those who are united in a civil society, have agreed to put themselves under the conduct of the common understanding, to have their duties regulated, and their rights adjusted by the legislative power of that society. And as this power, when it makes laws, regulates the duty of the several individuals, by declaring what actions appear to the common understanding to be contrary to their duty, and are to be treated as crimes; so the same power, when it enacts penalties, adjusts the right of punishing such crimes, by declaring or appointing what punishment is to be inflicted on those who are guilty of them. So that the power of making laws and of enacting penalties, is only one and the same power exerting itself upon different objects: in making the law it exerts itself in ascertaining the rules of duty; in enacting the penalty it exerts itself in adjusting the right of punishment.

V. As it belongs to the legislative power of a civil Legislative power implies a power of Society to direct the several members of it what they taxing the sub- are to do for the common good; so it belongs to the jects. same power to direct them, likewise, what they are to give for this purpose; that is, the power of raising money to answer the expenses which the society must make in its political capacity, or in pursuing the ends for which it was formed, is a branch of the legislative power.

The payment of such money as these purposes require, is an obligation which each individual lays himself under, when he becomes a member of civil society. He tacitly agrees, by this act of becoming a member, to contribute his endeavours towards advancing and securing the general good. And since the general good of the society cannot be advanced and secured, nor even the society itself be kept together without a public revenue, this agreement binds him to pay his share towards such a revenue. This then is a duty of every individual who is a member of civil society. And, consequently, it belongs to the legislative power to settle what share each is to pay: because it belongs to the legislative power to adjust and ascertain the duties of each.

This right of the legislative power over the property of the subjects is not a right to take the whole, or, indeed, any part of it, from them causelessly and arbitrarily. The preservation of each man's property is one of the ends which he proposed to himself in entering into civil society. But it is absurd to suppose, that he would give up the whole of his property for the sake of preserving it. And the right which the society has, either over his person or over his property, is to be measured by what he may reasonably be presumed willing to give up for the sake of obtaining those ends, which he proposed to himself in becoming a member of such society. It is, indeed, reasonable to presume, that each individual would be willing to give up a part of his property for the sake of enjoying the rest in peace and security. It is, therefore, the business of the legislative power to consider and to direct what part of each man's property it is worth to have the rest secured to him. Now, the security which he has in view, depends upon preservation and welfare of the public. And for this reason the legis lative power, in settling what each person is to pay, should consider how much of each person's property it would be worth to him to preserve the state and advance its welfare: because, whatever appears to the common understanding to be necessary for these purposes, is what

the

every person who belongs to the state, is naturally presumed to be willing to part with. Upon this account the burden of those payments which are called taxes, or duties and customs upon goods both moveable and immoveable, ought to be proportioned, as near as may be, to the value of each person's property: because the more a man's property is worth, the more he is naturally willing to pay for the security of it. From hence we may see the reason why these payments are naturally made higher in times of public danger, than in times of peace and quiet: the more a man's property is exposed to danger, and the more expense the society is at in defending and securing it; the more he is reasonably bound to pay for having it secured.

It might, perhaps, be of public benefit, if the state could get possession of a private man's lands. The society may want them for enlarging their roads, for erecting fortifications, or other public works of general utility. The principles here laid down will show us that the right which the legislative power has in the property of individuals, will not justify the taking such a man's lands from him, without making him amends. Such a tribute as this would not be a tax which all the members pay in proportion to their property; it would be a payment exacted of one man for the benefit of the whole, and would, therefore, be contrary to the nature of civil society, which requires, that the burden of all such public payments should be borne by the several members, in proportion to the interest which their property gives them in the general utility. But though the public should force him to give up his land, the burden is borne by all the members, if amends is made to him for it.

Some taxes or duties are paid, indeed, rather for the security of a man's person, or for the quiet enjoyment of some personal conveniences, than for the security of his property: such are poll-taxes, duties upon marriages, and many others of the like sort. But the same principles, with very little variation, are applicable to these payments. They are a part of a man's property, which he is presumed to be willing to give to the society, for the defence of his person, and for the quiet enjoyment of these personal conveniences. The chief difference between these taxes and others, is, that since such advantages as these are of equal value to all, the tax, which each pays to the public for securing them, may reasonably be an equal one: whilst other taxes, which are paid for the security of each person's property, follow the value of that property, or are proportionable to the worth of it.

mixed.

