Grotius allows farther, that where the society has any particular interest in keeping all its members together; suppose, for instance, that the public is in debt, so that the burden of paying the debt will be less felt, in proportion as there are more persons to bear a part of it; or suppose that the state is engaged in a war, or any other undertaking, the success of which depends upon its numbers; no person can leave the society consistently with his obligations to it, unless he has taken care to satisfy the interest, which it has in his continuing united to it. Now, if this is a true principle, if no member of a civil society is at liberty to withdraw himself from it, where the society has a particular interest in his not withdrawing himself; the consequence is, that no member can leave the society, till he has first obtained the consent of the public: unless we maintain that each member has naturally a right to judge and determine between himself and the public, how far it is interested in his staying or withdrawing himself.

If each individual was at liberty to leave the state to which he belongs whenever he pleases, civil society would be nothing but a rope of sand; it would be impossible for a common good to be effectually promoted, or for a common mischief to be effectually guarded against. Every member of the society would be at liberty either to continue in it, and endeavour to advance the general interest, or to leave it, in order to advance a separate interest of his own. And in times of public distress, whoever could shift for himself would be at liberty to do so, though he left the other members of the society to perish for want of his assistance. But the great end of forming civil societies is to promote a common good, and to guard against a common mischief. Certainly, therefore, the nature of civil society can never allow such a liberty as this to its members: because it is inconsistent with the end which a civil society proposes to itself. Each particular member, indeed, proposes to advance his own interest, to obtain his own benefit, and to guard himself against such dangers, as he would be exposed to in a state of nature. But this design of any individual, though it is the motive which engaged him to join himself to the society, is not the measure of the obligation which he is under towards it. The other individuals, who are associated with him, as each of them had the same view for himself that he had, would not have joined with him for these purposes of promoting his benefit, and of securing him from violence, unless he would consent to join with them for the like purposes, for the purposes of promoting their benefit, and of securing them from violence. So that if each member is considered in his turn as an individual joining himself to society, and the other members are considered as the society to which he joins himself; the ends proposed on each part are their respective benefit and security. And as these are the terms upon which they associate; the very act of associating implies, that they agree to these terms, that each individual consents to join in promoting the common interest, and in maintaining the common security of the rest. The end, therefore, which each proposes, is a particular good to himself: but he cannot pursue this end by the help of civil society; that is, the society will not receive him as a member upon any other terms, but those of consenting, and, consequently, of obliging himself by such consent, to join with it in promoting a general good. Protection is the end which he proposes; and as the society, by receiv

ing him, agrees to this end, it becomes the measure of the society's obligation towards him. Allegiance is what the society expects in return; and as he, by joining himself to it, agrees to these terms, they become the measure of his obligation towards the society. But in this mutual obligation thus derived from mutual consent, as in all other contracts, where there is no failure in performing the conditions stipulated on one part, it would be unjust not to perform the conditions stipulated on the other part; unless the parties contracting have released one another by a like consent: as long as the society grants the protection which it owes to the individual, he cannot justly withdraw the allegiance which he owes to the society, unless he has the consent of the society for so doing.

There is, however, no reason for maintaining, in the meantime, that every person, who is a member of any civil society, must necessarily continue a member of the same society, unless the public expressly consents to his removal from it. Where an individual of little or no importance to the state removes, and is neither stopped at first, nor reclaimed afterwards; this may be looked upon as a tacit consent; the public may be presumed to agree to what it does not hinder. And thus far the opinion of Grotius may be admitted to be true; that though a single member, of no importance, may thus remove, in times of peace and security, without the express leave of the state; yet no individual of great importance, nor a great number of individuals, who are made of importance by their numbers, nor any individual in times of public distress, when the situation of affairs makes every one of importance, can presume upon the consent of the state, but in order to justify their removal, they ought to have its express consent: not because an inconsiderable person, in times of peace and security, has any more right to withdraw from a society without its consent, than he would have in times of public danger; or than an important person, or a number of persons of any sort would have at any time; but because the consent of the society, though it is not expressly granted, may be more reasonably presumed in one case, than it can be in the other.

