West''''s encyclopedia of American law 2ND EDITION Volume 12 potx

CHAPTER 4 The guardians of the land of any heir, who isbelow age, shall not take from the land of theheir more than reasonable exits [revenues], andreasonable customs, and reasonable ser

2 ND EDITION

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

2ND EDITION

Volume 12 Primary Documents

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VOLUME 1

Preface iii

Contributors vii

A–Ba 1

Abbreviations 507

VOLUME 2 Preface iii

Contributors vii

Be–Col 1

Abbreviations 511

VOLUME 3 Preface iii

Contributors vii

Com–Dor 1

Abbreviations 511

VOLUME 4 Preface iii

Contributors vii

Dou–Fre 1

Abbreviations 509

VOLUME 5 Preface iii

Contributors vii

Fri–Jam 1

Abbreviations 501

VOLUME 6 Preface iii

Contributors vii

Jap–Ma 1

Abbreviations 469

VOLUME 7 Preface iii

Contributors vii

Mc–Pl 1

Abbreviations 467

VOLUME 8 Preface iii

Contributors vii

Po–San 1

Abbreviations 461

VOLUME 9 Preface iii

Contributors vii

Sar–Ten 1

Abbreviations 465

VOLUME 10 Preface iii

Contributors vii

Ter–Z 1

Abbreviations 459

VOLUME 11

Milestones in the Law

VOLUME 12

Primary Documents

VOLUME 13

Dictionary of Legal Terms Cases Index

General Index

Contents

The U.S legal system is admired around the

world for the freedoms it allows the vidual and the fairness with which it attempts to

indi-treat all persons On the surface, it may seem

simple, yet those who have delved into it know

that this sytem of federal and state constitutions,

statutes, regulations, and common-law decisions

is elaborate and complex It derives from the

English common law, but includes principles

older than England, along with some principles

from other lands The U.S legal system, like

many others, has a language all its own, but too

often it is an unfamiliar language: many

con-cepts are still phrased in Latin The second

edi-tion of West’s Encyclopedia of American Law

(WEAL) explains legal terms and concepts in

everyday language, however It covers a wide

variety of persons, entities, and events that have

shaped the U.S legal system and influenced

public perceptions of it

MAIN FEATURES OF THIS SET

Entries

This encyclopedia contains nearly 5,000entries devoted to terms, concepts, events,

movements, cases, and persons significant to

U.S law Entries on legal terms contain a

defini-tion of the term, followed by explanatory text if

necessary Entries are arranged alphabetically in

standard encyclopedia format for ease of use A

wide variety of additional features, listed later in

this preface, provide interesting background and

supplemental information

Definitions Every entry on a legal term is

followed by a definition, which appears at thebeginning of the entry and is italicized TheDictionary and Indexes volume includes a glos-

sary containing all the definitions from WEAL.

Further Readings To facilitate further

research, a list of Further Readings is included atthe end of a majority of the main entries

types of cross-references, within and followingentries Within the entries, terms are set in smallcapital letters—for example, LIEN—to indicatethat they have their own entry in the encyclope-dia At the end of the entries, related entries thereader may wish to explore are listed alphabeti-cally by title

Blind cross-reference entries are also

includ-ed to direct the user to other entries throughoutthe set

In Focus Essays

In Focus essays accompany related entriesand provide additional facts, details, and argu-ments on particularly interesting, important, orcontroversial issues raised by those entries Thesubjects covered include hotly contested issues,such as abortion, capital punishment, and gayrights; detailed processes, such as the Food andDrug Administration’s approval process for newdrugs; and important historical or social issues,such as debates over the formation of the U.S

Constitution

Preface

x P R E F A C E

Sidebars

Sidebars provide brief highlights of someinteresting facet of accompanying entries Theycomplement regular entries and In Focus essays

by adding informative details Sidebar topicsinclude the Million Man March and the branch-

es of the U.S armed services Sidebars appear atthe top of a text page and are set in a box

Biographies

WEAL profiles a wide variety of interesting

and influential people—including lawyers,judges, government and civic leaders, and his-torical and modern figures—who have played apart in creating or shaping U.S law Each biog-raphy includes a timeline, which shows impor-tant moments in the subject’s life as well asimportant historical events of the period

Biographies appear alphabetically by the ject’s last name

sub-ADDITIONAL FEATURES OF THIS SET

Enhancements Throughout WEAL, readers

will find a broad array of photographs, charts,graphs, manuscripts, legal forms, and other visu-

al aids enhancing the ideas presented in the text

Indexes WEAL features a cases index and a

cumulative general index in a separate volume

Appendixes

Three appendix volumes are included with

WEAL, containing hundreds of pages of

docu-ments, laws, manuscripts, and forms tal to and characteristic of U.S law

fundamen-Milestone Cases in the Law

A special Appendix volume entitled stones in the Law, allows readers to take a closelook at landmark cases in U.S law Readers canexplore the reasoning of the judges and thearguments of the attorneys that produced majordecisions on important legal and social issues.Included in each Milestone are the opinions ofthe lower courts; the briefs presented by the par-ties to the U.S Supreme Court; and the decision

Mile-of the Supreme Court, including the majorityopinion and all concurring and dissenting opin-ions for each case

Primary Documents

There is also an Appendix volume ing more than 60 primary documents, such asthe English Bill of Rights, Martin Luther KingJr.’s Letter from Brimingham Jail, and severalpresidential speeches

contain-Citations

Wherever possible, WEAL entries include

citations for cases and statutes mentioned in thetext These allow readers wishing to do addition-

al research to find the opinions and statutescited Two sample citations, with explanations ofcommon citation terms, can be seen below andopposite

1 Case title. The title of the case is set in italics and indicates the names of the par- ties The suit in this sample citation was between Ernesto A Miranda and the state of Arizona

2 Reporter volume number. The number preceding the reporter name indicates the reporter volume containing the case (The volume number appears on the spine of the reporter, along with the reporter name.)

3 Reporter name. The reporter name is abbreviated The suit in the sample cita- tion is from the reporter, or series of

books, called U.S Reports, which

con-tains cases from the U.S Supreme Court.

(Numerous reporters publish cases from the federal and state courts.)

4 Reporter page. The number following the reporter name indicates the reporter page on which the case begins

5 Additional reporter citation. Many cases may be found in more than one reporter The suit in the sample citation also

appears in volume 86 of the Supreme

Court Reporter, beginning on page 1602

6 Additional reporter citation. The suit in the sample citation is also reported in

volume 16 of the Lawyer’s Edition,

sec-ond series, beginning on page 694

7 Year of decision. The year the court issued its decision in the case appears in parentheses at the end of the cite

Miranda v Arizona, 384 U.S 436, 86 S.Ct 1602, 16 L.Ed 2d 694 (1966)

Brady Handgun Violence Prevention Act, Pub L No 103–159, 107 Stat 1536 (18 U.S.C.A §§ 921–925A)

1 Statute title.

2 Public law number. In the sample

cita-tion, the number 103 indicates that this law was passed by the 103d Congress, and the number 159 indicates that it was the 159th law passed by that Congress.

3 Reporter volume number. The number

preceding the reporter name indicates the reporter volume containing the statute.

4 Reporter name. The reporter name is

abbreviated The statute in the sample

citation is from Statutes at Large.

5 Reporter page. The number following

the reporter name indicates the reporter page on which the statute begins.

6 Title number. Federal laws are divided into major sections with specific titles.

The number preceding a reference to the

U.S Code Annotated is the title number.

title 18 of the U.S Code is Crimes and Criminal Procedure.

7 Additional reporter. The statute in the sample citation may also be found in the

U.S Code Annotated.

8 Section number. The section numbers

following a reference to the U.S Code

Annotated indicate where the statute

appears in that reporter.

Lynne Crist Paul D Daggett Susan L Dalhed Lisa M DelFiacco Suzanne Paul Dell’Oro Dan DeVoe

Joanne Engelking Sharon Fischlowitz Jonathan Flanders Lisa Florey Robert A Frame John E Gisselquist Russell L Gray III Frederick K Grittner Victoria L Handler Heidi L Headlee James Heidberg Clifford P Hooker Marianne Ashley Jerpbak Andrew Kass

Margaret Anderson Kelliher Christopher J Kennedy Anne E Kevlin Ann T Laughlin Laura Ledsworth-Wang Linda Lincoln

Gregory Luce David Luiken Jennifer Marsh Sandra M Olson Anne Larsen Olstad William Ostrem Lauren Pacelli Randolph C Park Gary Peter Michele A Potts Reinhard Priester Christy Rain Brian Roberts Debra J Rosenthal Mary Lahr Schier Mary Scarbrough Theresa L Schulz John Scobey James Slavicek Scott D Slick David Strom Wendy Tien Douglas Tueting Richard F Tyson Christine Ver Ploeg George E Warner Anne Welsbacher Eric P Wind Lindy T Yokanovich

Contributors

FOUNDATIONS OF U.S LAW

English Law 2

Magna Charta 3

English Bill of Rights 11

Second Treatise on Government 16

The Colonial Period 45

Mayflower Compact 46

The Laws and Liberties of Massachusetts 48

Frame of Government 50

South Carolina Slave Code 52

Conflict and Revolution 56

Stamp Act 57

Townshend Acts 69

Declaration of the Causes and Necessity of Taking Up Arms 79

Common Sense 83

Virginia Declaration of Rights 85

Declaration of Independence 87

Treaty of Paris 90

Origins of U.S Government 94

Articles of Confederation 96

Northwest Ordinance 102

The Virginia, or Randolph Plan .107

The New Jersey, or Paterson Plan .110

Constitution of the United States 112

Bill of Rights 124

Federalist, Number 10 126

Federalist, Number 78 130

The Virginia and Kentucky Resolves 133

Monroe Doctrine 136

CIVIL RIGHTS Slavery 140

Missouri Compromise 141

Wilmot Proviso 146

Compromise of 1850 147

Kansas-Nebraska Act 158

Dred Scott v Sandford 165

“A House Divided” Speech 305

Emancipation Proclamation 307

From Segregation to Civil Rights 309

“The Civil Rights Cases” 311

Plessy v Ferguson 337

Letter from Birmingham City Jail 350

“I Have a Dream” Speech 359

Civil Rights Act of 1964 362

Voting Rights Act of 1965 384

Women’s Rights 392

Seneca Falls Declaration of Sentiments 394 Ain’t I a Woman? 396

Bradwell v Illinois 398

National Organization for Women Statement of Purpose 404

Native American Rights 407

Worchester v The State of Georgia 409

Surrender Speech 451

C ONTENTS

Appendix: Primary

Documents

x v i P R I M A R Y D O C U M E N T S

Treaty with Sioux Nation 452

My Son, Stop Your Ears 456

REFLECTIONS ON LAW AND SOCIETY

Presidential Speeches 460

George Washington: Farewell Address 461Abraham Lincoln: Gettysburg Address 470Abraham Lincoln: Second InauguralAddress 471Woodrow Wilson: Fourteen Points 473Franklin D Roosevelt: First InauguralAddress 476John F Kennedy: Inaugural Address 479Lyndon B Johnson: Voting Rights ActAddress 481Ronald W Reagan: First Inaugural

Address 484George W Bush: Address to Congress,September 20, 2001 488

Legal Scholarship 493

Lawyers and Judges 495

What Shall Be Done With the Practice

of Courts? 500Contracts 503The Path of the Law 505Brief for the Defendant in Error,

Muller V Oregon 518

Mechanical Jurisprudence 521The Causes of Popular Dissatisfaction with the Administration of Justice 529Some Reflections on the Reading ofStatutes 539

