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JOHN LOCKE AND THE THEORY OF SOVEREIGNTY
Cambridge Studies in the History and Thcory of Politics EDITORS MAURICE COWLING
Mixed Monarchy and the Right of Resistance in the Politica! Thought of the English Revolution
G. R. ELTON E. KEDOURIE
G. A. POCOCK
WALTER ULLMANN ·l
H . FRANKLIN
CAMBRIDGE UNIVERSITY PRESS C A MB R I D G E LONDON
YO R K
M E LBOU RNE
Published by the Syndics of the Cambridge University Press
CB2 1 RP NW1 2DB 32 East 5 7th Street, New York, NY 1 0022, USA 296 Beaconsfield Parade, Middle Park, Melbourne 3206, Australia The Pitt Building, Trumpington Street, Cambridge Benùey House,
Cambridge University Press First published
Reprinted 1979 First printed in Great Britain by \\hstern Printing Services Ltd, Bristol Reprinted in Great Britain at the University Press, Cambridge
Library of Congress Cataloguing in Publication Data Franklin, Julian H. John Locke and the theory of sovereignty (Cambridge studies in the history an d theory of politics) Bibliography: p. Includes index. r.
2. Monarchy. 3· Locke, 1 632- 1 704. 4- Great Britain - History- Stuarts, 1 603-1 714 I. Title. JC327.F7 19 78 3 2 1 . 8'7 77-8 0833 ISBN O 521 2 1 75 8 X Sovereignty.
r l To the memory of my father, Jerome A. Frat�klin
The background of the problem
The Parliamentary publicists
Locke and the Whigs
�t l i \
On the dating of Lawson's theoretical insight into dissolution
Locke and Burnet
! : i
M y purpose in this study i s to describe and explain a funda mental transformation in the theory of sovereignty which entered the modern tradition via Locke. In the standard constitutionalist theory of the late sixteenth and early seven teenth centuries, the ultimate right of a people to depose a king for tyranny and to alter the powers of his offìce was normally equated with the rights of constituted bodies established as the people's representative. In this form, the principle of popular sovereignty was incompatible with the partial independencc of the king in the normal workings of a mixed or ]imited monarchy. At the beginning of the English civ il wars, in I 642, the attempts of Parliamentary theorists to combine rccognition of the king's independence with a right of resistance in the Parliament led to manifold and deep confusion. The resolution of these diffìculties was thc work of George Lawson, a politica! moderate writing in thc Iatcr I nterregnum. In Lawson's view the legai consequences, in 1 642, of the con flict between king and Parliament, was an cntire dissolution of the government and reversion of powcr to the people, which was alone entitled to constitute a new authority. Ultimate sovereignty - in the sense of constituent authority - was thus denied to Parliament and ascribed to thc genera] community as a legai entity distinct from Parliament. In his Politica sacra et civilis, Lawson reworked the entire theory of sovereignty in tbe light of this conception. This work, in my opinion, is among the deepest treatments of this subject in his century. Lawson's theory was to be neglected in the I 68os, in large part because its implications seemed too radical. But his idea of lX
s dissolution was taken up by Locke, whose adheren�e to IKW conception provides us with a deeper unders�andmg of h1s i ntellcctual and political intentions as well as h1� statur� as a politica! theorist. Although the theory of �issolutwn, _as 1t was _ presented in the Second Treatzse, was dehberately reJected b_r almost all his Whig contemporaries, Locke held fast to his position. He had found, and knew that he ad fou�d, the �nly adequate solution to the problem of_ res1stance m a m1xed constitution. It was, indeed, a solutwn to the problem of sovereignty in any constitution whatsoe:er, as well as a formula for the change of institutions by an mdependent act of the community. And it was perhaps far these reasons, m?re than any other, that the Second Treatise was belatedly recelVed as a classic of modern constitutionalism.
Preface All translations are my own unless otherwise indicated. The titles of seventeenth-century works have often been shortened. I have also modernized orthography and punctuation wherever I thought the originai form might be distracting to the reader. The one exception is Locke's Two Treatises. Here I have strictly followed Laslett's text, which has now become standard and familiar. Far speeches and statements in Parliament I bave regularly cited Cobbett's Parliamentary History of England which, for most readers, will be the most convenient and readily available source. But for many citations I have included alternative references in parentheses.