any

This obligation, upon every individual who is a member of civil society, not to leave it without either the express or the tacit consent of the public, is no exception to an instance, just now mentioned, of persons freeing themselves from lawless tyranny and oppression by a voluntary exile: since the withdrawing protection on the part of the society, and much more such lawless tyranny and oppression, as is not only inconsistent with the notion of protection, but is directly contrary to it, must necessarily be looked upon as a discharge from allegiance on the part of its members. For in this contract between the members and the body, as in all other contracts of a like sort, when one of the parties refuse to discharge their part of the obligation, this is naturally a release to the other party.

How far allegiance VIII. A civil society, says * Grotius, has no claim of to a civil society is allegiance upon its banished members. And certainly due from its ban- this must be true in general: because the obligations of protection, on the part of the society, and of allegiance on the part of its members being mutual; whenever the society judges

ished members.

* Grot. Lib. II. Cap. V. § XXV.

the crimes of any one of its members to be such as will discharge it from affording him protection any longer, and will justify it in forcing him to leave it, the natural consequence of its withdrawing protection is, that such member will be discharged from all claims of allegiance, which the society had upon him. We might as reasonably maintain, on the one hand, that the public owes protection to the individual, when he has withdrawn his allegiance, as on the other hand, that the individual owes allegiance to the public, when it has withdrawn its protection. All that can be said to make these two cases appear different is, that if the individual is banished for any crimes committed by him, the public has a just cause for putting him out of its protection; whereas, if he has left the society without its consent, he has not justly withdrawn his allegiance. But this difference is not at all material to the point in question. If, indeed, we maintained, that where protection is withdrawn by the society, allegiance may be withdrawn by the member in the way of reprisal; it might be something to the purpose to urge, that in the case of banishment, the state has a just cause for putting the member out of its protection: because then it would follow, that where the society has done no wrong to the individual by banishing him, he could not justly make the reprisal of withdrawing his allegiance. But this is not the way in which his obligation to allegiance ceases: it ceases of natural consequence: his right to protection and his obligation to allegiance correspond to one another; and when he loses the right, whether justly or unjustly, the correspondent obligation is at end. However, the opinion of Grotius upon this head, though it is true in general, ought to be so explained as to admit of its natural limitations. A member of civil society is commonly said to be banished, when he is compelled to leave that part of the society's territories, in which he was settled, and had made all his connexions before, and to remove to some distant, and perhaps inconvenient part of them. Such a removal as this, though we usually call it banishment, is not properly a banishment from the society, but only from his own habitation: he still continues within the territories, and consequently is still subject to the civil jurisdiction of the society. So, likewise, we call the temporary removal of a man from under the protection of that society, of which he is a member, by the name of banishment. He is sai to be banished if he is compelled to leave the territories for seven or fo ten years. In the meantime the protection of the society is suspended, and of consequence, his allegiance must be suspended with it. But then, at the expiration of the time, his own state will have the same claim of subjection upon him, that it would have had if he had never been banished: because, as such a banishment is not a final excision of him; the nature of it shows, that the state intended to receive him under its protection again, and to reclaim his allegiance. But where the banishment is not limited to any particular time; or where it appears from the beginning to be a final excision of the member; the regard which he may show to the authority of such society, after he has left it, is merely voluntary; the hopes of being recalled may lead him, but the nature of civil society will never oblige him to pay it.

CHAPTER III.

OF CIVIL POWER.

I. Civil power is legislative or executive.-II. Origin of civil power.III. Legislative power implies a power of altering and repealing laws.-IV. Legislative power implies a power of enacting penalties.V. Legislative power implies a power of taxing the subjects.-VI. Executive power is either external, or internal, or mixed.-VII. Judicial power is internal executive power.-VIII. External executive power is military power.-IX. Appointment of magistrates is mixed executive power.-X. Prerogative, what.-XI. Civil and military power, how distinguished.