LEGAL MISCELLANY

Presidents and Vice Presidents of the United States 553Presidential Nominations to the

Supreme Court 554Time Chart of the Supreme Court 556Succession of Supreme Court Justices 559

U S Attorneys General 560Congressional Timeline 562British Regnal Years 564

ENGLISH LAW

The development of U.S law is rooted inEnglish political and legal history The

colonial settlers of North America were

primari-ly from England, and until the 1760s theyviewed themselves as English rather than

“American.” They brought with them theEnglish COMMON LAWand the English constitu-tional tradition

Unlike the United States, England has neverhad a written constitution Instead, the Englishconstitutional tradition is based on the substanceand procedures of the common law, along with

key documents, such as Magna Charta and theEnglish Bill of Rights In the seventeenth andeighteenth centuries, political philosophers,especially JOHN LOCKE, challenged the absoluteauthority of the monarchy and introduced thedemocratic idea that the people have a right to agovernment that meets their needs These docu-ments and ideas assumed great importance asthe American colonists moved toward independ-ence in the 1770s In this sense English ideaspaved the way for the American Revolution andthe writing of the U.S Constitution

FOUNDATIONS OF U.S LAW

The document that has come to be known asMagna Charta (spelled variously as

“char-ta” or “car“char-ta”), or Great Charter, is recognized as

a fundamental part of the English

constitution-al tradition Although it is not a constitution, it

contains provisions on criminal law that were

incorporated into the Bill of Rights of the U.S

Constitution

In 1215 King John of England (1199–1216)fought more than forty English barons and their

followers in a civil war The king had angered the

barons by extracting revenues based on their

feudal obligations in order to fight a war in

France After John lost the war, the barons

rebelled against the king

The rebels first demanded that the king firm the Charter of Henry I, a coronation char-

con-ter from 1100 in which King Henry I had

prom-ised to abolish all evil customs that oppressed

the realm Additional grievances were added to

the charter, which King John was forced to

accept at Runnymede in June 1215, after the

rebels occupied London

Magna Charta contains sixty-three chapters

Many of the chapters defined the king’s feudal

rights over his vassals, preventing the king from

arbitrarily collecting revenue from the barons

Chapter 39 established the right to due process of

law, and in chapter 40 the king promised that he

would not sell, deny, or delay justice to anyone

Magna Charta did not resolve the disputebetween the barons and King John Within

months they were fighting again In August 1215

the charter was annulled by Pope Innocent III,

John’s feudal overlord, on the grounds that it

had been executed under duress In 1216, ever, after John’s death the charter was reissuedwith some modifications At the conclusion ofthe civil war in 1217, it was reissued again withminor revisions This version of Magna Chartabecame part of the English constitutional tradi-tion; confirmed by later kings and interpreted byParliament, it is still revered as a symbol ofEnglish liberties

how-k

Magna Charta

John, by the grace of God, king of England, lord

of Ireland, duke of Normandy and Aquitaine,count of Anjou, to all his archbishops, bishops,abbots, earls, barons, justiciars, foresters, sher-iffs, stewards, servants, and all bailiffs and faith-ful men, health Know that we by looking toGod, and for the health of our soul, and of allour ancestors and heirs, to the honor of God,and the exaltation of his holy Church, and therectifying of our realm by the counsel of ourvenerable fathers, Stephen, archbishop ofCanterbury, primate of all England and cardinal

of the holy Roman Church; Henry, archbishop

of Dublin; William of London, Peter ofWinchester, Joscelin of Bath and Glastonbury,Hugh of Lincoln, Walter of Worcester, William

of Coventry and Benedict of Rochester, bishops;

Master Pandulf, subdeacon of our lord pope andservant; brother Eymeric, master of the knights

of the Temple in England; and of nobles,William Marshall, Earl of Pembroke; William,Earl of Salisbury; William, Earl Warrenne;

E NGLISH L AW

Magna Charta

4 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

William, Earl of Arundel; Alan of Galway, stable of Scotland; Warin, son of Gerold; Peter,son of Herbert; Hubert de Burg, seneschal ofPoitou; Hugh de Neville; Matthew, son ofHerbert; Thomas Basset; Alan Basset; Philip deAlbini; Robert de Ropley; John Marshall; John,son of Hugh; and others our lieges

con-CHAPTER 1

First, we grant to God, and by this our ent charter we confirm, for us and our heirs for-ever, that the English church be free, and have its

pres-rights whole and its liberties unimpaired; and so

we will to be observed, which appears from the fact that we have of pure and free will, before difference arose between us and our barons, granted, and by our charter confirmed, freedom of elections, which

is conceived greatest and most necessary for the English church, and have got it confirmed from our lord Pope Innocent III, which we will observe ourselves and will to be observed in good faith by our heirs forever.1 We have granted to all freemen of our realm, for ourself and our heirs for-ever, all these underwritten liberties to have and

to hold, for themselves and their heirs, from usand our heirs

CHAPTER 2

If any of our earls or barons, or other tenant

of us in chief by military service, die, and when

he dies, his heir be of full age, and owe a relief,

he shall have his inheritance by the old relief, towit, the heir, or heirs of an earl, for the wholebarony of an earl by P100; the heir or heirs of abaron, the whole barony by P100; the heir or

heirs of a knight for a whole military fee by 100s.

at most, and he who owes less should pay lessaccording to the ancient custom of fees

CHAPTER 3

If the heir of any of these be below age, and

be in wardship, when he comes to full age heshall have his inheritance without relief or fine

CHAPTER 4

The guardians of the land of any heir, who isbelow age, shall not take from the land of theheir more than reasonable exits [revenues], andreasonable customs, and reasonable services,and this without destruction and waste of men

or property; and if we commit the wardship ofany such land to the sheriff or any one else, who

is to answer to us for the exits, and he madedestruction or waste of his wardship, we will

take recompense of him, and the land shall becommitted to two lawful and discreet men ofthat fee, who will answer to us of the exits, or tohim to whom we have assigned them; and if wehave given or sold to any one the wardship ofany such land, and he does destruction or waste,

he shall lose his wardship, and give it to two ful and discreet men of that fee, who shall in likemanner answer to us as is aforesaid

law-CHAPTER 5

The guardian, as long as he have wardship ofthe land, shall keep up houses, parks, stews,pools, mills, and other things belonging to thatland, from the exits of the same land, and restore

to the heir, when he comes to full age, all thatland stocked with teams, according to what theseason of teams demands, and the exits of theland can reasonably sustain.2

CHAPTER 6

Heirs shall be married without

disparage-ment, so that before they contract matrimony it be

communicated to the kinsmen in blood of the heir.

CHAPTER 7

A widow after the death of her husband shall

at once and without hindrance have her riage and inheritance, nor give anything for herdower, or for her marriage, or for her inheri-tance, which inheritance she and her husbandhad on the day of her husband’s death, and sheshall remain in her husband’s home for fortydays after his death, within which her dowershall be assigned to her.3

2 A clause added in 1216 stipulated that the chapter also applied to ecclesiastical properties except that those ward- ships should not be sold.

3 In 1217 a clause was added that guaranteed a widow third of her husband’s lands unless a smaller dower had been assigned at the time of the marriage In 1225 chapters 7 and

one-8 were combined into one.

give security that she will not marry without our

assent, if she hold from us, or without the assent

of the lord from whom she holds, if she holds

from another

CHAPTER 9

Neither we nor our bailiffs will seize anyland or rent for any debt, as long as the chattels

of the debtor suffice for paying the debt, nor

shall the sureties of the debtor be distrained, as

long as that debtor in chief suffices for the

pay-ment of the debt, and if the debtor in chief fail

in paying the debt, not having whence to pay, the

sureties shall answer for the debt, and if they

will, shall have the land and rents of the debtor

till they are satisfied of the debt which they paid

for him, unless the debtor in chief show that he

is quit thence against these sureties

CHAPTER 10

If anyone borrows anything from the Jews, more or less, and dies before the debt is paid, the

debt shall not bear usury as long as the heir is

under age, from whoever he holds it, and if that

debt fall into our hands we will take only the

chat-tel contained in the deed.

CHAPTER 11

And if anyone die and owes a debt to the Jews, his wife shall have her dower and pay nothing of

that debt, and if the children of the dead man are

under age, necessaries shall be provided for them

according to the holding of the dead man, and the

debt shall be paid from the residue, the service of

the lords saved, and in the same way shall it be

done with debts which are owed to other than Jews.

CHAPTER 12

No scutage or aid shall be laid on our realm except by the common counsel of our realm, unless

for ransoming our person, and making our eldest

son a knight, and marrying our eldest daughter

once, and this must only be a reasonable aid, and

so shall it be with the aids of the city of London.

CHAPTER 13

And the city of London shall have all its

ancient liberties and its free customs, both by

land and by water Besides we will and grant that

all other cities, and burghs [boroughs], and vills

[towns], and ports shall have all their liberties

and free customs

CHAPTER 14

And to have a common counsel of our realm

on assessing an aid other than in the three named cases, or assessing a scutage, we will cause

afore-to be summoned archbishops, bishops, abbots, earls, and greater barons, singly by our letters, and

we will also cause to be summoned in general, by our sheriffs and bailiffs, all those who hold of us in chief, at a certain day, to wit, at least forty days after, and a certain place; and in all letters of sum- mons we will express the cause of summons, and when summons is made the business assigned for the day shall proceed according to the council of those who are present, though not all who are summoned come.

CHAPTER 19

And if the aforesaid assises of the countycannot be taken on that day, so many knightsand free tenants shall remain of those who were

at the county on that day, by whom judgments

in the same manner, saving his merchandise,and the villein shall be amerced in the samemanner, saving his tools of husbandry, if theyfall into our mercy, and none of the aforenamedmercies shall be imposed except by the oath ofreputable men of the vicinage.

No cleric shall be amerced of his lay

tene-ment, except according to the measure of the

other aforesaid, and not according to the size ofhis ecclesiastical benefice.5

CHAPTER 23

No vill or man shall be distrained to makebridges at rivers, unless he who of old, or byright, is bound to do so

rid-CHAPTER 26

If anyone holding a lay fee [fief] of us dies,and the sheriff or our bailiff shows our letterspatent of the summonses of a debt which thedead man owed us, it shall be lawful for oursheriff or bailiff to attach and enroll the chattels

of the dead man found in this fee to the value ofthe debt by the view of lawful men, so that noth-ing be moved thence till our debt which is clear

be paid us, and the residue shall be left to theexecutors to fulfill the testament of the deceased,and if nothing be owed us by the deceased, allhis chattels shall go to the deceased, save the rea-sonable shares to his wife and children

CHAPTER 27

If any free man die intestate, his chattels shall

be distributed by his nearest relations and friends,

by the view of the church, save the debts due to each which the deceased owed.

CHAPTER 28

No constable, or other bailiff of ours, shalltake the corn or chattels of anyone, unless heforthwith pays money for them, or can have anyrespite by the good will of the seller.6

CHAPTER 29

No constable shall distrain any knight to givemoney for the wardship of a castle [militaryservice in the garrison of a castle], if he be will-ing to perform that wardship in his own person,

or by some other reputable man, if he cannot do

it himself for some reasonable cause, and if wehave led or sent him to an army, he shall be quit

of the wardship, according to the length of timethat he is with us in the army

CHAPTER 30

No sheriff or bailiff of ours, or any other,shall take horses and carts of any free man forcarrying, except by the will of the free man.7

7 In 1216 the chapter was modified to say that the horses and carts should not be taken unless the owner received a speci- fied amount of money In 1217 a chapter was inserted that prohibited bailiffs from taking carts from the demesne of a cleric, a knight, or a lady In 1225 chapters 30 and 31 from the Charter of 1215 and the new chapter were combined into

a single chapter.

