‘An Englishman, a Lover of Liberty, Citizen of the World is desirous of
having the honour to deposit this book in the Library of Christ College
Cambridge’. So runs the self-description given by the anonymous donor of a copy
of the Locke’s Two Treatises of Government in a letter he wrote in 1764
to accompany his gift. What made this copy so special was that on it, in his own meticulous handwriting, the author
had added numerous corrections and emendations. It was on this hand-corrected
copy of the second edition that Peter Laslett drew in editing what has, since
its publication in 1960, become the third and authoritative edition of Locke’s
work.
Locke published
this work anonymously in 1690 in the immediate wake of the great constitutional
upheaval that England
had undergone just two years before. Locke had composed it, however, well
before that date and as a call for just such an upheaval. The first treatise is
given over to a refutation of the now long-moribund doctrine of the divine
right of kings, a doctrine that had been revived in defence of James ll by
Robert Filmer. So devastating was Locke’s critique, that the doctrine has never
recovered from it. In consequence, the first treatise no longer receives
anything like as much critical attention as does the second treatise, whose
subject matter is indicated by its sub-title, ‘An Essay concerning the True
Original, Extent, and End of Civil Government’. As Locke used the term ‘civil’
in this context, he meant ‘political’. Civil government, therefore, contrasts
with both military rule and ecclesiastical government. In this second treatise,
Locke delineates in magisterial tones and a timeless prose the basic
institutional contours and rationale of a free society. In terms of both
subject matter and manner of treatment of that subject matter, Locke’s second
treatise remains of abiding philosophical interest. .
Reader, thou hast
here … a discourse which, I hope… [is] sufficient to establish the Throne of
our Great Restorer, Our present King William; to make good his title, in the
consent of the people, which being the only one of all lawful government, he
has more fully and clearly than any prince in Christendom: and to justify to
the world, the people of England, whose love of their just and natural rights,
with their resolution to preserve them, saved the nation when it was on the brink
of ruin.[i]
Locke repeats the claim that the English are distinguished from
other nations by their strength of love of liberty in the opening sentence of
the first treatise. Locke open the treatise by expressing his astonishment how
a compatriot could have been brought to assert a doctrine that is so at variance
with English national character as that of the divine right of kings. ‘Slavery
is so vile and miserable an estate of man, and so directly opposite to the
generous temper and courage of our nation that ‘tis hardly to be conceived that
an Englishman, much less a gentleman, should plead for it’[ii].
Precisely which of his compatriots Locke would have regarded as
belonging to the English nation is not immediately clear from what he writes.
Locke subsequently makes it very clear, however, that, for him, to by no means
suffices for someone to belong to the English nation that they had been born in
England of English parents and had resided there since birth. ‘[S]ubmitting to
the laws of any country, living quietly and enjoying privileges and protection
under them, makes not a man a member of that society’[iii].
Having been born and bred in England
might render a person eligible to join the English nation. However, no one
automatically becomes a member, even upon inheriting landed property there.
It is plain … by
the practice of governments themselves, as well as by the law of right reason,
that a child is born a subject of no
country or government. He is under his father’s tuition and authority, till
he come to the age of discretion; and then he is a free-man, at liberty of what
government he will put himself under; what body politic he will unite himself
to.[iv]
All residing in a country signifies about a resident is that their
tacit consent to obey its laws. Residency only imposes upon residents the moral
obligation to obey the law of the land in which they reside. To qualify for
membership of a nation, more is needed person than having had parents who are
members or having resided or owning landed property in its territory. ‘Nothing
can make any man so, but his actually entering into it by positive engagement,
and express promise and compact. This is
that … consent which makes any one a member of any commonwealth’[v].
That nation of which Locke considered himself a member, therefore,
comprised only those of denizens of England who, by ‘oaths of allegiance and
fealty’[vi],
had expressly sworn to uphold the constitutional order that its denizens had
established there who had similarly so sworn. Locke supposed there were only
two ways in which such express undertakings could be given. First, the
founding-members of a commonwealth might collectively and simultaneously give
such an undertaking at its inception. Second, each subsequent new member might
give the necessary undertaking individually, upon reaching adulthood and opting
for admission.
According to Locke, the political union or commonwealth to which
members of the English nation belonged had always been fundamentally liberal
character. Having said that, in Locke’s view, the English nation was not one
which atheists[vii] or
Roman Catholics[viii] were
eligible to join. In this respect, those with such religious or irreligious
filiations differed from pagans, Jews, and Muslims whose religious filiations,
in Locke’s view, did not disqualify them membership of the English nation[ix].