VI. The natural use of the joint strength which a Executive power civil society forms, is either to preserve the rights and is either internal, enforce the duties of the members of such society, in or external, or respect of one another, and of the public; or else to protect the whole and the several parts of it against such injuries as other civil societies, or other individuals, who still continue in a state of nature, or who are members of other civil societies might do them; to prevent such injuries from proceeding, where they are begun; or to procure reparation, and inflict punishment, where they are completed. Now, the executive power is a power of acting with this joint strength, in order to obtain the purposes for which such strength was formed. And, consequently, the executive power is either internal or external. We may call it internal, when it is exercised upon objects

within the society; when it is employed in securing the rights, or enforcing the duties of the several members, in respect either of one another, or of the society itself. And we may call it external executive power, when it is exercised upon objects out of the society; when it is employed in protecting either the body or the several members of it against external injuries, in preventing such injuries from being done, or in procuring reparation, or in inflicting punishment for them, after they are done. These two branches of the executive power, may, if we like these names better, be called civil and military. Civil executive power is a name which will very well express all that is meant by internal executive power. And the only objection against calling external executive power by the name of military executive power, is, that something more is included in this branch of power, besides what is strictly called military.

power.

Judicial power is VII. Judicial power is the internal or civil branch of internal executive executive power exerting itself under such checks and controls as the legislative power has subjected it to, in order to prevent its deviating from the purposes for which it was formed. A legislative power, without an executive one, would be of no great use. It might, indeed, ascertain the rights, and determine the duties of the subjects; but unless the common strength of the society comes in to its assistance; that is, unless the executive power interposes to support those rights, and to enforce those duties, the laws might fail of obtaining their effect; it would depend upon the virtue, or upon the humour of the subjects, whether they should obtain it or not. On the other hand, an internal executive power, which is under no checks or controls from the legislative, would be more dangerous than useful: it must be either a brute force, uninformed and unguided by any intelligent principle, or else a discretionary power in the hands of them, who are entrusted with the management of it. In the former case the wrong or the right application of it would be merely accidental; and in the latter case it would probably be oftener made use of as an instrument of private interest and undue favour of avarice or oppression, of revenge or cruelty, than as the means of doing justice to the public,

and to the several members of it.

But in matters of internal jurisdiction, the executive power will plainly appear to be such an one, as is calculated to answer its proper purposes; if we consider it as acting, in this instance, under the direction and conduct of the legislative. Now, as the legislative power adjusts and settles the rights of the several members of a civil society, it naturally belongs to this power to determine how far, and upon what occasions, they shall have a right to the interposition of the common force; that is, it naturally belongs to this power to direct the use and extent of the internal executive power. Effectual care will be taken about the due use of this common force, if provision is made, that it shall not be put in motion in criminal matters, unless the fact to be punished is first made evident in the eye of the law; that is, in the judgment of the public understanding, speaking by the law; and unless the fact, when so made evident, is such an one as the law has declared to be punishable: and if a farther provision is made, that, after the fact is clear, and the legal guilt of it is apparent, no other use shall be made of this common force, besides what the law allows; that is, that no

other punishment shall be inflicted but what the law has prescribed. The like care is taken, if a like provision is made, in matters of claim for restitution or damages done; if the law does not allow the claimant to have any assistance from the common force, till his right is made evident in the same manner; and then allows him no farther assistance from it, than what the law has determined to be sufficient to enforce his claim, or to obtain satisfaction.

We may observe here, that the judicial power is divided into two branches; one is called civil judicature, and the other criminal or penal judicature. The former acts with the common or joint force of the society to obtain restitution of what is unjustly withholden, or reparation for damages done. The latter acts in like manner to inflict punishment for the guilt of crimes committed.