CHAPTER 33

All kidells [fish-weirs] shall for the future bewholly taken away from the Thames and the

Medway, and through all England, except at the

coast of the sea

CHAPTER 34

The writ which is called praecipe for the

future shall not issue to anyone about any

tene-ment from which a free man may lose his court

CHAPTER 35

There shall be one measure of wine out our whole realm, and one measure of beer,

through-and one measure of corn, to wit, the London

quarter, and one breadth of dyed cloth, and

rus-set and haberget cloth, to wit, two ells within the

lists, and of weights it shall be as of measures

military service, we shall not have the wardship

of the heir or his land which belongs to

anoth-er’s fee, because of that fee-farm, or socage or

burgage, nor shall we have wardship of that

fee-farm, or socage or burgage, unless the fee-farm

itself owes military service We shall not either

have wardship of heir or any land, which he

holds of another by military service, by reason of

some petty serjeanty which he holds of us, by the

service of paying us knives, or arrows, or the like

CHAPTER 38

No bailiff in future shall put anyone to law

by his mere word, without trustworthy

witness-es brought forward for it

CHAPTER 39

No free man shall be seized, or imprisoned,

or disseised, or outlawed, or exiled, or injured in

any way, nor will we enter on him or send

against him except by the lawful judgment of his

peers, or by the law of the land.8

at war against us, and if such shall be found inour land, at the beginning of war, they shall beattached without loss of person or property, until

it be known by us or our chief justiciar how themerchants of our land are treated who are foundthen in the land at war with us; and if ours besafe there, others shall be safe here.9

CHAPTER 42

It shall be lawful for anyone hereafter to go out

of our realm, and return, safe and sound, by land

or by water, saving fealty to us, except in time of war for some short time, for the common weal of the realm, except imprisoned men, and outlaws according to the law of the realm, and as natives of

a land at war against us, and to the merchants of whom is done as is aforesaid.

CHAPTER 43

If any person holds of any escheat, as of thehonor of Wallingford, Nottingham, Boulogne,Lancaster, or of other escheats which are in ourhands, and they are baronies, and he dies, hisheir shall not pay any other relief, or do us anyother service but that which he would do for thebaron, if the barony were in the hand of a baron,and we similarly will hold him in the same waythat the baron held him.10

CHAPTER 44

Men who dwell without the forest shall not come hereafter before our justices of the forest, by common summonses, unless they are in plea, or sureties of one or more, who are attached for the forest.11

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8 In 1217 the words “of his freehold liberties or free customs”

were inserted after “disseised.” In 1225 the words “in the future” were inserted after “No free man shall,” and the chap- ter and the one following it were joined together.

9 In 1216 the words “unless formerly they have been publicly prohibited” were inserted after “All merchants.”

10 In 1217 a sentence added at the end of the chapter lated that the king would not have an escheat or wardship by reason of such an escheat or barony unless the person who held the property was a tenant-in-chief for other property.

stipu-11 Chapter 44 of the Charter of 1215 was retained in the Charter of 1216, but in 1217 it was transferred to the separate Charter of the Forest In 1217 a new chapter was inserted at

8 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

CHAPTER 45

We will not make justices, constables, sheriffs,

or bailiffs except from those who know the law of the realm, and are willing to keep it.

CHAPTER 46

All barons who have founded abbeys,whence they have charters of the kings ofEngland, or ancient tenure, shall have their cus-tody while vacant, as they ought to have it

CHAPTER 47

All forests which have been afforested in our time shall be forthwith deforested, and so with the rivers which have been forbidden by us in our time.12

CHAPTER 48

All ill customs of forests and warrens, and foresters and warreners, sheriffs and their ser- vants, rivers and their keepers, shall be forthwith inquired into in each county by twelve sworn knights of the same county, who should be chosen

by the reputable men of the same county; and, within forty days after the inquest is over, they shall be wholly done away by them, never to be recalled, so we know this first, or our justiciar, if

we are not in England.

de Cigogné, Andrew, Peter, and Guy de Chanceux, Geoffrey de Martigny and his brothers, Philip Mark and his brothers, and Geoffrey his nephew, and all their following.

CHAPTER 51

And immediately after the restoration of peace, we will remove from the realm all foreign knights, bowmen, officers, and mercenaries who came with horses and arms to the harm of the realm.

CHAPTER 52

If anyone has been disseised or deprived by us without lawful judgment of his peers, from lands, castles, liberties, or his right, we will forthwith restore him; and if a dispute arise about this, judg- ment shall then be made by twenty-five barons, of whom mention is made below, for the security of peace, and of all those matters of which a man has been disseised or deprived without the lawful judgment of his peers, by King Henry our father, or

by King Richard our brother, which lands we have

in our hands, or which others have, which we ought to warrant, we will have respite up to the common term of the crusaders, those being except-

ed of which the plea was raised or inquisition was made by our order, before the taking of our cross, and when we return from our journey, or if we chance to remain from our journey, we will forth- with show full justice thence.

CHAPTER 53

We will have the same respite, and in the same way, about exhibiting justice of deforesting or maintaining the forests, which Henry our father,

or Richard our brother afforested, and of the ship of the lands which are of another’s fee, of which thing we have hitherto had the wardship, by reason of the fee, because someone held of us by military service, and of the abbeys which were founded on the fee of another than our own, in which the lord of the fee says he has the right; and when we return, or if we stay from our journey, we will afford full justice to those who complain of these things.

ward-CHAPTER 54

No one shall be seized or imprisoned for theappeal of a woman about the death of any otherman but her husband

CHAPTER 55

All fines which have been made unjustly and against the law of the land with us, and all amercements made unjustly and against the law of the land, shall be wholly excused, or it shall be done with them by the judgment of twenty-five barons, of whom mention will be made below on the security of the peace, or by the judgment of the greater part of them, along with the aforenamed Stephen, archbishop of Canterbury, if he can be present, and others whom he wills to summon to him, and if he be unable to be present, nevertheless the business shall go on without him, so that if one

or more of the aforenamed twenty-five barons are

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this point that stipulated that no free man should give or sell

so much of his land that he would be prevented from doing the full service due from the fief.

12 In 1217 the first clause was transferred to the Charter of the Forest; the second clause became a separate chapter.

in a like suit, they may be removed as far as this

judgment is concerned, and others be appointed,

elected, and sworn for this matter only, by the

residue of the same twenty-five.

CHAPTER 56

If we have disseised or deprived the Welsh of their lands or liberties or other goods, without law-

ful judgment of their peers, in England or in

Wales, let these things be forthwith restored, and if

a dispute arise upon this, let it be thereafter settled

in the march by the judgment of their peers; on

tenements in England according to the law of

England; on tenements in Wales according to the

law of Wales; on tenements in the march according

to the law of the march The Welshmen shall do

the same to us and ours.13

CHAPTER 57

In all these matters in which anyone of the Welsh was disseised or deprived without lawful

judgment of his peers, by King Henry our father, or

King Richard our brother, which we have in our

hands, or which others hold, and which we ought

to warrant, we will have respite to the common

term of the crusaders, those excepted in which our

plea has been raised, or inquisition has been made

by our order, before we took the cross; but, when we

return, or if by chance we wait from our journey,

we will show full justice to them thence, according

to the laws of Wales, and the aforesaid parties.

erties, and his right, according to the form in

which we have dealt with our other barons of

England, unless they are bound to other matters by

the charters which we have of William his father,

once king of the Scots, and this shall be by

judg-ment of their peers in our court.

CHAPTER 61

But since, for the sake of God and for the tering of our realm, and for better quieting the dis- cord which has arisen between us and our barons,

bet-we have ganted all the aforesaid, wishing to enjoy them in pure and firm security forever, we make and grant them the underwritten security: viz.

that the barons choose twenty-five barons from the realm, whom they will, who should with all their power keep, hold, and cause to be kept, the peace and liberties which we grant them, and by this our present charter confirm, so that, if we, or our jus- ticiar, or our bailiffs, or any of our servants, do wrong in any case to anyone, or we transgress any

of the articles of peace and security, and the offense

is shown to four out of the aforenamed twenty-five barons, those four barons shall come to us, or our justiciar, if we are out of the realm, to show the wrong; they shall seek that we cause that wrong to

be rectified without delay And if we do not rectify the wrong, or if we are without the realm, our jus- ticiar does not rectify it within forty days from the time in which it was shown to us or our justiciar,

if we are without the realm, the aforesaid four barons shall bring the case before the rest of the twenty-five barons, and those twenty-five barons, with the commonalty of the whole realm, shall dis- train and distress us, in every way they can, to wit,

by the capture of castles, lands, possessions, and other ways in which they can, till right is done according to their will, saving our person and that

of our queen and our children; and, when right is done, they shall obey us as before And whoever of the land wishes, may swear that he will obey the orders of the aforesaid twenty-five barons, in car- rying out all the aforesaid, and that he will distress

us as far as he can, with them, and we give licly and freely license to all to swear who wills, and we will forbid no one to swear But all those in the land who will not, by themselves and of their own accord, swear to the twenty-five barons about distraining and distressing us with them, we will cause them to swear by our orders, as is aforesaid.

pub-And if any one of the twenty-five barons dies, or quits the country, or in any way is hindered from being able to carry out the aforesaid, the remain- der of the aforesaid twenty-five barons may choose another into his place, at their discretion, who shall be sworn in like manner with the rest In all those matters which are committed to the barons

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13 Chapter 56 was retained in the Charter of 1216 but was

omitted thereafter.

1 0 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

to carry out, if these twenty-five happen to be ent and differ on any one point, or others sum- moned by them will not or cannot be present, that must be had settled and fixed which the majority

pres-of those who are present provides or decides, just as

if all the twenty-five agreed on it, and the said twenty-five shall swear that they will faithful-

afore-ly keep all the aforesaid, and cause them to be kept with all their power And we will ask nothing from anyone, by ourselves or any other, by which any one of these grants and liberties shall be revoked or lessened; and if we do obtain any such thing, it shall be vain and void, and we will never use it by ourselves or by another.

CHAPTER 62

And all ill will, wrath, and rancor, which has arisen between us and our men, clerics and lay- men, from the time of the discord, we fully have remitted and condoned to all Besides, all the offenses done by reason of the same discord, from Easter in the sixteenth year of our reign to the renewal of peace, we wholly remit to all, clerics and laymen, and as far as we are concerned fully have condoned And, moreover, we have caused letters patent to be made to them, in witness of this, of lord Stephen, archbishop of Canterbury, of lord Henry, archbishop of Dublin, and of the

aforesaid bishops, and of Master Pandulf, as the aforenamed security and grants.

CHAPTER 63

Wherefore we will and firmly order that the English church should be free, and that the men of our realm should have and hold all the afore- named liberties, rights, and grants, well and in peace, freely and quietly, fully and completely, for them and their heirs, from us and our heirs, in all things and places, forever, as is aforesaid It is sworn both by us, and on the part of the barons, that all these aforesaid shall be kept in good faith and without ill meaning Witnesses, the above- named and many others Given by our hand, in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June,

in the seventeenth year of our reign.14

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14 Several chapters were added in 1217 that regulated the iff ’s tourn (tour through the hundreds, or subdivisions, of a county to hold court) and view of frankpledge; made it illegal for anyone to give land to a religious house and receive it back

sher-to hold as a tenant; established that scutage should be taken as

it had been during the reign of King Henry II (1154–1189); and decreed that all adulterine castles (castles built without the king’s permission) that had been erected since the begin- ning of the war between John and the barons should be destroyed All but the last chapter were retained in 1225.