Locke considered atheists ineligible to join the English nation since he
considered membership to be gained by swearing an oath of allegiance. As oath,
being a vow to God, meant an atheist could not swear one and hence could not do
what was necessary to join. Roman Catholics clearly could swear oaths, but,
according to Locke, not oaths of allegiance to the English commonwealth. This
was because, in Locke’s view, the ultimate allegiance of Roman Catholics was to
a foreign Prince, the Pope. He writes,
That Church can
have no right to be tolerated by the magistrate, which is constituted upon such
a bottom, that all those who enter into it, do thereby ipso facto, deliver themselves up to the protection and service of
another prince.... [B]y this means the magistrate would give way to the
settling of a foreign jurisdiction in his own country, and suffer his own
people to be listed, as it were, for soldiers against his own government.[x]
Some contemporary Locke scholars, most notably Richard Ashcraft,
consider Locke’s refusal to countenance Roman Catholics as being eligible for
membership of the English nation to be nothing but irrational prejudice[xi]. Whether it was prejudice or a justified
belief, Locke’s view that Roman Catholics made unreliable compatriots was one
widely shared by the Whigs who were responsible for the Glorious Revolution of
1688. They secured the exclusion of Roman Catholics from any active part in
English political life until the Catholic Emancipation Act of 1829. Even to the
present day, the Act of Settlement brought onto the statute book in 1701
precludes any Roman Catholic from being able to ascend to the English throne.
It is not obvious that, in their mistrust of Roman Catholics, Locke
and his fellow Whigs were guilty of some deep irrational prejudice, however
misplaced such an attitude might be today. To understand why Locke and his
fellow Whigs so mistrusted Catholics, it need to be appreciated what England had
just been through politically. As has recently been pointed out concerning England at the
time Locke wrote,
The
[English] nation had learnt by bitter experience that when a Roman Catholic
monarch is upon the throne, religious and civil liberty is lost. This was the
experience under their monarchs until the Reformation, and revisited under Mary
Tudor and the Stuarts, principally because the Roman Church decrees that her
adherents’ first loyalty is to the Roman Church and her Popes not to the land
of which they are a citizen or even a monarch…. The Vatican
is a government like any other, … and a Catholic’s first loyalty is meant to be
to the Vatican…
The Vatican is built upon
two pillars of authority: apostolic Succession (all peoples are the inheritors
of the mantle of Peter) and Temporal Power, upon which the Vatican bases
its claim that the Pope has authority over the kings of the earth…. While some Catholics may rebelliously choose
not to submit to the Pope as to God, there is no denying that this is the
immutable doctrinal position of their church.[xii]
Locke, then, equates the English nation with the membership of a
particular geographically situated political commonwealth that had been created
and was maintained by means of the express consent of its members for the sake
of their common good. As such, Locke needed to refute the view that English
kings ruled by divine right. For such a source of their authority would mean
English kings had always to be obeyed by their subjects irrespective of how
intended their edicts were to serve their good. To suppose, as Robert Filmer
had done, that kings ruled by divine right would, according to Locke, make them
the ultimate legal authority in their realms. Such form of authority would
effectively release kings from the constraint of any laws besides those
recognised by their own consciences. The subjects of a realm governed by such
an absolute monarch would lack secure possession of any rights. Hence, Locke
was concerned to refute the notion of the divine right of kings.
Locke claimed even the hereditary character of the English monarchy
to be ultimately grounded in the consent of the English nation. It had acquired
this character, in Locke’s view, in the distant past by some early generation
of Englishmen having agreed to it as a quick and non-contentious means by which
their next chief magistrate could be identified after each successive incumbent
vacated that office through death or being deposed. Once established by their
agreement, the legitimacy of the hereditary was freely accepted and reconfirmed
by each successive generation of Englishmen upon their joining the nation.
Locke considered the strength of the Englishman’s love of liberty to
have been revealed by how fiercely the English parliamentary classes had
resisted previous attempts by their monarchs to encroach on their traditional
liberties. The deposition of James Stuart in 1688 was merely a less bloody
re-run of a similar fate that had befallen his father, Charles Stuart, half a
century before. On this earlier occasion, not only had parliament deposed a
ruling monarch. It had gone on to try and execute him, following a protracted
bloody civil war. By contrast, in 1688, James had merely been forced to flee to
France
to save his life. By fleeing, James gave Parliament the opportunity to disguise
from the world the fact that he had been deposed. For it enabled it to maintain
the constitutional pretence that he had voluntarily abdicated. It was, however,
the earlier act of parliamentary resistance against a reigning monarch to which
Locke was primarily referring when he claimed the English nation had been
distinguished from others by its love of liberty.