The name of judicial power, which belongs to this power in both these branches, has probably been what leads many writers upon this subject to distinguish it from executive power. Having determined the notion of executive power to consist in a power of using and applying the joint force of a civil society, they do not immediately see how it could ever be called by the name of judicature; since judicature implies an act of the common or public understanding, and not a mere exercise of the common force. In the meantime they are aware, that judicature and legislation are different things; that the former is the application of such laws as are derived from the authority of the latter. And thus, as they distinguish the judicial from the executive power on the one hand, so they distinguish it likewise from the legislative power on the other hand. The consequence of which has been, that they consider the civil power as consisting of these three several parts, legislative, judicial and executive. Whereas, in fact, the province of judicial power is plainly to direct and apply, to actuate or restrain, the public force of the society; and in this view it can be nothing else but a branch of the executive power. All the formalities which precede this application of the public force, are so many checks and controls which the legislative has fixed, to prevent an undue application of it. Courts of judicature are the means by which the legislative controls the executive. Their proceedings are settled by the direction of the legislative, and the executive acts under their direction. The name of that power, which such courts exercise, regards them indeed as the instruments of the legislative, rather than as the principal agents of the executive; as checks of the common understanding upon the common force, rather than as the springs which put that force in motion, and direct its application. But in whatever light the judicial power might be considered by them who gave it this name, its efficacy and the use that it is of to civil society, arise from its being executive in its nature. Courts of judicature might meet, might hear causes, and might give sentence upon them, as the laws direct; but these sentences would be nothing; they could neither redress injuries nor inflict punishment, if such courts had not either an original or a delegated power of acting with the joint force of the society to put their sentence in execution. VIII. The second branch of executive power, which External is called external executive power; or may, if we like tive power, the name better, be called military power, is the military power. of acting with the common strength or joint force of the society to guard

power

execu

or

or

against such injuries as threaten it from without; to obtain amends for the damages arising from such injuries; or to inflict punishment upon the authors and abettors of them. The force of the society, as it is em ployed upon these objects, is called its military force. And the only objection against calling this whole branch of the executive power by the same name is, what has been *hinted already, that this external branch of executive power, or rather the persons vested with it, are employed, not only in the actual use of the common force, but in regulating, abating or stopping it. Thus, if the society is attacked, or any of its rights are infringed by foreign enemies; it is the usual province of them, who are vested with this power, not only to make war upon such enemies, but likewise, as the circumstances of the case may require, to suspend the war by a truce, or to end it by a peace. Nor is this usually the whole of their province. As a civil society may be attacked by more or by stronger enemies than it can conveniently, perhaps than it can at all defend itself against by its own strength, there is frequent occasion to call in the assistance of others to help it. And because the procuring and engaging such assistance, as well as the actual use of it, when procured, is usually considered as an act of the common force; this is looked upon as a part of external executive power. Farther still; as this power acts with the common force of the society against its foreign enemies, where those enemies infringe its rights, and likewise stops or suspends its action, where the purposes of using it are answered, or are likely to be answered; the power of adjusting the rights of the society in respect of foreigners is commonly connected with external executive power, and is considered as a part of it. Hence it is that, when we are speaking of external executive power, we are supposed to include under that head, not only what is properly called military power, but the power likewise of making war or peace, the power of engaging in alliances for an increase of strength, either to carry on war or to secure peace, the power of entering into treaties, and of making leagues to restore peace, where there has been a war, and the power of adjusting the rights of a nation in respect of naviga tion, trade, &c. by conventions or agreements.

However, though these several powers are usually connected with external executive power, by being lodged in the same hands, they are not naturally essential parts of it. These several powers are rather acts of the common understanding, than of the common force; and therefore seem, in their own nature, to be parts rather of the legislative than the executive power. But where the legislative and the executive power are lodged in different hands, and especially in those civil societies, where the former of these powers resides in the whole body, or in a considerable number of representatives, the usual practice is to allow some degree of discretionary power in respect of war or peace, to him or to them, who are entrusted with the right of putting the military force in motion; especially in those instances where the legislative body cannot act with such readiness and expedition as the occasions or opportunities of war require. And since war is the means by which, in the last result, all the rights of the society in respect of foreigners must be defended and maintained; it is usually thought convenient that

*Book II. Chap. II. § VI.