The English Bill of Rights grew out of theGlorious Revolution of 1688 During the

revolution King James II abdicated and fled from

England He was succeeded by his daughter,

Mary, and her husband, William of Orange, a

Dutch prince Parliament proposed a Declaration

of Rights and presented it to William and Mary

on February 13, 1689 Only after they accepted

the declaration did Parliament proclaim them

king and queen of England Parliament then

added several clauses to the declaration and

for-mally enacted the amended bill as the Bill of

Rights on December 16, 1689

The Bill of Rights combined past grievancesagainst the deposed king with a more general

statement of basic liberties The statute

prohibit-ed the monarch from suspending laws or levying

taxes or customs duties without Parliament’s

con-sent and prohibited the raising and maintaining

of a standing army during peacetime More

importantly, it proclaimed fundamental liberties,

including freedom of elections, freedom of

debate in Parliament, and freedom from excessive

bail and from cruel and unusual punishments To

prevent a recurrence of the religious divisions

that beset the Catholic James in ruling a largely

Protestant England, the Bill of Rights also barred

Roman Catholics from the throne

The Bill of Rights became one of the stones of the unwritten English constitution The

corner-Bill of Rights has also had a significant impact on

U.S law, with many of its provisions becoming

part of the U.S Constitution and Bill of Rights

k

English Bill of Rights

Whereas the Lords Spiritual and Temporal andCommons assembled at Westminster, lawfully,fully, and freely representing all the states ofpeople of this realm, did upon the thirteenth day

of February in the year of our Lord one sand six hundred eighty-eight present unto theirMajesties, then called and known by the namesand style of William and Mary, prince andprincess of Orange, being present in their prop-

thou-er pthou-ersons, a cthou-ertain declaration in writing made

by the said Lords and Commons in the wordsfollowing, viz:1

Whereas the late King James the Second, bythe assistance of divers evil councilors, judges,and ministers employed by him, did endeavor tosubvert and extirpate the Protestant religion andthe laws and liberties of the kingdom;

By assuming and exercising a power of pensing with and suspending of laws and theexecution of laws without consent of Parliament;

dis-By committing and prosecuting divers thy prelates for humbly petitioning to be excusedfrom concurring to the said assumed power;

wor-By issuing and causing to be executed a commission under the great seal for erecting a

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English Bill of Rights

An Act Declaring the Rights and Liberties of the Subject

and Settling the Succession of the Crown

Source: Selections from The Second Treatise on Government, 5 J Locke, WORKS (1823) The footnotes have

been renumbered.

1 English monarchs styled themselves king or queen of France between 1340 and 1801 The custom began when the English became embroiled in the Hundred Years War with France and King Edward III of England, whose mother was

a French princess, claimed the French throne.

by Parliament;

By raising and keeping a standing armywithin this kingdom in time of peace withoutconsent of Parliament and quartering soldierscontrary to law;

By causing several good subjects beingProtestants to be disarmed at the same timewhen papists were both armed and employedcontrary to law;

By violating the freedom of election ofmembers to serve in Parliament;

By prosecutions in the Court of King’sBench for matters and causes cognizable only inParliament and by divers other arbitrary andillegal courses;

And whereas of late years, partial, corrupt,and unqualified persons have been returned andserved on juries in trials, and particularly diversjurors in trials for high treason which were notfreeholders;

And excessive bail hath been required of sons committed in criminal cases to elude thebenefit of the laws made for the liberty of thesubjects;

per-And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made offines and forfeitures before any conviction orjudgment against the persons upon whom thesame were to be levied;

All which are utterly and directly contrary tothe known laws and statutes and freedom of thisrealm

And whereas the said late King James theSecond having abdicated the government, andthe throne being thereby vacant, his Highnessthe prince of Orange (whom it hath pleasedAlmighty God to make the glorious instrument

of delivering this kingdom from popery andarbitrary power) did, by the advice of the LordsSpiritual and Temporal and divers principal per-sons of the Commons, cause letters to be written

to the Lords Spiritual and Temporal beingProtestants and other letters to the several coun-ties, cities, universities, boroughs, and cinqueports for the choosing of such persons to repre-

sent them as were of right to be sent toParliament, to meet and sit at Westminster uponthe two-and-twentieth day of January in thisyear one thousand six hundred eighty and eight,

in order to such an establishment as that theirreligion, laws, and liberties might not again be indanger of being subverted; upon which letters,elections have been accordingly made

And thereupon the said Lords Spiritual andTemporal and Commons, pursuant to theirrespective letters and elections being nowassembled in a full and free representative of thisnation, taking into their most serious considera-tion the best means for attaining the ends afore-said, do in the first place (as their ancestors inlike case have usually done) for the vindicatingand asserting their ancient rights and liberties,declare

That the pretended power of suspending oflaws or the execution of laws by regal authoritywithout consent of Parliament is illegal;That the pretended power of dispensingwith laws or the execution of laws by regalauthority, as it hath been assumed and exercised

of late, is illegal;

That the commission for erecting the lateCourt of Commissioners for EcclesiasticalCauses, and all other commissions and courts oflike nature, are illegal and pernicious;

That levying money for or to the use of theCrown by pretence of prerogative without grant

of Parliament, for longer time or in other ner than the same is or shall be granted, is illegal;That it is the right of the subjects to petitionthe king, and all commitments and prosecutionsfor such petitioning are illegal;

man-That the raising or keeping a standing armywithin the kingdom in time of peace, unless it bewith consent of Parliament, is against law;That the subjects which are Protestants mayhave arms for their defense suitable to their con-ditions and as allowed by law;

That election of members of Parliamentought to be free;

That the freedom of speech and debates orproceedings in Parliament ought not to beimpeached or questioned in any court or placeout of Parliament;

That excessive bail ought not to be required,nor excessive fines imposed, or cruel and unusu-

al punishments inflicted;

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That jurors ought to be duly impaneled andreturned, and jurors which pass upon men in

trials for high treason ought to be freeholders;

That all grants and promises of fines andforfeitures of particular persons before convic-

tion are illegal and void;

And that, for redress of all grievances and forthe amending, strengthening, and preserving of

the laws, Parliaments ought to be held frequently

And they do claim, demand, and insist uponall and singular the premises as their undoubted

rights and liberties, and no declarations,

judg-ments, doings, or proceedings to the prejudice of

the people in any of the said premises ought in

any wise to be drawn hereafter into consequence

or example To which demand of their rights,

they are particularly encouraged by the

declara-tion of his Highness the prince of Orange, as

being the only means for obtaining a full redress

and remedy therein Having therefore an entire

confidence that his said Highness the prince of

Orange will perfect the deliverance so far

advanced by him and will still preserve them

from the violation of their rights which they

have here asserted and from all other attempts

upon their religion, rights, and liberties, the said

Lords Spiritual and Temporal and Commons

assembled at Westminster do resolve that

William and Mary, prince and princess of

Orange, be and be declared king and queen of

England, France, and Ireland and the dominions

thereunto belonging,2 to hold the Crown and

royal dignity of the said kingdom and

domin-ions to them, the said prince and princess,

dur-ing their lives and the life of the survivor of

them; and that the sole and full exercise of the

regal power be only in and executed by the said

prince of Orange in the names of the said prince

and princess during their joint lives, and after

their deceases the said Crown and royal dignity

of the said kingdoms and dominions to be to the

heirs of the body of the said princess, and for

default of such issue to the Princess Anne of

Denmark and the heirs of her body, and for

default of such issue to the heirs of the body of

the said prince of Orange And the Lords

Spiritual and Temporal and Commons do pray

the said prince and princess to accept the same

accordingly; and that the oaths hereafter

men-tioned be taken by all persons of whom the oaths

of allegiance and supremacy might be required

by law, instead of them; and that the said oaths

of allegiance and supremacy be abrogated:

I, A B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary So help me God.

I, A B., do swear that I do from my heart abhor, detest, and abjure as impious and heretical this damnable doctrine and posi- tion, that princes excommunicated or deprived by the pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever And I

do declare that no foreign prince, person, prelate, state, or potentate hath or ought to have any jurisdiction, power, superiority, pre- eminence, or authority, ecclesiastical or spiri- tual, within this realm So help me God.

Upon which their said Majesties did acceptthe Crown and royal dignity of the kingdoms ofEngland, France, and Ireland and the dominionsthereunto belonging, according to the resolutionand desire of the said Lords and Commons con-tained in the said declaration And thereupontheir Majesties were pleased that the said LordsSpiritual and Temporal and Commons, being thetwo Houses of Parliament, should continue to sitand, with their Majesties’ royal concurrence,make effectual provision for the settlement of thereligion, laws, and liberties of this kingdom, sothat the same for the future might not be in dan-ger again of being subverted To which the saidLords Spiritual and Temporal and Commons didagree and proceed to act accordingly

Now in pursuance of the premises, the saidLords Spiritual and Temporal and Commons inParliament assembled, for the ratifying, con-firming, and establishing the said declarationand the articles, clauses, matters, and thingstherein contained by the force of a law made indue form by authority of Parliament, do praythat it may be declared and enacted that all andsingular the rights and liberties asserted andclaimed in the said declaration are the trueancient and indubitable rights and liberties ofthe people of this kingdom and so shall beesteemed, allowed, adjudged, deemed, and taken

to be; and that all and every the particularsaforesaid shall be firmly and strictly holden andobserved as they are expressed in the said decla-ration; and all officers and ministers whatsoevershall serve their Majesties and their successorsaccording to the same in all times to come Andthe said Lords Spiritual and Temporal andCommons, seriously considering how it hathpleased Almighty God in his marvelous provi-dence and merciful goodness to this nation to

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1 4 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

provide and preserve their said Majesties’ royalpersons most happily to reign over us upon thethrone of their ancestors, for which they renderunto him from the bottom of their hearts theirhumblest thanks and praises, do truly, firmly,assuredly, and in the sincerity of their heartsthink, and do hereby recognize, acknowledge,and declare that King James the Second havingabdicated the government and their Majestieshaving accepted the Crown and royal dignity asaforesaid, their said Majesties did become, were,are, and of right ought to be by the laws of thisrealm our sovereign liege lord and lady, king andqueen of England, France, and Ireland and thedominions thereunto belonging; in and towhose princely persons, the royal state, Crown,and dignity of the said realms with all honors,styles, titles, regalities, prerogatives, powers,jurisdictions, and authorities to the samebelonging and appertaining are most fully,rightfully, and entirely invested and incorporat-

ed, united and annexed

And for preventing all questions and sions in this realm by reason of any pretendedtitles to the Crown, and for preserving a certain-

divi-ty in the succession thereof, in and upon whichthe unity, peace, tranquility, and safety of thisnation doth under God wholly consist anddepend, the said Lords Spiritual and Temporaland Commons do beseech their Majesties that itmay be enacted, established, and declared thatthe Crown and regal government of the saidkingdoms and dominions, with all and singularthe premises thereunto belonging and apper-taining, shall be and continue to their saidMajesties and the survivor of them during theirlives and the life of the survivor of them; andthat the entire, perfect, and full exercise of theregal power and government be only in and exe-cuted by his Majesty in the names of both theirMajesties during their joint lives; and after thedeceases, the said Crown and premises shall beand remain to the heirs of the body of herMajesty and, for default of such issue, to herRoyal Highness the Princess Anne of Denmarkand the heirs of her body and, for default of suchissue, to the heirs of the body of his said Majesty

And thereunto the said Lords Spiritual andTemporal and Commons do in the name of allthe people aforesaid most humbly and faithfullysubmit themselves, their heirs, and posteritiesforever and do faithfully promise that they willstand to maintain and defend their saidMajesties and also the limitation and succession

of the Crown, herein specified and contained, tothe utmost of their powers with their lives andestates against all persons whatsoever that shallattempt any thing to the contrary

