Locke's Theory of the State by Frederick Pollock 1904 Proceedings of the British Academy, volume 2, 1904, pp. 237-49. Locke's Essay on Civil Government is well known, and is probably the most important contribution ever made to English constitutional law by an author who was not a lawyer by profession; certainly there is nothing to be compared to it until we come to Bagehot in our own time. Still I do not know that it has ever been analysed by an English lawyer with reference to its immediate purpose and circumstances. In fact Locke's political doctrine holds quite a secondary place in such accounts of Locke as are generally current in the hands of the educated public. The Essay on Civil Government has been overshadowed by the Essay on the Human Understanding and the Letters on Toleration. This, together with the special occasion, may perhaps be a sufficient excuse for the present attempt. The first thing to bear in mind about the Essay on Civil Government is that it is essentially an apologia for the Convention Parliament, no less than Hobbes's Leviathan and Behemoth were an indictment of the Long Parliament. It is true that in the body of the work the language employed is studiously general. But the date of publication, 1690, would alone be enough to remove any doubts of the intention, and moreover that intention is clearly stated in the Preface to the two treatises of which the Essay is the second. It may be well to cite Locke's own words. 'Reader, Thou hast here the Beginning and End of a Discourse concerning Government; what Fate has otherwise disposed of the Papers that should have filled up the Middle, and were more than all the rest, 'tis not worth while to tell thee. These which remain, I hope are sufficient to establish the Throne of our great Restorer, our present King William; to make good his title, in the Consent of the People; which being the only one of all lawful Governments, he has more fully and clearly, than any Prince in Christendom; and to justify to the World the People of England, whose love of their just and natural Rights, with their Resolution to preserve them, saved the Nation when it was on the very brink of Slavery and Ruin.' The doctrine which Locke had to confute, was, as is well known, that of absolute monarchy. the champion whom he attacked by name and elaborately demolished in the first of the Two Treatises of Government was, however strange it may seem to us nowadays, not Thomas Hobbes but Sir Robert Filmer. For us Hobbes is the recognized founder of the English school of politics and jurisprudence; while Filmer, as the late Prof. Croom Robertson incidentally observed in discussing Hobbes (and I see no reason to doubt the soundness of the remark), is saved by Locke from oblivion. In Locke's time Sir Robert Filmer was fashionable among royalists and Hobbes was not. Hobbes's uncompromising rejection of ecclesiastical claims made it, in fact, impossible for a party bound up with Anglican prelacy to have anything to do with him; and his justification of obedience to any de facto government in being was hardly less distasteful to maintainers of the divine right of kings. Express controversy with Hobbes was therefore quite useless for Locke's purpose. Nevertheless Locke must have seen that, apart from the party strife of the moment, Hobbes was the really formidable adversary. Moreover Filmer, with all his absurdities, had one fundamental point in common with Hobbes. Indeed he was the only publicist of the time, so far as I know, who mentioned Hobbes with approval, though a limited approval. 'With no small Content,' says Filmer, 'I read Mr Hobs's Book De Cive, and his Leviathan, about the Rights of Sovereignty, which no man, that I know, hath so amply and judiciously handled: I consent with him about the Rights of exercising Government, but I cannot agree to his means of acquiring it.(1*) Again: 'We do but flatter ourselves, if we hope ever to be governed without an Arbitrary Power. No: we mistake, the Question is not, Whether there shall be an Arbitrary Power; but the only point is, Who shall have that Arbitrary Power, whether one man or many? There never was, nor ever can be any People govern'd without a Power of making Laws, and every Power of making Laws must be Arbitrary: For to make a Law according to Law, is Contradictio in adjecto.'(2*) This, I need hardly say, is pure Hobbism, the impossibility of a limited government or 'mixarchy'(3*) is the very burden of Hobbes's Behemoth. We need not be surprised, therefore, either at the lack of specific dealing with Hobbes in Locke's Essay, or at the ample internal evidence that Locke had in fact studied Hobbes's doctrine with quite as much critical attention as Filmer's. There is no occasion for us to trouble ourselves with Locke's polemic against Filmer, even so far as it runs over from the First Treatise into the Essay.(4*) King Charles I's imaginary title as right heir of Adam is as grotesque to any modern lawyer as Adam's imaginary political dominion over the world can be to any modern publicist. Good Sir Robert wholly failed, as Locke was at the pains to show at large,(5*) to prove what was the rule of succession to Adam's original title, why it should have been primogeniture rather than equal division, and whether it is discoverable by the light of nature or imparted to us by any and what revelation. It would be too curious, perhaps, to consider whether he supposed the course of descent to be in fee simple, tail male, or how otherwise, and whether after the Deluge Noah took by a new grant and became a new stock of descent, or was in as of Adam's old estate. I have known only one man capable of doing full justice to that theme, my lamented and most learned friend Mr Challis. Locke does point out that the whole of Filmer's theory falls to the ground unless he can make out that Shem was universal monarch.(6*) Adam's original title, moreover, had already been relied on to quite the opposite purpose by the section of the Independents known as Levellers. They deduced to all men, as sons of Adam, 'a natural property, right, and freedom' which could be duly exercised only in a pure democracy.