At the time of Charles Stuart’s deposition and execution, the
English parliament stood in urgent need of a moral vindication for what the
action it had carried out against him. There was no shortage of those willing
to supply one. During the civil war, Locke’s father fought on the side of
parliament, so Locke would have had ample opportunity to familiarise himself
with some of these vindications. As Locke himself was subsequently to do, some
vindications appealed in justification of parliament’s action to the historic
love of the English for liberty. Locke would surely have been familiar with two
that did. The first was the defence the House of Commons gave in 1649 of its
decision earlier that same year to bring Charles to the trial that resulted in
his execution. The second was a defence of their actions against Charles
offered two years later by John Milton.
The House of Commons began the 1649 vindication of itself by
claiming it had ‘long contended against tyranny, … and to remove oppression,
arbitrary power, and all opposition to the peace and freedom of the nation’[xiii].
In resisting Charles, it claimed it had been prompted by the very same motives.
It goes on to sate the manifold constitutional offences of which it considered
Charles guilty, before rehearsing and responding to a series of imaginary
objections against its action. The last objection to which it replies alleges
that, in acting as it did, the Commons subverted the time-honoured English
constitution and thereby imperilled the benefits that it conferred upon the
English nation. The Commons states the objection so.
The
courts of justice, and the good old laws and customs of England (the badges of
our freedom, the benefit whereof our ancestors enjoyed long before the [Norman]
Conquest, and spent much of their blood to have confirmed by the Great Charter
of the Liberties [‘Magna Carta’] and the excellent laws which have continued in
all former changes, and, being duly executed, are the most just, free, and
equal of any the laws in the world) will, by the present alteration of
government, be taken away and lost to us and our posterities. [xiv]
The Commons responded by insisting that at all times it had
scrupulously sought to comply with normal and customary constitutional
procedure. Even the republican form of government it had instituted after
Charles’ execution is said to enjoy full and perfect constitutionality. In making this claim, the Commons is at pains
to demonstrate for how long the English constitution had been a liberal one.
The House of Commons declared that it was
very
sensible of the excellency … of the laws of England…; of their great antiquity,
even from before the time of the Norman slavery forced upon us; of the liberty
and property and peace of the subject, so fully preserved by them; and ... of
the clear consistency of them with the present government of a republic ….[xv]
Parliament claims ‘the title “King” …used … for form only, no power
of personal administration or judgement [being] allowed …[one] in the smallest
matter contended for’[xvi].
In concluding its defence, the Commons explained what it expected ‘from all
true-hearted Englishmen’. This was ‘not only … forbearance, but a cheerful
concurrence ... [in] the great work now in hand, in such a way that the name of
God may be honoured, the true protestant religion advanced, and the people of
this land enjoy the blessings of peace, freedom and justice to them and their
posterities’. [xvii]
Two years after Parliament’s declaration of what it expected of all
true-hearted Englishmen, John Milton was more than happy to live up to its
expectations. He did so in his official capacity as Secretary of Foreign
Tongues after having been asked by Parliament to write an exoneration of itself
action in reply to a denial of the legitimacy of its action that been made by
the Dutch humanist academic, Claude Salmasius.
In the course of his lengthy polemical ‘Defence of the People of
England’, Milton responded to a claim of Salmasius’ that the English had sought
legitimacy for their action by claiming to find precedent for it in the example
of the Dutch who had overthrown their Spanish rulers in favour of a republic. Milton denies the English
had need of following any example but that of themselves. Once again,
parliament’s action is defended through appealing to how long England has
enjoyed a liberal constitution. Milton
writes,
[T]he
English think they need not justify their actions by the example of any
foreigners whatever. They have their laws of the land, which they have followed
– laws which … are the best in the world; they have for their imitation the
example of their ancestors, great and gallant men who never gave way to the
unrestrained power of kings, and who put many of them to death when their
government became insupportable. They
were born free; they stand in need of no other nation; they can make unto
themselves what laws they desire. One law in particular they venerate before
the rest, a very ancient one enacted by nature itself, which measures all human
laws, all civil right and government, not according to the lust of kings but,
above all else, according to the safety and welfare of good men.[xviii]
Both of these two vindications of Parliament’s deposition of Charles
Stuart make appeal to England’s
‘Ancient Constitution’. According to this notion, from time immemorial, or, at
least, from well before the Norman Conquest, England had enjoyed a liberal
constitution by which even its kings were bound. This constitution supposedly
conferred a degree of liberty upon the English that all other nations had long
since forfeited, if, indeed, they had ever once enjoyed it. England’s
Ancient Constitution forbade her kings from raising taxes or introducing new
laws without having first gained the consent of witenagots or councils
of the wise. This Anglo-Saxon form of assembly antedated French parliaments and
was considered to be the true source of the English parliament. Edward Coke,
another vociferous seventeenth century champion of Parliament, also made
constant appeal to the notion of England’s Ancient Constitution of
liberty in defending Parliament’s struggle against the early Stuart monarchs.