And whereas it hath been found by ence that it is inconsistent with the safety andwelfare of this Protestant kingdom to be gov-erned by a popish prince, or by any king orqueen marrying a papist, the said LordsSpiritual and Temporal and Commons do fur-ther pray that it may be enacted that all andevery person and persons that is, are, or shall bereconciled to, or shall hold communion with,the see or church of Rome, or shall profess thepopish religion or shall marry a papist, shall beexcluded and be forever incapable to inherit,possess, or enjoy the Crown and government ofthis realm and Ireland and the dominions there-unto belonging or any part of the same, or tohave, use, or exercise any regal power, authority,

experi-or jurisdiction within the same And in all andevery such case or cases, the people of theserealms shall be and are hereby absolved of theirallegiance And the said Crown and governmentshall from time to time descend to and beenjoyed by such person or persons beingProtestants, as should have inherited andenjoyed the same in case the said person or per-sons so reconciled, holding communion, or pro-fessing or marrying as aforesaid were naturallydead And that every king and queen of thisrealm, who at any time hereafter shall come toand succeed in the imperial Crown of this king-dom, shall on the first day of the meeting of thefirst Parliament next after his or her coming tothe Crown, sitting in his or her throne in theHouse of Peers, in the presence of the Lords andCommons therein assembled, or at his or hercoronation before such person or persons whoshall administer the coronation oath to him orher at the time of his or her taking the said oath(which shall first happen), make, subscribe, andaudibly repeat the declaration mentioned in thestatute made in the thirtieth year of the reign of

King Charles the Second entitled An act for the

more effectual preserving the king’s person and government by disabling papists from sitting in either House of Parliament But if it shall happen

that such a king or queen upon his or her cession to the Crown of this realm shall be underthe age of twelve years, then every such king orqueen shall make, subscribe, and audibly repeatthe said declaration at his or her coronation, orthe first day of the meeting of the first

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Parliament as aforesaid which shall first happen

after such king or queen shall have attained the

said age of twelve years All which their Majesties

are contented and pleased shall be declared,

enacted, and established by authority of this

present Parliament and shall stand, remain, and

be the law of this realm forever And the same

are by their said Majesties, by and with the

advice and consent of the Lords Spiritual and

Temporal and Commons in Parliament

assem-bled and by the authority of the same, declared,

enacted, and established accordingly

And be it further declared and enacted bythe authority aforesaid that, from and after this

present session of Parliament, no dispensation

by non obstante of or to any statute, or any part

thereof, shall be allowed but that the same shall

be held void and of no effect, except a tion be allowed of in such statutes, and except insuch cases as shall be specially provided for byone or more bill or bills to be passed during thispresent session of Parliament

dispensa-Provided that no charter or grant or pardongranted before the three-and-twentieth day ofOctober in the year of our Lord one thousandsix hundred eighty-nine shall be anywayimpeached or invalidated by this act, but thatthe same shall be and remain of the same forceand effect in law and no other than as if this acthad never been made

ENGLISH LAW

ENGLISH BILL OF

RIGHTS

ENGLISH LAW

Second Treatise on

Government

John Locke, 1690

The Englishman one of the world’s most important politicalJOHN LOCKE is regarded as

philosophers, and his “Second Treatise onGovernment” has proved to be one of the semi-nal documents on the liberal political state TheU.S system of government was built on Locke’sideas, including such core premises as the ulti-mate sovereignty of the people, the necessity ofrestraints on the exercise of arbitrary power bythe executive or the legislature, and the revoca-bility of the social contract by the people whenpower has been arbitrarily used against them

The Declaration of Independence and the U.S

Constitution are testaments to many of Locke’score ideas

The “Second Treatise” (the second part of

Two Treatises on Government) was written

dur-ing the period preceddur-ing the abdication of Kdur-ingJames II Locke’s work, which was published in

1690, became a justification for the GloriousRevolution of 1688, when government wasreformed along the lines outlined by Locke in

his Two Treatises As a result of these reforms,

England became a constitutional monarchyunder Parliament’s control Greater measures ofreligious toleration and freedom of expressionand thought were permitted, as set out in theEnglish Bill of Rights

In part, the Two Treatises were an attack

upon political absolutism The first treatiserefuted the theory of the divine right of kings,which posited that monarchs derived theirauthority from God The second treatise, how-ever, has had the more lasting impact on the

United States, for it sets out a theory of politicsthat found its way into U.S law

Locke maintained that people are naturallytolerant and reasonable, but that without a gov-erning force, a certain amount of chaos andother inconveniences will occur In his view allpeople are inherently equal and free to pursue

“life, liberty, health, and property.” To do this,they engage in a social contract in which theyconsent to give up a certain amount of power to

a government dedicated to maintaining thewell-being of the whole At the same time, how-ever, individuals’ right to freedom of thought,speech, and worship must be preserved In addi-tion, the government must preserve citizens’ pri-vate property

Locke believed that the government is thetrustee of the people’s power and that it exercis-

es power specifically for the purpose of servingthe people If the government abuses that trust,however, the people have a right to revoke thetrust and assume the reins of government them-selves or place them in new hands This ideaprovided justification for the AmericanRevolution in 1776

Thomas Jefferson drew upon Locke’s ideas

of the law of nature, popular sovereignty, andthe sanctity of the right of private property inwriting the Declaration of Independence TheU.S Constitution, with its separation of churchand state and its guarantee of personal free-doms, reflects Locke’s influence as well

k

FOUNDATIONS OF U.S LAW

Second Treatise on Government

CHAPTER VII

Of Political or Civil Society.

§ 77 God having made man such a creature,that in his own judgment it was not good for

him to be alone, put him under strong

obliga-tions of necessity, convenience, and inclination,

to drive him into society, as well as fitted him

with understanding and language to continue

and enjoy it The first society was between man

and wife, which gave beginning to that between

parents and children; to which, in time, that

between master and servant came to be added:

and though all these might, and commonly did

meet together, and make up but one family,

wherein the master or mistress of it had some

sort of rule proper to a family; each of these, or

all together, came short of political society, as we

shall see, if we consider the different ends, ties,

and bounds of each of these

* * *

§ 85 Master and servant are names as old ashistory, but given to those of far different condi-

tion; for a free-man makes himself a servant to

another, by selling him, for a certain time, the

service he undertakes to do, in exchange for

wages he is to receive: and though this

com-monly puts him into the family of his master,

and under the ordinary discipline thereof: yet it

gives the master but a temporary power over

him, and no greater than what is contained in

the contract between them But there is another

sort of servants, which by a peculiar name we

call slaves, who being captives taken in a just

war, are by the right of nature subjected to the

absolute dominion and arbitrary power of their

masters These men having, as I say, forfeited

their lives, and with it their liberties, and lost

their estates; and being in the state of slavery, not

capable of any property; cannot in that state be

considered as any part of civil society; the chief

end whereof is the preservation of property

§ 86 Let us therefore consider a master of afamily with all these subordinate relations of

wife, children, servants, and slaves, united under

the domestic rule of a family; which, what

resem-blance soever it may have in its order, offices, and

number too, with a little commonwealth, yet is

very far from it, both in its constitution, power,

and end: or if it must be thought a monarchy,

and the pater-familias the absolute monarch in

it, absolute monarchy will have but a very tered and short power, when it is plain, by whathas been said before, that the master of the fam-ily has a very distinct and differently limitedpower, both as to time and extent, over those sev-eral persons that are in it: for excepting the slave(and the family is as much a family, and hispower as pater-familias as great, whether there beany slaves in his family or no), he has no legisla-tive power of life and death over any of them,and none too but what a mistress of a family mayhave as well as he And he certainly can have noabsolute power over the whole family, who hasbut a very limited one over every individual in it

shat-But how a family, or any other society of men,differ from that which is properly political socie-

ty, we shall best see by considering wherein ical society itself consists

polit-§ 87 Man being born, as has been proved,with a title to perfect freedom, and uncontrolledenjoyment of all the rights and privileges of thelaw of nature, equally with any other man, ornumber of men in the world, hath by nature apower, not only to preserve his property, that is,his life, liberty, and estate, against the injuriesand attempts of other men; but to judge of andpunish the breaches of that law in others, as he ispersuaded the offence deserves, even with deathitself, in crimes where the heinousness of thefact, in his opinion, requires it But because nopolitical society can be, nor subsist, without hav-ing in itself the power to preserve the property,and, in order thereunto, punish the offences ofall those of that society; there, and there only ispolitical society, where every one of the mem-bers hath quitted this natural power, resigned it

up into the hands of the community in all casesthat exclude him not from appealing for protec-tion to the law established by it And thus all pri-vate judgment of every particular member beingexcluded, the community comes to be umpire,

by settled standing rules, indifferent, and thesame to all parties; and by men having authori-

ty from the community, for the execution ofthose rules, decides all the differences that mayhappen between any members of that societyconcerning any matter of right; and punishesthose offences which any member hath commit-ted against the society, with such penalties as thelaw has established: whereby it is easy to discernwho are, and who are not, in political societytogether Those who are united into one body,and have a common established law and judica-

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SECOND TREATISE ON GOVERNMENT

1 8 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

ture to appeal to, with authority to decide troversies between them, and punish offenders,are in civil society one with another: but thosewho have no such common appeal, I mean onearth, are still in the state of nature, each being,where there is no other, judge for himself, andexecutioner: which is, as I have before showed it,the perfect state of nature

con-§ 88 And thus the commonwealth comes by

a power to set down what punishment shallbelong to the several transgressions which theythink worthy of it, committed amongst themembers of that society, (which is the power ofmaking laws) as well as it has the power to pun-ish any injury done unto any of its members, byany one that is not of it, (which is the power ofwar and peace:) and all this for the preservation

of the property of all the members of that

socie-ty, as far as is possible But though every manwho has entered into civil society, and is become

a member of any commonwealth, has therebyquitted his power to punish offences against thelaw of nature, in prosecution of his own privatejudgment; yet with the judgment of offences,which he has given up to the legislative in allcases, where he can appeal to the magistrate, hehas given a right to the commonwealth toemploy his force, for the execution of the judg-ments of the commonwealth, whenever he shall

be called to it; which indeed are his own ments, they being made by himself, or his repre-sentative And herein we have the original of thelegislative and executive power of civil society,which is to judge by standing laws, how faroffences are to be punished, when committedwithin the commonwealth; and also to deter-mine, by occasional judgments founded on thepresent circumstances of the fact, how farinjuries from without are to be vindicated; and

judg-in both these to employ all the force of all themembers, when there shall be need

§ 89 Whenever therefore any number ofmen are so united into one society, as to quitevery one his executive power of the law ofnature, and to resign it to the public, there andthere only is a political or civil society And this

is done, wherever any number of men, in thestate of nature, enter into society to make onepeople, one body politic, under one supremegovernment; or else when any one joins himself

to, and incorporates with any governmentalready made: for hereby he authorizes the soci-ety, or, which is all one, the legislative thereof, to

make laws for him, as the public good of thesociety shall require; to the execution whereof,his own assistance (as to his own degrees) is due.And this puts men out of a state of nature intothat of a commonwealth, by setting up a judge

on earth, with authority to determine all thecontroversies, and redress the injuries that mayhappen to any member of the commonwealth;which judge is the legislative, or magistrateappointed by it And wherever there are anynumber of men, however associated, that have

no such decisive power to appeal to, there theyare still in the state of nature

§ 90 Hence it is evident, that absolutemonarchy, which by some men is counted theonly government in the world, is indeed incon-sistent with civil society, and so can be no form

of civil government at all: for the end of civilsociety being to avoid and remedy those incon-veniences of the state of nature which necessari-

ly follow from every man being judge in his owncase, by setting up a known authority, to whichevery one of that society may appeal upon anyinjury received, or controversy that may arise,and which every one of the society ought toobey;66wherever any persons are, who have notsuch an authority to appeal to, for the decision

of any difference between them, there those sons are still in the state of nature; and so isevery absolute prince, in respect of those whoare under his dominion

per-§ 91 For he being supposed to have all, bothlegislative and executive power in himself alone,there is no judge to be found, no appeal lies open

to any one, who may fairly, and indifferently, andwith authority decide, and from whose decisionrelief and redress may be expected of any injury

or inconveniency, that may be suffered from theprince, or by his order: so that such a man, how-ever entitled, czar, or grand seignior, or how youplease, is as much in the state of nature, with allunder his dominion, as he is with the rest of

con-God, doth enjoin the contrary” (Hooker’s Eccl Pol lib i sect.