(7*) Sir Robert Filmer, then, is out of the story; nor is it worth while to guess what kind of reply he could or would have attempted if he had been living; and we may proceed to Locke's own account of political power. At the outset the object of inquiry is thus defined: 'Political Power... I take to be a Right of making Laws with Penalties of Death, and consequently all less Penalties, for the regulating and preserving of Property, and of employing the Force of the Community, in the Execution of such Laws, and in the Defence of the Commonwealth from foreign Injury, and all this only for the publick Good., The last clause, which I have italicized, gives the keynote of the whole Essay. Princes and rulers hold their powers, whatever may be their legal form, not by an absolute right founded on grant, covenant, or otherwise, but on conditions in the nature of a trust, and under liability to forfeiture if the conditions are not fulfilled. Locke was no lawyer; but it is allowable to believe that the peculiar doctrines of the English Common Law as to conditional estates, and of English Courts of Equity as to the duties of trustees, although the latter was still in its infancy, had a distinct influence in moulding his dialectic. For absolute originality there was no room. Every kind of material for political construction was ready to hand in the polemics of the Reformation controversy, not to speak of the mediaeval writers who had become to Locke's contemporaries far more obscure than they are to us. The researches of modern scholars, among whom the first place is undoubtedly Gierke's, have shown that all possible theoretical combinations, except the much later system of Cabinet Government which has democratized our monarchy, were anticipated, if not developed, by the political writers of the sixteenth century. Locke's work was inevitably eclectic, and must have been so even if it had not been conditioned by a definite practical aim. He is so far from professing to be original that he is almost ostentatious in following Hooker, whom he vouches at several points in fairly copious extracts. Hooker, of course, was an authority whom Anglicans were bound to treat with respect. The skill and judgement of Locke's performance were proved in the most conclusive manner by the commanding position which the doctrine formulated by him acquired forthwith and held for nearly a century. Locke's political system, like all such systems for a long time before and a long time after him, purports to be founded on natural law; that is to say, on rules of conduct which the light of reason, without aid of any special revelation, and without assuming the existence or authority of any form of society, can discover as generally applicable to man as a rational being. This, I think, is a sufficient account for our purpose of what Locke's contemporaries understood by the law of nature, however widely they differed in their methods of ascertaining its principles, and in the results which they derived. Hobbes was as ready as any man to declare that the laws of nature are immutable and eternal.'(8*) which however did not prevent his laws of nature from being unlike other people's, or other people from regarding several of Hobbes's immutably true propositions as not only mischievous but demonstrably false. It is important for any fair appreciation of Locke to remember that, although the mediaeval tradition was interrupted, the mediaeval assumption that there is a law of nature, and that when ascertained it is supreme, was still prevalent. This indeed had never been contradicted, save so far as any Protestant controversialists maintained with Dumoulin that the text of Scripture came first. Possibly both Locke and his English opponents would have accepted the Reformers' position on that point; it was not one which they had occasion to consider. But Locke does not confine the obligations of the law of nature to mortal men. He proves a fortiori that those obligations are binding on princes (sect. 195). They 'are so great, and so strong, in the Case of Promises, that Omnipotency it self can be tied by them. Grants, Promises, and Oaths are Bonds that hold the Almighty.' Locke may or may not have read in an earlier writer rediscovered for modern readers by Gierke that 'Deus ipse ex promissione obligatur.' Thus Locke was bound to begin with the 'state of nature.' No other way of answering either Hobbes or Filmer would have given formal satisfaction. But this state, for Locke as for the Schoolmen, is rather a perfectly conscious abstraction than an attempt to construct the actual origin of society. The question is what a man's rights would be in the absence of any positive institutions. Nevertheless an actual state of nature exists between independent princes and rulers, and between any subjects of different states (or jurisdictions) who may meet in a place where there is no civilized government (sect. 14). Under what law (to put a modern example) are a Scot and a French Canadian in the Khaibar Pass? Modern jurisprudence can in most cases lay hold of some circumstance to obtain a working answer. But the topic may not be pursued here. Hobbes is met with flat contradiction (though not explicitly, for the reasons already given) at the earliest possible point. All men are equal by nature in the sense that no one man has an original claim on any other's political obedience; not in any other sense, and so far we are at one with Hobbes. Every man is entitled and bound to preserve the existence which God has given him. But (contrary to Hobbes) he is no less bound to preserve other men, being his fellow creatures and fellow servants, 'when his own preservation comes not in competition.' This amounts to saying that the problem is not to account for the existence of society, but to ascertain its best or normal mode of existence. I should be the first to admit that Locke's way of saying it is both less frank and less sound than Aristotle's. As against the opponents he had to reckon with, it was effective and ingenious, being so framed that no one who accepted the authority of Scripture could well traverse it without manifest risk of impiety. Hence every man's natural power over others is already not arbitrary, as Hobbes would have it, but quasi-judicial. Every man has natural judicial and executive power until such powers are regularly constituted.