A brief summary of the generai theme of this book was pre sented to the Iowa Humanities Society in 1 9 7 5· Parts of chapter 3 were included in a paper delivered at th� 1976 . Convention of the American Political Science AssoClatwn and the Columbia University Seminar far the Study of olitical and Social Thought. These opportunities to gauge reactwns �d
receive suggestions were much appreciated. The manuscnpt . was completed during the academic year 1 975-6 w1th the �lp of a grant from the National Endowment far the Huma�tles. . . . Among the many individuals who gave me adv1ce, cntlc1sm, and encouragement at various stages of my work are Ralph E. Giesey, Douglas Hodgson, Donald R. Kelley, J. G A. : Pocock, J. H. M. Salmon, and Eileen P. Sullivan. I am espec1ally grateful for the judicious appraisal an encouragement l rcccived from Abraham Ascher, and I am mdebted to Herbert A. Deane far his careful reading and discerning comments. In rcvising the manuscript far publication, I profìted great y f�om . scvn:tl ·conversations with Quentin Skinner, whose cntlc1sms wc n· :tl wa s to the point and generously constr cti e. I wish to y � � iiLIIIL my wife, Paula A. Franklin, for her edttonal help and lo1 Ilull:lging to maintain her patience.
The background of the problem
IN THE couRsE of the English civil wars a new dimension was added to the constitutionalist theory of sovereignty which entered the main tradition through the work of Locke. In the last chapter of the Second Treatise, entitled ' Of the Dissolution of Government,' Locke insists on the right of the people, acting for just cause, not only to replace its governors but to change the form of government itself. By the people, furthermore, he does not mean the Parliament, or even the House of Commons within Parliament, but the generai politica! community con sidered as a separate legai entity. This idea seemed radica! at the time it was published, and was repudiated by the Whigs. But it did not originate in any particular zeal for politica! democracy. In the form in which Locke encountcred it, and as he used it, it seemed to be thc onl y principle of rcsistance consistent with the relationships of sovcn.:ignty i n a mixed constitution. In earlier constitutionalist thcory, wbich had attaincd defi nitive elaboration in the monarchomach writcrs of thc sixtccnth century, the right of resistance and of dcposi tion had also been based on the constituent power of thc pcoplc. Sincc ali legiti mate authority derived from the conscnt of thc community and was thereby subject to conditions, thc pcoplc had the right to depose a king if these conditions wcre flagrantly transgressed.1 l
The basic themes of monarchomach thcory are trcatcd in many p laces . My
view is presented in Julian H. Franklin, Constitutionalism and Resistance in the Sixteenth Century (Ncw York, H)69).
For generai surveys of European politica! thought in this period, see
]. W. Allen, Politica! Thouglzt in tlze Sixteenth Century I
fohn Locke and the theory of sovereignty
The background of the problem
But in this monarchomach tra d i tio n , the constituent power of the pcoplc was alrnost :dways cquatcd with the right of the Thrcc Estatcs or othcr hody i11 whi c h thc people were con� sidcrcd to be reprcscntcd. In ot hn words, thc right of the pcoplc's rcprcsclll:ll i ve :rnd t ha t of thc generai community were asslllll(:d lo hc kg:dly tx]uivalcnt an d intcrchangcable- by substitution, :ts it wct-c." l lcncc thc righ t of tbc Estates to act
intend thereby that freedom to act by the Estates should be
restricted. Individuai acts of tyrannicide, or a rising by ordinary subjects, were but remedies of last resort, when the Estates were unwilling or unable to take action, and the higher magistrates and nobles had failed to do their duty. 8 Hence the right of the Estates to act against a tyrant as the people's substitute was the
common assumption of all constitutionalist commentators.4 Thus understood, however, the right of deposition was
against a tyrant w:1s thought lo be inhcrcnt in their capacity as
technically incompatible with a mixed or limited monarchy.