16) [Ed note] In the Keble edition of Hooker’s Works, the appropriate citation for this passage would be Book I, chap- ter xvi, § 5.

mankind: for wherever any two men are, who

have no standing rule, and common judge to

appeal to on earth, for the determination of

con-troversies of right betwixt them, there they are

still in the state of nature67, and under all the

inconveniences of it, with only this woeful

dif-ference to the subject, or rather slave of an

absolute prince: that whereas in the ordinary

state of nature he has a liberty to judge of his

right, and, according to the best of his power, to

maintain it; now, whenever his property is

invaded by the will and order of his monarch, he

has not only no appeal, as those in society ought

to have, but, as if he were degraded from the

common state of rational creatures, is denied a

liberty to judge of, or to defend his right: and so

is exposed to all the misery and inconveniences,

that a man can fear from one, who being in the

unrestrained state of nature, is yet corrupted

with flattery, and armed with power

§ 92 For he that thinks absolute power fies men’s blood, and corrects the baseness of

puri-human nature, need read but the history of this,

or any other age, to be convinced of the

con-trary He that would have been insolent and

injurious in the woods of America, would not

probably be much better in a throne; where

per-haps learning and religion shall be found out to

justify all that he shall do to his subjects, and the

sword presently silence all those that dare

ques-tion it: for what the protecques-tion of absolute

monarchy is, what kind of fathers of their

coun-tries it makes princes to be, and to what a degree

of happiness and security it carries civil society,

where this sort of government is grown to

per-fection; he that will look into the late relation of

Ceylon may easily see

§ 93 In absolute monarchies indeed, as well

as other governments of the world, the subjects

have an appeal to the law, and judges to decide

any controversies, and restrain any violence that

may happen betwixt the subjects themselves,

one amongst another This every one thinks

nec-essary, and believes he deserves to be thought a

declared enemy to society and mankind who

should go about to take it away But whether this

be from a true love of mankind and society, and

such a charity as we all owe one to another, there

is reason to doubt: for this is no more than what

every man, who loves his own power, profit, orgreatness, may and naturally must do, keepthose animals from hurting or destroying oneanother, who labour and drudge only for hispleasure and advantage; and so are taken care of,not out of any love the master has for them, butlove of himself, and the profit they bring him:

for if it be asked, what security, what fence isthere, in such a state, against the violence andoppression of this absolute ruler? the very ques-tion can scarce be borne They are ready to tellyou, that it deserves death only to ask after safe-

ty Betwixt subject and subject, they will grant,there must be measures, laws, and judges, fortheir mutual peace and security: but as for theruler, he ought to be absolute, and is above allsuch circumstances; because he has power to domore hurt and wrong, it is right when he does it

To ask how you may be guarded from harm, orinjury, on that side where the strongest hand is

to do it, is presently the voice of faction andrebellion: as if when men quitting the state ofnature entered into society, they agreed that all

of them but one should be under the restraint oflaws, but that he should still retain all the liberty

of the state of nature, increased with power, andmade licentious by impunity This is to think,that men are so foolish, that they take care toavoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay think it safe-

ty, to be devoured by lions

§ 94 But whatever flatterers may talk toamuse people’s understandings, it hinders notmen from feeling; and when they perceive thatany man, in what station soever, is out of thebounds of the civil society which they are of, andthat they have no appeal on earth against anyharm they may receive from him, they are apt tothink themselves in the state of nature in respect

of him whom they find to be so; and to takecare, as soon as they can, to have that safety andsecurity in civil society for which it was institut-

ed, and for which only they entered into it Andtherefore, though perhaps at first (as shall beshowed more at large hereafter in the followingpart of this discourse), some one good andexcellent man having got a pre-eminencyamongst the rest, had this deference paid to hisgoodness and virtue, as to a kind of naturalauthority, that the chief rule, with arbitration oftheir differences, by a tacit consent devolved intohis hands, without any other caution but theassurance they had of his uprightness and wis-dom; yet when time, giving authority, and (as

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SECOND TREATISE ON GOVERNMENT

67 [Ed note] In a footnote, Locke here quotes a long passage

from Hooker, LAWS OF ECCLESIASTICAL POLITY, Bk I,

c x, § 4.

2 0 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

some men would persuade us) sacredness tocustoms, which the negligent and unforeseeinginnocence of the first ages began, had brought insuccessors of another stamp; the people findingtheir properties not secure under the govern-ment as then it was68(whereas government has

no other end but the preservation of property),could never be safe nor at rest, nor think them-selves in civil society, till the legislature wasplaced in collective bodies of men, call themsenate, parliament, or what you please By whichmeans every single person became subject,equally with other the meanest men, to thoselaws which he himself, as part of the legislative,had established; nor could any one, by his ownauthority, avoid the force of the law when oncemade; nor by any pretence of superiority pleadexemption, thereby to license his own, or themiscarriages of any of his dependents “No man

in civil society can be exempted from the laws ofit:”69for if any man may do what he thinks fit,and there be no appeal on earth, for redress orsecurity against any harm he shall do; I ask,whether he be not perfectly still in the state ofnature, and so can be no part or member of thatcivil society; unless any one will say the state ofnature and civil society are one and the samething, which I have never yet found any one sogreat a patron of anarchy as to affirm

CHAPTER VIII

Of the Beginning of Political Societies.

§ 95 Men being, as has been said, by natureall free, equal, and independent, no one can beput out of this estate, and subjected to the polit-ical power of another, without his own consent

The only way whereby any one divests himself ofhis natural liberty, and puts on the bonds of civilsociety, is by agreeing with other men to join andunite into a community, for their comfortable,safe, and peaceable living one amongst another,

in a secure enjoyment of their properties, and agreater security against any that are not of it Thisany number of men may do, because it injuresnot the freedom of the rest; they are left as theywere in the liberty of the state of nature Whenany number of men have so consented to makeone community or government, they are thereby

presently incorporated, and make one bodypolitic, wherein the majority have a right to actand conclude the rest

§ 96 For when any number of men have, bythe consent of every individual, made a commu-nity, they have thereby made that communityone body, with a power to act as one body, which

is only by the will and determination of themajority; for that which acts any communitybeing only the consent of the individuals of it,and it being necessary to that which is one body

to move one way; it is necessary the body shouldmove that way whither the greater force carries

it, which is the consent of the majority: or else it

is impossible it should act or continue one body,one community, which the consent of everyindividual that united into it agreed that itshould; and so every one is bound by that con-sent to be concluded by the majority And there-fore we see that in assemblies, empowered to act

by positive laws, where no number is set by thatpositive law which empowers them, the act ofthe majority passes for the act of the whole, and

of course determines; as having, by the law ofnature and reason, the power of the whole

§ 97 And thus every man, by consentingwith others to make one body politic under onegovernment, puts himself under an obligation toevery one of that society to submit to the deter-mination of the majority, and to be concluded

by it; or else this original compact, whereby hewith others incorporate into one society, wouldsignify nothing, and be no compact, if he be leftfree, and under no other ties than he was inbefore in the state of nature For what appear-ance would there be of any compact? what newengagement, if he were no farther tied by anydecrees of the society than he himself thoughtfit, and did actually consent to? This would bestill as great a liberty as he himself had before hiscompact, or any one else in the state of naturehath, who may submit himself and consent toany acts of it if he thinks fit

§ 98 For if the consent of the majority shallnot, in reason, be received as the act of thewhole, and conclude every individual, nothingbut the consent of every individual can makeany thing to be the act of the whole: but such aconsent is next to impossible ever to be had, if

we consider the infirmities of health, and tions of business, which in a number, thoughmuch less than that of a commonwealth, willnecessarily keep many away from the public

assembly To which if we add the variety of

opin-ions, and contrariety of interests which

unavoidably happen in all collections of men,

the coming into society upon such terms would

be only like Cato’s coming into the theatre, only

to go out again.70 Such a constitution as this

would make the mighty leviathan of a shorter

duration than the feeblest creatures, and not let

it outlast the day it was born in: which cannot be

supposed, till we can think that rational

crea-tures should desire and constitute societies only

to be dissolved: for where the majority cannot

conclude the rest, there they cannot act as one

body, and consequently will be immediately

dis-solved again

§ 99 Whosoever therefore out of a state ofnature unite into a community, must be under-

stood to give up all the power necessary to the

ends for which they unite into society, to the

majority of the community, unless they

express-ly agreed in any number greater than the

major-ity And this is done by barely agreeing to unite

into one political society, which is all the

com-pact that is, or needs be, between the individuals

that enter into, or make up a commonwealth

And thus that which begins and actually

consti-tutes any political society, is nothing but the

consent of any number of freemen capable of a

majority, to unite and incorporate into such a

society And this is that, and that only, which did

or could give beginning to any lawful

govern-ment in the world

§ 100 To this I find two objections made

First, “That there are no instances to befound in story, of a company of men independ-

ent and equal one amongst another, that met

together, and in this way began and set up a

§ 101 To the first there is this to answer, that

it is not at all to be wondered, that history gives

us but a very little account of men that livedtogether in the state of nature The inconven-iences of that condition, and the love and want

of society, no sooner brought any number ofthem together, but they presently united andincorporated, if they designed to continuetogether And if we may not suppose men ever tohave been in the state of nature, because we hearnot much of them in such a state, we may as wellsuppose the armies of Salmanasser71 or Xerxeswere never children, because we hear little ofthem till they were men, and embodied inarmies Government is every where antecedent

to records, and letters seldom come in amongst

a people till a long continuation of civil societyhas, by other more necessary arts, provided fortheir safety, ease, and plenty: and then theybegin to look after the history of their founders,and search into their original, when they haveoutlived the memory of it: for it is with com-monwealths as with particular persons, they arecommonly ignorant of their own births andinfancies: and if they know any thing of theiroriginal, they are beholden for it to the acciden-tal records that others have kept of it And thosethat we have of the beginning of any politics inthe world, excepting that of the Jews, where Godhimself immediately interposed, and whichfavours not at all paternal dominion, are alleither plain instances of such a beginning as Ihave mentioned, or at least have manifest foot-steps of it

§ 102 He must show a strange inclination todeny evident matter of fact, when it agrees notwith his hypothesis, who will not allow, that thebeginnings of Rome and Venice were by theuniting together of several men free and inde-pendent one of another, amongst whom there

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SECOND TREATISE ON GOVERNMENT

70 [Ed note] The reference of course is to Cato the Elder

(Marcus, 234–149 B.C.) who was called Cato the Censor

because of his opposition to the introduction into Rome of

Greek refinement and luxury This is the same Cato who

continually urged the destruction of Carthage, an event

which finally occurred three years after his death.

71 [Ed note] Undoubtedly a reference to Shalmaneser V (or

IV), King of Assyria (727–22 B.C.) who defeated the

Israelites (the inhabitants of the Northern Kingdom of Israel

consisting of ten of the twelve tribes of Israel) He besieged

the capital, Samaria, which fell to his successor Sargon II,

who carried the inhabitants off to captivity in Assyria These

incidents are referred to in II Kings (in the Catholic Bible, IV Kings) 17 As “Salmanazar,” he has achieved a certain meas- ure of immortality by providing the name of an oversized bottle of wine holding 9.6 liters or the equivalent of 12 reg- ular-size bottles of champagne (about ten U.S quarts).

Xerxes (d 465 B.C.), who is mentioned next in the text is of course the “Great King” (of Persia) who led the second Persian invasion of Greece He forced the pass at Thermopylae and burned Athens, but was defeated in the famous sea battle of Salamis (480 B.C.); after he returned to Asia Minor, his Army was routed at the battle of Plataea in

479 B.C.

of those of Peru, for a long time had neitherkings nor commonwealths, but lived in troops,

as they do this day in Florida, the Cheriquanas,those of Brasil, and many other nations, whichhave no certain kings, but as occasion is offered,

in peace or war, they choose their captains as

they please,” l i c 25 If it be said that every man

there was born subject to his father, or the head

of his family; that the subjection due from achild to a father took not away his freedom ofuniting into what political society he thought fit,has been already proved But be that as it will,these men, it is evident, were actually free; andwhatever superiority some politicians nowwould place in any of them, they themselvesclaimed it not, but by consent were all equal, till

by the same consent they set rulers over selves So that their politic societies all beganfrom a voluntary union, and the mutual agree-ment of men freely acting in the choice of theirgovernors and forms of government

them-§ 103 And I hope those who went away fromSparta with Palantus, mentioned by Justin,73 l

iii c 4, will be allowed to have been freemen,independent one of another, and to have set up

a government over themselves, by their ownconsent Thus I have given several examples out

of history, of people free and in the state ofnature, that being met together incorporatedand began a commonwealth And if the want ofsuch instances be an argument to prove thatgovernments were not, nor could not be sobegun, I suppose the contenders for paternalempire were better let it alone than urge itagainst natural liberty: for if they can give so

many instances out of history, of governmentsbegun upon paternal right, I think (though atbest an argument from what has been, to whatshould of right be, has no great force) onemight, without any great danger, yield them thecause But if I might advise them in the case,they would do well not to search too much intothe original of governments, as they have begun

de facto; lest they should find, at the foundation

of most of them, something very littlefavourable to the design they promote, and such

a power as they contend for

§ 104 But to conclude, reason being plain onour side, that men are naturally free, and theexamples of history showing, that the govern-ments of the world, that were begun in peace, hadtheir beginning laid on that foundation, and weremade by the consent of the people; there can belittle room for doubt, either where the right is, orwhat has been the opinion or practice ofmankind about the first erecting of governments

§ 105 I will not deny that if we look back asfar as history will direct us, towards the original

of commonwealths, we shall generally find themunder the government and administration ofone man And I am also apt to believe, thatwhere a family was numerous enough to subsist

by itself, and continued entire together, withoutmixing with others, as it often happens, wherethere is much land and few people, the govern-ment commonly began in the father: for thefather having, by the law of nature, the samepower with every man else to punish, as hethought fit, any offences against that law, mightthereby punish his transgressing children, evenwhen they were men, and out of their pupilage;and they were very likely to submit to his pun-ishment, and all join with him against theoffender in their turns, giving him therebypower to execute his sentence against any trans-gression, and so in effect make him the law-maker and governor over all that remained inconjunction with his family He was fittest to betrusted; paternal affection secured their proper-

ty and interest under his care; and the custom ofobeying him in their childhood, made it easier

to submit to him rather than to any other If,therefore, they must have one to rule them, asgovernment is hardly to be avoided amongstmen that live together, who so likely to be theman as he that was their common father, unlessnegligence, cruelty, or any other defect of mind

or body made him unfit for it? But when either

Historia Natural y Moral de las Indias (A Natural and Moral History of the Indians), translated into English in 1604 and

reprinted in 1880.

73 [Ed note] The reference is to Marcus Junianus Justinus, a Roman historian of the third century A.D (or possibly later) whose major work was a summary of an earlier history, now lost, of Gnaeus Pompeius Trogus, who flourished around the first century B.C to the first century A.D The event described in the text was the founding of Tarentum (modern Taranto) in Southern Italy by dissatisfied Spartans under Phalanthus at around 708 B.C This was the only colony ever founded by Sparta.

the father died, and left his next heir, for want of

age, wisdom, courage, or any other qualities, less

fit for rule, or where several families met and

consented to continue together, there, it is not to

be doubted, but they used their natural freedom

to set up him whom they judged the ablest, and

most likely to rule well over them Conformable

hereunto, we find the people of America, who

(living out of the reach of the conquering

swords and spreading domination of the two

great empires of Peru and Mexico) enjoyed their

own natural freedom, though, cœteris paribus,

they commonly prefer the heir of their deceased

king; yet if they find him any way weak or

inca-pable, they pass him by, and set up the stoutest

and bravest man for their ruler

§ 106 Thus, though looking back as far asrecords give us any account of peopling the

world, and the history of nations, we commonly

find the government to be in one hand; yet it

destroys not that which I affirm, viz that the

beginning of politic society depends upon the

consent of the individuals, to join into, and

make one society; who, when they are thus

incorporated, might set up what form of

gov-ernment they thought fit But this having given

occasion to men to mistake, and think that by

nature government was monarchical, and

belonged to the father; it may not be amiss here

to consider, why people in the beginning

gener-ally pitched upon this form: which though

per-haps the father’s preeminency might, in the first

institution of some commonwealth, give a rise

to, and place in the beginning the power in one

hand; yet it is plain that the reason that

contin-ued the form of government in a single person,

was not any regard or respect to paternal

authority; since all petty monarchies, that is,

almost all monarchies, near their original, have

been commonly, at least upon occasion, elective

§ 107 First then, in the beginning of things,the father’s government of the childhood of

those sprung from him, having accustomed

them to the rule of one man, and taught them

that where it was exercised with care and skill,

with affection and love to those under it, it was

sufficient to procure and preserve to men all the

political happiness they sought for in society; it

was no wonder that they should pitch upon, and

naturally run into that form of government,

which from their infancy they had been all

accustomed to; and which, by experience, they

had found both easy and safe To which, if we

add, that monarchy being simple, and mostobvious to men, whom neither experience hadinstructed in forms of government, nor theambition or insolence of empire had taught tobeware of the encroachments of prerogative, orthe inconveniencies of absolute power, whichmonarchy in succession was apt to lay claim to,and bring upon them; it was not at all strangethat they should not much trouble themselves tothink of methods of restraining any exorbitan-cies of those to whom they had given theauthority over them, and of balancing the power

of government, by placing several parts of it indifferent hands They had neither felt theoppression of tyrannical dominion, nor did thefashion of the age, nor their possessions, or way

of living (which afforded little matter for etousness or ambition), give them any reason toapprehend or provide against it; and therefore it

cov-is no wonder they put themselves into such aframe of government, as was not only, as I said,most obvious and simple, but also best suited totheir present state and condition, which stoodmore in need of defence against foreign inva-sions and injuries, than of multiplicity of laws

The equality of a simple poor way of living, fining their desires within the narrow bounds ofeach man’s small property, made few controver-sies, and so no need of many laws to decidethem, or variety of officers to superintend theprocess, or look after the execution of justice,where there were but few trespasses, and fewoffenders Since then those who liked oneanother so well as to join into society, cannot but

con-be supposed to have some acquaintance andfriendship together, and some trust one inanother; they could not but have greater appre-hensions of others than of one another: andtherefore their first care and thought cannot but

be supposed to be, how to secure themselvesagainst foreign force It was natural for them toput themselves under a frame of governmentwhich might best serve to that end, and choosethe wisest and bravest man to conduct them intheir wars, and lead them out against their ene-mies, and in this chiefly be their ruler

§ 108 Thus we see that the kings of theIndians in America, which is still a pattern of thefirst ages in Asia and Europe, whilst the inhabi-tants were too few for the country, and want ofpeople and money gave men no temptation toenlarge their possessions of land, or contest forwider extent of ground, are little more than gen-erals of their armies; and though they command

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2 4 F O U N D A T I O N S O F U S L A W P R I M A R Y D O C U M E N T S

absolutely in war, yet at home and in time ofpeace they exercise very little dominion, andhave but a very moderate sovereignty; the reso-lutions of peace and war being ordinarily either

in the people, or in a council Though the waritself, which admits not of plurality of gover-nors, naturally devolves the command into theking’s sole authority

* * *

[Section 109 contains a discussion of trations taken from the history of Israel as con-tained in the Old Testament.]

illus-§ 110 Thus, whether a family by degreesgrew up into a commonwealth, and the fatherlyauthority being continued on to the elder son,every one in his turn growing up under it, tacit-

ly submitted to it; and the easiness and equality

of it not offending any one, every one esced, till time seemed to have confirmed it, andsettle a right of succession by prescription: orwhether several families, or the descendants ofseveral families, whom chance, neighbourhood,

acqui-or business brought together, uniting into ty: the need of a general, whose conduct mightdefend them against their enemies in war, andthe great confidence the innocence and sincerity

socie-of that poor but virtuous age (such as are almostall those which begin governments, that evercome to last in the world) gave men of oneanother, made the first beginners of common-wealths generally put the rule into one man’shand, without any other express limitation orrestraint, but what the nature of the thing andthe end of government required: whichever ofthose it was that at first put the rule into thehands of a single person, certain it is thatnobody was intrusted with it but for the publicgood and safety, and to those ends, in the infan-cies of commonwealths, those who had it, com-monly used it And unless they had done so,young societies could not have subsisted; with-out such nursing fathers, tender and careful ofthe public weal, all governments would havesunk under the weakness and infirmities of theirinfancy, and the prince and the people had soonperished together

§ 111 But though the golden age (before

vain ambition, and amor sceleratus habendi, evil

concupiscence, had corrupted men’s minds into

a mistake of true power and honour) had morevirtue, and consequently better governors, aswell as less vicious subjects; and there was then

no stretching prerogative on the one side, to

oppress the people; nor consequently on theother, any dispute about privilege, to lessen orrestrain the power of the magistrate; and so nocontest betwixt rulers and people about gover-nors or government: yet, when ambition andluxury in future ages74would retain and increasethe power, without doing the business for which

it was given; and, aided by flattery, taughtprinces to have distinct and separate interestsfrom their people; men found it necessary toexamine more carefully the original and rights

of government, and to find out ways to restrainthe exorbitancies, and prevent the abuses of thatpower, which they having intrusted in another’shands only for their own good, they found wasmade use of to hurt them

§ 112 Thus we may see how probable it is,that people that were naturally free, and by theirown consent either submitted to the government

of their father, or united together out of differentfamilies to make a government, should generallyput the rule into one man’s hands, and choose to

be under the conduct of a single person, without

so much as by express conditions limiting or ulating his power, which they thought safeenough in his honesty and prudence: though

reg-they never dreamed of monarchy being jure

divi-no, which we never heard of among mankind, till

it was revealed to us by the divinity of this lastage; nor ever allowed paternal power to have aright to dominion, or to be the foundation of allgovernment And thus much may suffice toshow, that, as far as we have any light from histo-

ry, we have reason to conclude, that all peacefulbeginnings of government have been laid in theconsent of the people I say peaceful, because Ishall have occasion in another place to speak ofconquest, which some esteem a way of beginning

of governments

The other objection I find urged against thebeginning of politics, in the way I have men-tioned, is this, viz

§ 113 “That all men being born under ernment, some or other, it is impossible any ofthem should ever be free, and at liberty to unitetogether, and begin a new one, or ever be able toerect a lawful government.”

gov-If this argument be good, I ask, how came somany lawful monarchies into the world? for if

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74 [Ed note] In a footnote, Locke here quotes again (see note

67, supra) but at greater length from Hooker, LAWS OF

ECCLESIASTICAL POLITY, Bk I, c x, § 5.

any body, upon this supposition, can show me

any one man in any age of the world free to begin

a lawful monarchy, I will be bound to show him

ten other free men at liberty at the same time to

unite and begin a new government under a regal,

or any other form; it being demonstration, that if

any one, born under the dominion of another,

may be so free as to have a right to command

others in a new and distinct empire, every one

that is born under the dominion of another may

be so free too, and may become a ruler, or subject

of a distinct separate government And so by this

their own principle, either all men, however

born, are free, or else there is but one lawful

prince, one lawful government in the world And

then they have nothing to do, but barely to show

us which that is; which when they have done, I

doubt not but all mankind will easily agree to pay

obedience to him

§ 114 Though it be a sufficient answer totheir objection, to show that it involves them in

the same difficulties that it doth those they use it

against; yet I shall endeavour to discover the

weakness of this argument a little farther

“All men, ‘say they,’ are born under ment, and therefore they cannot be at liberty to

govern-begin a new one Every one is born a subject to

his father, or his prince, and is therefore under

the perpetual tie of subjection and allegiance.” It

is plain mankind never owned nor considered

any such natural subjection that they were born

in, to one or to the other, that tied them, without

their own consents, to a subjection to them and

their heirs

§ 115 For there are no examples so frequent

in history, both sacred and profane, as those of

men withdrawing themselves, and their

obedi-ence, from the jurisdiction they were born

under, and the family or community they were

bred up in, and setting up new governments in

other places; from whence sprang all that

num-ber of petty commonwealths in the beginning of

ages, and which always multiplied as long as

there was room enough, till the stronger, or

more fortunate, swallowed the weaker; and

those great ones again breaking to pieces,

dis-solved into lesser dominions All which are so

many testimonies against paternal sovereignty,

and plainly prove that it was not the natural

right of the father descending to his heirs, that

made governments in the beginning, since it was

impossible, upon that ground, there should have

been so many little kingdoms; all must have

been but only one universal monarchy, if menhad not been at liberty to separate themselvesfrom their families and the government, be itwhat it will, that was set up in it, and go andmake distinct commonwealths and other gov-ernments, as they thought fit

§ 116 This has been the practice of the worldfrom its first beginning to this day; nor is it nowany more hinderance to the freedom of mankind,that they are born under constituted and ancientpolities, that have established laws and set forms

of government, than if they were born in thewoods, amongst the unconfined inhabitants thatrun loose in them: for those who would persuade

us, that “by being born under any government,

we are naturally subjects to it,” and have no moreany title or pretence to the freedom of the state ofnature; have no other reason (bating that ofpaternal power, which we have already answered)

to produce for it, but only because our fathers orprogenitors passed away their natural liberty, andthereby bound up themselves and their posterity

to a perpetual subjection to the governmentwhich they themselves submitted to It is true,that whatever engagement or promises any onehas made for himself, he is under the obligation

of them, but cannot, by any compact whatsoever,bind his children or posterity: for his son, when aman, being altogether as free as the father, any

“act of the father can no more give away the erty of the son,” than it can of any body else: hemay indeed annex such conditions to the land heenjoyed as a subject of any commonwealth, asmay oblige his son to be of that community, if hewill enjoy those possessions which were hisfather’s; because that estate being his father’sproperty; he may dispose or settle it as he pleases

lib-§ 117 And this has generally given the sion to mistake in this matter; because com-monwealths not permitting any part of theirdominions to be dismembered, nor to beenjoyed by any but those of their community,the son cannot ordinarily enjoy the possessions

occa-of his father, but under the same terms his fatherdid, by becoming a member of the society;

whereby he puts himself presently under thegovernment he finds there established, as much

as any other subject of that commonwealth Andthus “the consent of freemen, born under gov-ernment, which only makes them members ofit,” being given separately in their turns, as eachcomes to be of age, and not in a multiudetogether; people take no notice of it, and think-

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to the privileges of it: nor the king of France’s;

for how then has his father a liberty to bring himaway, and breed him as he pleases? and who everwas judged as a traitor or deserter, if he left orwarred against a country, for being barely born

in it of parents that were aliens there? It is plainthen, 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 ment.”75 He is under his father’s tuition andauthority till he comes to age of discretion; andthen he is a freeman, at liberty what government

govern-he will put himself under, what body politic govern-hewill unite himself to: for if an Englishman’s son,born in France, be at liberty, and may do so, it isevident there is no tie upon him by his father’sbeing a subject of this kingdom; nor is he bound

up by any compact of his ancestors And whythen hath not his son, by the same reason, thesame liberty, though he be born any where else?

Since the power that a father hath naturally overhis children is the same, wherever they be born,and the ties of natural obligations are notbounded by the positive limits of kingdoms andcommonwealths

§ 119 Every man being, as has been showed,naturally free, and nothing being able to put himinto subjection to any earthly power, but onlyhis own consent; it is to be considered, what

shall be understood to be a sufficient declaration

of a man’s consent, to make him subject to thelaws of any government There is a common dis-tinction of an express and a tacit consent, whichwill concern our present case Nobody doubtsbut an express consent of any man entering intoany society, makes him a perfect member of thatsociety, a subject of that government The diffi-culty is, what ought to be looked upon as a tacit

consent, and how far it binds, i.e how far any

one shall be looked on to have consented, andthereby submitted to any government, where hehas made no expressions of it at all And to this

I say, that every man, that hath any possessions,

or enjoyment of any part of the dominions ofany government, doth thereby give his tacit con-sent, and is as far forth obliged to obedience tothe laws of that government, during such enjoy-ment, as any one under it; whether this his pos-session be of land, to him and his heirs for ever,

or a lodging only for a week; or whether it bebarely travelling freely on the highway; and, ineffect, it reaches as far as the very being of anyone within the territories of that government

§ 120 To understand this the better, it is fit

to consider, that every man, when he at firstincorporates himself into any commonwealth,

he, by his uniting himself thereunto, annexesalso, and submits to the community those pos-sessions which he has, or shall acquire, that donot already belong to any other government: for

it would be a direct contradiction for any one toenter into society with others for the securingand regulating of property, and yet to supposehis land, whose property is to be regulated by thelaws of the society, should be exempt from thejurisdiction of that government, to which hehimself, the proprietor of the land, is a subject

By the same act therefore, whereby any oneunites his person, which was before free, to any

… I desire them to resolve me by what right any prince or state can put to death or punish an alien for any crime he commits in their country It is cer- tain their laws, by virtue of any sanction they receive from the promulgated will of the legislative, reach not a stranger: they speak not to him, nor, if they did, is he bound to harken to them The leg- islative authority, by which they are in force over the subjects of that commonwealth, hath no power over him Those who have the supreme power of

making laws in England, France, or Holland, are to

an Indian but like the rest of the world, men out authority: and therefore, if by the law of nature every man hath not a power to punish offences against it, as he soberly judges the case to require, I see not how the magistrates of any community can punish an alien of another country; since, in refer- ence to him, they can have no more power than what every man naturally may have over another.

with-J Locke, The Second Treatise on Government Para 9 [5 with-J.

Locke, WORKS 342 (1823 ed.) from which these readings

were taken] Locke seems driven to this a priori rejection of the ius sanguinis and ius soli as legitimate bases of jurisdic-

tion by his insistence that governmental power can only originate from consent.

commonwealth, by the same he unites his

pos-sessions, which were before free, to it also: and

they become, both of them, person and

posses-sion, subject to the government and dominion

of that commonwealth, as long as it hath a

being Whoever, therefore, from thenceforth, by

inheritance, purchase, permission, or otherways,

enjoys any part of the land so annexed to, and

under the government of that commonwealth,

must take it with the condition it is under; that

is, of submitting to the government of the

com-monwealth, under whose jurisdiction it is, as far

forth as any subject of it

§ 121 But since the government has a directjurisdiction only over the land, and reaches the

possessor of it (before he has actually

incorpo-rated himself in the society) only as he dwells

upon, and enjoys that; the obligation any one is

under, by virtue of such enjoyment, to “submit

to the government, begins and ends with the

enjoyment:” so that whenever the owner, who

has given nothing but such a tacit consent to the

government, will, by donation, sale, or

other-wise, quit the said possession, he is at liberty to

go and incorporate himself into any other

com-monwealth; or to agree with others to begin a

new one, in vacuis locis, in any part of the world

they can find free and unpossessed: whereas he

that has once, by actual agreement, and any

express declaration, given his consent to be of

any commonwealth, is perpetually and

indis-pensably obliged to be, and remain unalterably a

subject to it, and can never be again in the

liber-ty of the state of nature; unless, by any calamiliber-ty,

the government he was under comes to be

dis-solved, or else by some public act cuts him off

from being any longer a member of it

§ 122 But submitting to the laws of anycountry, living quietly, and enjoying privileges

and protection under them, makes not a man a

member of that society: this is only a local

pro-tection and homage due to and from all those,

who, not being in a state of war, come within the

territories belonging to any government, to all

parts whereof the force of its laws extends But

this no more makes a man a member of that

society, a perpetual subject of that

common-wealth, than it would make a man a subject to

another, in whose family he found it convenient

to abide for some time; though, whilst he

con-tinued in it, he were obliged to comply with the

laws, and submit to the government he found

there And thus we see, that foreigners, by living

all their lives under another government, andenjoying the privileges and protection of it,though they are bound, even in conscience, tosubmit to its administration, as far forth as anydenison; yet do not thereby come to be subjects

or members of that commonwealth Nothingcan make any man so, but his actually enteringinto it by positive engagement, and expresspromise and compact This is that which I thinkconcerning the beginning of political societies,and that consent which makes any one a mem-ber of any commonwealth

CHAPTER IX

Of the Ends of Political Society and Government.

§ 123 If man in the state of nature be so free

as has been said; if he be absolute lord of his ownperson and possessions, equal to the greatest,and subject to nobody, why will he part with hisfreedom, why will he give up this empire, andsubject himself to the dominion and control ofany other power? To which it is obvious toanswer, that though in the state of nature hehath such a right yet the enjoyment of it is veryuncertain, and constantly exposed to the inva-sion of others; for all being kings as much as he,every man his equal, and the greater part nostrict observers of equity and justice, the enjoy-ment of the property he has in this state is veryunsafe, very unsecure This makes him willing toquit a condition, which, however free, is full offears and continual dangers: and it is not with-out reason that he seeks out, and is willing tojoin in society with others, who are already unit-

ed, or have a mind to unite, for the mutualpreservation of their lives, liberties and estates,which I call by the general name property

§ 124 The great and chief end, therefore, ofmen’s uniting into commonwealths, and puttingthemselves under government, is the preserva-tion of their property To which in the state ofnature there are many things wanting

First, There wants an established, settled,known law, received and allowed by commonconsent to be the standard of right and wrong,and the common measure to decide all contro-versies between them: for though the law ofnature be plain and intelligible to all rationalcreatures: yet men being biassed by their inter-est, as well as ignorant for want of studying it,are not apt to allow of it as a law binding to them

in the application of it to their particular cases

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