Civil power is le- I. IF we attend to the motives which lead men to gislative or execu- unite into civil societies, they will help to give us some tive. insight into the nature of civil power, that is, to inform us what sort of power naturally arises out of such an union. As men are originally led to unite themselves into distinct civil societies, with a view of having their several rights and duties ascertained by a joint or common understanding, and with a view likewise of forming a joint or common force, so as to act with it for their security; we cannot suppose them to have united together, without designing at the same time to establish such powers as would be necessary for obtaining these purposes, which they had in view. The natural consequence therefore of men's forming a civil society, is the establishment of a power in such society, to settle or ascertain, by its joint or common understanding, the several rights and duties of those who are members of it, and of a power likewise, to act with its joint or common force for their defence and security. The former of these is called the legislative, the latter is called the executive power. No other powers besides these are requisite for obtaining the ends which mankind propose to themselves in forming civil societies; no other powers, therefore, besides these are necessary for governing such societies: and consequently civil power, which we have defined to be the power that governs a civil society, consists of these two branches, and of these only. Origin of civil II. After what has been said, it will be needless to stop here and inquire from whence civil power is derived. For since this power, in both its branches, naturally arises from the establishment of civil society, the same consent or agreement of mankind, by which they form themselves into distinct societies, must necessarily be the principle from whence civil power is derived. Legislative power III. The legislative power, as it is here defined, imimplies a power of plies a power not only of making laws, but of altering altering and of re- and repealing them. As the circumstances either of the pealing laws. state itself or of the several individuals which compose it, are changed, such claims and such duties as might once be beneficial, become useless, burdensome, or even hurtful. If, therefore, the legislative power could not change the rules which it prescribes, so as

power.

may

Book II. Chap. II.

*

to suit them to the circumstances of the body politic, and of the members of that body; it could not answer the purposes for which it was established; it could not at all times settle their claims and their duties in such a manner as is most conducive to the good of the whole, and of the several individuals which make up that whole.

ties.

IV. The legislative power implies, farther, a power Legislative power of establishing laws in such a manner as to make them implies a power of effectual; that is, in such a manner as to secure the ob- enacting penalservance of them. For it would answer no purpose at all to show men what their duty is, if they were afterwards to be left at liberty either to discharge or neglect it at their own discretion, without apprehending any particular inconvenience to themselves from not complying with the rules which the common understanding of the society has enjoined. It is possible, indeed, that, in some instances, the share which any individual might promise himself in the general good, would lead him to comply with those laws which he sees will be productive of such a good. It is possible, too, that, in some instances, where he either did not see the general usefulness of laws, or did not apprehend that he should have any share in the general good which they produce, he might be willing to comply with them, out of a proper regard and deference to the public understanding; especially if he found no particular inconvenience to himself from such compliance. But even where the laws made by the public are conducive to a general good, in which the several individuals will probably have a share; many are so selfish as not to be satisfied with such a remote and seemingly small advantage, and are desirous of grasping at what they think will be of greater and more immediate benefit to themselves, however inconsistent it may be with the benefit of the public. Even where men would feel no particular inconvenience from complying with the laws, which the common understanding has thought fit to establish; many are so conceited and petulant, that, instead of obeying a law, because it has been established by the common understanding, they would look upon this as a reason why they should disobey it, as far as they safely can.

Something farther, therefore, is necessary to secure the observance of such rules as the legislative power establishes, besides the mere establishment of them: especially since the advancement of the general good will frequently require not only such laws to be made, as will be productive of more benefit to each individual, than he could obtain without observing them, or such as all may observe without any inconvenience to themselves; but such, likewise, as may cut off many individuals from some private benefit which they might otherwise have obtained, in order to advance the greater benefit of other individuals and of the public in general. One method, therefore, of securing the observance of laws, is to establish them under some penalty; the view of which may check the petulance of those who would otherwise have transgressed them without any reason at all, and may give a proper turn to the selfishness of those who would otherwise have transgressed them upon reasons of private interest. Whether this is the only method or not, shall be considered hereafter.

We may take this matter still higher. All mankind in the liberty of nature have a promiscuous right of punishing criminal actions. But