rcprcsentativcs, and thc originai contract by which the king was
consi i tutcJ was po r tr a ycd as an aet of the Estates on behalf of
thc community. Among most of the best known monarchomachs, indeed, thc vcry constitution of the people as a corporate association was in the form of an Estates assembly. Given the fear of dem� cratic revolution in this period, this interpretation rapidly became predominant. The right of resistance could be confined to the established representative, and, where the Estates were incapable of acting, to the higher magistrates and nobles of the kingdom whom the Estates had supposedly instituted to restrain the king on their behalf. Initiation of resistance by ordinary subjects, and so by the populace at large, was forbidden as anti� social and anarchie. Yet even those who admitted individuai initiative did not and Pierre Mesnard, L'essor de la philosophie politique au XVI" siècle (2nd ed. Paris, I 95 I). Still lacking is a detailed and comprehensive study not so much of the 'systems' of individuai thinkers as of the main intel lectual trends as they develop in response to politica! issues and institutional changes. But that need will soon be fully supplied by Quentin Skinner in his forthcoming book, The Foundations of Modem Politica! Thought, 2 vols. (Cambridge, I978). " Thc assumption of full substitution is especially articulate in the Vindiciae contm tyrannos. And it is used to describe not only the Estates but the m:tgistrates who are assumed to hold of the Estates either by election or a tcumc crcatcd by the Estates in the past. 'When we speak of the people mllc-nivdy, we mean those who receive authority from the people, that is, liw m>gistratcs below the king who have been elected by the people or . . ,.�:�J.lislwd in some other way. Those take the piace of the people assembled wluolc· :111d are cphors to kings and associates in thcir rule. And we also ;�·. ""''"' tlw "'"·nnhly of the Estates, which are nothing less than the epitome .,J :o lt ingdom lo which ali public matters are rdcrrcd.' (Franklin, (-�'!l lfitu!ÌtJJJtt!i.fnl, p. 1 '19·)
In a limited monarchy the king, although circumscribed by law, has a legal monopoly of all constitutional initiatives; in a mixed monarchy constitutional initiative is shared by the king and the Estates. In either form the king is vested with a large sphere of independent power which the representative body must be forbidden to assume. 5 Where the Estates hold con� stituent authority, however, no such independence is allowable. 3
Appeal to individuai resistance in first instance was sometimes allowed by medieval writers. But this had been regarded by most as dangerously anarchie. With the growth of representative institutions, individuai resis tance (when admitted at ali) tends to be reduced to the status of a last resort. 4 The only exception to this rule is George Buchan:m, Dc jure regni apud Scotos (I578), in Opera Omnia (Edinburgh, 17I5), vol. I, who holds (p. 13) that acts of the Estates do not obtain thc force of law unlcss thcy have been ratified by the (tacit) conscnt of thc generai community. There is thus some conception in Buchanan of 1hc pcnplc as " corporale cntity dis tinct from the Estates, and having po wcrs of its own. I :m1 indcbted to Quentin Skinner for calling this point to my :tllcntion. Buchanan, however, does not deny thc rights of lite Fstalcs Lo substitute for the people in ali respects so long, prcsllmahly, '" rhcir :1cts wcrc not flagrantly neglectful of the public intncst. 'l'hai. this suhslilution by the Estates also extended to the constituent funrlions of crc:tling and deposing kings is clearly indicated by many p:tss:tgcs in Buchanatl's slightly later work, The History of Scotland (1582), trans. J. Praser (London, 1689). See especially 1, I I4, 269, 33 I; and n, 215, 21 (i, 222. s This distinction between limited and mixed is prcscnted from a modern point of view. Most European writers, in so far as they are able to recognize an independent but qualifì.ed kingship, do not distinguish different modes . The distinction between limited and mixed is embryonic in many English writers of the seventeenth century and thcsc terms are used by Philip Hunton (see below, pp. 41ff.). But Hunton's distinction does not exactly correspond to the one offered here.
fohn Locke and the theory of sovereig11ty
The background of the problem
Sincc the powcrs of the king are granted to him on condition, hc is obliged to use them in the public interest. And if the Estatcs have all the powers of the principal by which that agcncy was constituted, there can be no power in the king that
explicitly observe or clearly imply that the assembled reprc sentative can assume all the powers of the centrai government whenever i t sees need to do so. 7 The essence of monarchy, in the monarchomach perspective, is the right of the king to govern in conformity with law when the representative is not in session. Since the Estates of the sixteenth century were not assembled continuously or even frequently, there is a certain common sense in this idea of monarchy, and it could go hand in hand with a large degree of effective power in the king. Yet in strict juridical terms, the king in this conception is not an
r�stricts their scope of j udgment. The deliberate opinion of the
Estatcs, when actually assembled, must defìne the public interest
authori tatively. In monarchomach theory, then, there was no sphere of public powcr that the Estates could not assume. Thus in all European monarchies the power of declaring war was wholly or partly vested in the king. But if, in a given situation, the Estates were assembled and requested \Var, the king would be oblio-ed to yield, even against his better judgment. This would a ply to every other area of executive and legislative power, for on the premise we have j ust described all powers of the king had to be temporarily suspended in the presence of the assembled repre sentative. The same consideration can be stated m another way. A king could not presume to refuse, or veto, a persistent request of the Estates, or order them dissolved against their will, with ?ut appearing to assert that his power to defìne the public mterest was unconditional and arbitrary. A king who adopted such a course would eo ipso be culpable of tyranny, and he would become liable to resistance or removal by those who had granted him his office. The monarchomach theorists do not always stress this out come, and often write of any given monarchy as though it were limited or mixed.u But ali of them, at some point or another,
François Hotman, in the Francogallia, puts the entire contro!. of
p11hlic afhirs in the Estates Assembly and thinks of the king as properly l•111 liw prcsiding officer therein (Franklin, Constitutionalism, pp. 7r, 73). Y' 1 lw l:ivishly praises the French constitution as a' mixture' (ibid. pp. 66-8). · �l�: