions of Carolina, drawn by him in 1669, though they, perhaps, do not represent his opinions in all respects, the freemen are invested with absolute authority over their negro slaves. In his theoretical discussions he adopts the doctrine that a man cannot make himself a slave, because he cannot give away that which he does not possess namely, the power over his own life; but adds that slavery may be justified as the continuance of a state of war between a lawful conqueror and a captive. Here, it is evident that Locke, unable to see through the old metaphysical argument, has entirely abandoned the utilitarian test, and forgets the noblest part of his own theory. The justification of slavery jars strangely with a confutation of claims to arbitrary power. A more elaborate specimen of the same perplexity occurs in the chapter devoted to the origin of government by conquest. A rightful conqueror, he thinks, has power over the lives of the conquered, but not over their possessions-a doctrine which he expects to startle his readers, not as allowing too much to the conqueror, but as putting him under some restrictions. The conqueror, indeed, has a right to be paid for damages; but he argues ingeniously to show that they can seldom or never amount to the fee simple of the land.5 And he concludes that, at any rate, the descendants of the conquered must be freed from all liability, as every man is born free, and with a right to inherit his father's goods. The social contract is indispensable as a ground for the commonest rights. When it is broken by a state of war,

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merely a quasi-legal process for the recovery of damages. He can only try, however, to limit it as much as possible, when it leads to results shocking to his sense of justice.

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12. It is strange to see a man of such vast intellectual vigour, and, above all, with so firm a grasp of facts, allowing himself to be trammelled with this vexatious figment. It worries him and perplexes all his reasoning. It has to be alternately stretched and narrowed, and involves the most inconvenient hypotheses. And yet it evidently presented itself to him as the only alternative to a theory of arbitrary power. He is troubled for a time by the obvious suggestion that no such compact was ever made in an historical sense. Locke tries to support himself, as Sidney does with a much greater show of historical knowledge, by referring to special cases, such as Rome and Venice,' and to certain persons mentioned by Justin, who' went away from Sparta with Palantus;" but he admits that, historically speaking, government probably arose from the paternal power, though, in all cases, it implied a trust for the good of the governed. But not only was the contract never made, but it would not, by Locke's own showing, have been binding if it had been made. The obligation could not be inherited. He maintains that every man has an indefeasible right to choose his own sovereign. By the practice of governments themselves, he argues, ‘as well as by the law of right reason, a child is born a subject of no country or government.'4 Here we seem to be led straight to anarchy. If no man can be lawfully governed, except by his own individual consent, all government is a mere rope of sand. The bond, therefore, has to be patched up again by the familiar expedient of a tacit consent. A man who has expressly consented to the rule of any commonwealth 'is perpetually and indefeasibly obliged to be and remain unalterably a subject of it.' But a tacit consent is given by every owner of property; for so long as a man enjoys the protection of the laws which defend his property, he tacitly consents to be a subject of the commonwealth which imposes the laws. He may, indeed, at any time sell his property, and join any other commonwealth, or set up a commonwealth in the desert. The allegiance

Treatise ii. sec. 102.
Ib. sec. 103.

3 Ib. sec. 110.

Ib. sec. 118.

5 Ib. sec. 121.

which in the first case is unalterable becomes in the second analogous to membership of a joint-stock company.

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13. The doctrine is worked out in an elaborate form in one of his most ingenious chapters. In discussing the origin of property we come to the ultimate form of this Protean compact, which seems so strangely to alternate between reality and fiction. Property, according to Locke, exists antecedently to the formation of civil society, which was devised chiefly with a view to its protection. It has a character independent of any human conventions, and, therefore, supplies a base from which they may be inferred. Man has a right to monopolise part of the earth, which has been bestowed upon the race by God, because man has a right to his own labour, and, therefore, to anything he hath mixed his labour with.' The savage acquires a right to an acorn by the simple act of picking it up. In cultivated countries the chief value of land is that which has been added to it by labour; and a man has a right to so much as he can cultivate. He has 'annexed to it something' which was exclusively his own property; and in this way 'right and conveniency went together, for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of.' 3 As before absolute rights seemed to involve anarchy, so here they seem to involve communism; and here again we escape by means of a tacit compact. Money is in this case the outward sign of the agreement. The use of money enables people to hold more land than they can cultivate by enabling them to exchange the surplus products; and as money is not perishable, a man may keep as much as he pleases without injuring society by useless waste. The expedient is in some sense arbitrary, as money has but a 'fantastical imaginary value ; and as it has been adopted by 'a tacit and voluntary consent,' that right implies a right to the necessary consequences of the expedient—namely, the inequality of possession. Thus the use of money enables us to escape from universal equality which would seem to be the teaching of the law of nature. The tacit consent to the division of property becomes the main element, if not the whole substance, of the original con

Treatise ii. sec. 27.

2 Ib. sec. 32.

3 Ib. sec. 51.
Ib. sec. 184.

tract. Government, he says in one place, has no other end but the preservation of property.' Elsewhere this is the great and chief end of men's entering into commonwealths.' 2 The theory, though it runs through the Treatise, is mixed with discordant elements; but the nearest approach to a definite statement of Locke's ultimate conclusions seems to be that this mysterious compact, which is the binding force of the whole social order, is in fact the tacit consent of mankind to the inequality of property, as implied in the use of money, and made necessary by the corruption which followed the golden age.

14. Only in this perplexed manner could the sturdy sense of Locke manage to utter its protest against tyranny. Nothing, one might think, would be easier than to cut away all the factitious bonds which so trammel the strong man. The utility, whatever it may be, which Locke represents as the consideration contemplated in this strange bargain, made nowhere in particular, and which he only avoids calling 'non-existent' by the simple expedient of using the word 'tacit,' is always, as far as it goes, a valid argument for justifying existing arrangements. On the whole, Locke would have said the acceptance of the complex inequalities of the social order is a necessary condition for avoiding the worse evils of barbarism. But the plain reason seemed to him insufficient till it was twisted into the shape of a bargain. That formula seemed to give a binding force wanting in the naked statement of utility. By Locke's contemporaries the assertion that government rested in some sense on compact or consent was valued for itself, though they cared little for the refinements by which the unreal hypothesis was accommodated to the facts. They were parting company for ever with the divine right of kings. Filmer's theories were read by the light of James II.'s practical expositions, and the king's blundering tyranny crushed them more effectually than the philosopher's logic. Political speculators blundered strangely in trying to frame a theoretical formula for this practical revolt against injustice. The social contract was an importation into the sphere of speculation of the ordinary system of legal fictions. As old laws were bent and twisted into pure

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non-meaning before they were finally cast aside, men clung to this last relic of the obsolete methods before they could resolve to trust wholly to experience. Any analogy would serve which deprived kings of arbitrary power. Regarded as managers of a joint-stock company, or as the tacitly appointed guardians of property, they were at least confined by the terms of their trust within some definite limits.

15. The theory, complex and unsatisfactory as it became when severely scrutinised, gave a temporary resting-place. And thus we naturally find in Locke's ingenious hypothesis curious points of contact, both with the theories from which he borrowed and those which were raised upon his foundation. He continually invokes the authority of Hooker, who had found the compact convenient under somewhat analogous circumstances. The Whigs, in their turn, appealed to Locke as the great supporter of their favourite dogma. At times it takes forms which remind us of his special interpretation. The connection, for example, upon which Locke insists between property in land and the supposed compact appears in a popular shape in various writings, as in De Foe's treatise 'On the Original Power of the People of England.' De Foe argues that the freeholders have a natural right to govern the country, inasmuch as all its other inhabitants live 'upon sufferance;' and, if the king were sole landlord, he would be naturally absolute. The revolutionary party found their account in the doctrine as expanded for a very different purpose by Rousseau; and they could quote from Locke very sweeping assertions as to the natural equality and liberty of mankind. The utilitarians again might appeal to him as frequently sanctioning their method. Though he scarcely touches upon constitutional details, some of his incidental arguments, and the importance which he attaches to the separation of the legislative from the 'executive and federative' powers, may remind us of Montesquieu.' He was one of the first writers to attack the anomaly of rotten boroughs, a grievance which, in his opinion, could only be remedied by the direct action of the sovereign. But, without descending into minutiæ, his chief influence was in popularising a convenient formula for enforcing the responsibility

Treatise ii. ch. xii.

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2 Ib. sec. 157.

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