Coke expounded the notion in his Institutes
of the Laws of England, posthumously published in 1644. Coke’s work was one
with which the Rump Parliament and Milton were familiar when they delivered
their vindications of Parliament’s action in deposing Charles.
From David Hume in the eighteenth century up to such twentieth
century historians as Herbert Butterfield and John Pocock, historians of England have
persistently denied there ever to have been any such Ancient Constitution. Most
contemporary historians take for granted the idea represents a myth rather than
a description of any historic reality. Some contemporary historians, such as
Alan Macfarlane and Michael Wood, are less inclined to dismiss the idea that,
prior to the Norman Conquest, England
possessed a constitution more liberal than that which the Normans imposed and which it took the English
centuries of constitutional struggle to recover[xix].
Locke was fully conversant with the idea of England’s
Ancient Constitution, as he was of the use to which appeal to it had been put
in support of parliamentary opposition to the Stuarts. Locke himself was in no
doubt as to how vitally important it was to the political health of the nation
that its more politically active members be made fully conversant with it. A
year after publication of the Two
Treatises, Locke published a
collection of his letters written to a friend, Edward Clarke, in response to
requests for advice on how to educate his children. These letters reveal how politically
important Locke considered it to be that each successive generation of
Englishmen be made conversant with the details of their country’s political and
constitutional history. In the preface to the collection, Locke explains how
that he had been led to publish the letters from a sense of patriotism combined
with the conviction that ‘the welfare and prosperity of the nation … much
depends [on] [t]he well educating of their children’[xx]. Especially important, in Locke’s view, was it
for children born to the English landed gentry to receive a suitable education.
Since they will eventually come to occupy the same rank as their parents, it
can be presumed that it will be they who will eventually be called upon to
administer the nation and thus to form its kernel. Their likely destination of
having an active public life puts them in need of a sound education. ‘That most to be taken care of is the
gentleman’s calling. For if those of
that rank are by their education once set right, they will quickly bring order
to all the rest.’[xxi]
Locke considered it vitally important to the health of the nation
that any aspirant English gentleman should have made extensive study of its
history and jurisprudence. History, claimed Locke, is ‘the great mistress of
prudence and civil [i.e. political] knowledge and [a subject that] ought to be
the proper study of a gentleman’[xxii].
No less important in his estimate was jurisprudence. In words that today might well bring colour
to the cheeks of even the most scholarly of political scientists, Locke lists
the texts he considers essential reading in this branch of study for any
English gentleman. They include the major political works of Cicero, Pufendorf
and Grotius. Their study, claims Locke, would provide the aspirant English
gentleman with instruction ‘in the natural rights of men, and the origin and
foundations of society, and the duties resulting from thence. This general
part of civil law and history are studies which a gentleman should not
barely touch on, but constantly dwell upon and never have done with…’[xxiii].
In the case of children destined to be join the ranks of the English gentry, it
was not enough for tem to confine their jurisprudential studies to this
abstract body of theory. In addition,
they needed to become acquainted with English common law and constitutional
history. Locke writes,
It would be strange
to suppose an English gentleman should be ignorant of the law of his country. This, whatever station he is in, is so
requisite that from a justice of the peace to a minister of state I know no
place he can well fill without it… [T]
he right way for a gentleman to study our
law, which he does not design for his
calling, is to take a view of out English constitution and government in the
ancient books of the common law and
some more modern writers, who out of them have given an account of this
government. And having got a true idea of that, then to read our history and
with it join in every king’s reign the laws
then made. This will give an insight into the reason of our statutes, and show the true ground upon
which they came to be mad ad what weight they ought to have. [xxiv]
In sum, for Locke, the English nation is comprised of all and only
those native-born Englishmen plus whoever has become subsequently domiciled who
have united together politically by swearing appropriate oaths of allegiance
and loyalty. To be fully part of that nation required Englishmen to become
thoroughly conversant with their constitution, and, by implication, with its
moral basis in natural law, as well as with the history of their nation. How
remote is Locke’s conception of English
nationality from that of those latter-day self-styled liberals for whom
it is an anathema for anyone seeking or destined to join the English nation to
be required to swear an oath of allegiance or to become conversant with English
law and history.
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