(9*) Hence, again, the law of nature authors all necessary acts of self-defence; and this, even under the rule of settled law, is the only ground for the jurisdiction of any government over resident aliens: a curious opinion which seems to be peculiar to Locke, and gratuitous; for one does not see why the theory of submission by tacit consent, on which Locke has to rely later, is less applicable to temporary than to permanent allegiance. This doctrine of the executive power is doubtless open, says Locke, to the objection that it makes every man a judge in his own cause. That is so, and the use of civil government is to remedy such inconvenience. But absolute monarchy fails just in this respect, for the absolute monarch so dear to Hobbes and Filmer remains in a state of nature with respect to his own subjects, and therefore judge in his own cause.(10*) Further, there is a 'plain difference between the state of Nature, and the state of War, which however some men have confounded': for 'men living together according to reason, without a common superior on earth with authority to judge between them' may live in peace if they will, and such is their will so long as they are reasonable. 'Want of a common judge with authority puts all men in a state of nature'; but it is only some act of aggression, 'force without right upon a man's person,' that makes a state of war. Political authority is instituted to avoid the risk of a state of war, not to put an end to a state of war necessarily existing. In short, in the state of nature there may be peace, though a precarious peace. This is, of course, intended as a mortal stroke against Hobbes's theory, and implicitly denies his position that the worst of governments is always more tolerable than the state of nature. Slavery is the result of conquest in a state of war; and freedom is not the absence of all rule, but 'is to have a standing rule to live by' as opposed to being subject to an arbitrary power like a conqueror's. Not that even a conqueror's power is unlimited of right; for Locke argues in a later chapter, the connexion of which with his main purpose is not made very clear, that a conqueror does not acquire general dominion over the property of the conquered, but is entitled at most to a charge upon it for an indemnity. Locke thinks it prudent to establish a natural right of property (chap. v) antecedent to political institutions. His solution of the problem is that appropriation is the reward of labour. A man acquires a right in severally to that which 'he hath mixed his labour with.' The preceding assumption that 'every man has a property in his own person' appeared safe and easy to Locke, but it is certainly not good law, and was expressly contradicted by Ulpian ('dominus membrorum suorum nemo videtur'(11*)). The rights of every man to personal safety, reputation, and so forth, are not marketable or transferable, and are wholly distinct in kind from rights of property. Locke's attempt to make an extended conception of Occupation bear the whole burden of Property was eminently that of an ingenious layman. It is far from obvious, assuming Locke's premisses, how any one can claim the action of the law of nature for appropriating more than is necessary to support himself and his family. Locke sees the difficulty, but cannot be said to remove it. This economic digression, however is now of little interest. It is explained by Locke's anxiety to set up as many barriers as possible against arbitrary interference on the part of the State. He seems even to ignore the doctrine of Eminent Domain, of which he must have heard. We cannot suppose that he would have actually denied the moral right of the State to take private property for public purposes on payment of just compensation, but he may have thought it so liable to abuse as to be best kept in the background. Property cannot be made secure by natural right alone, and for the better securing of their properties men have entered into civil society. The will of the body politic, when formed, is determined by the will of the majority, and of a bare majority if there be no different express agreement. For this Locke does not give any reason but the necessity of the case; it is certain that much worse ones have been given. As a matter of fact, we now know that a majority vote has not been generally recognized in archaic societies; the difficulty of obtaining nominal unanimity was overcome (as in special cases it still has to be) by various methods, including varying elements of force and fiction. This does not apply to the original agreement to form a society, which is assumed to be unanimous, and includes only the actual parties to it. Any one who stands out may go his ways and provide for himself elsewhere. It would seem that the community is entitled to enforce his departure; it is certain, on Locke's principles, that it has not the right to detain him against his will. Could he agree to stay in an inferior capacity like that of a resident alien? But it is needless to pursue the auxiliary fictions which might be devised. A body politic, then, is formed by consent; the essential term of the agreement is that every member gives up his natural judicial and executive power to the community (not, as Hobbes maintains, to an irresponsible sovereign); and this consent is renewed, tacitly if not expressly, in the person of every new member; for one cannot accept the benefit of a settled government except on those terms on which it is offered. Locke is bold to assert that 'a child is born a subject of no country or government,' and may choose his allegiance for himself at the age of discretion: this is another opinion which no modern lawyer will accept, least of all a continental one. It is however necessary to Locke's theory, and is one of the many details in which his individualism, and every scheme of individualism, breaks down. He guards himself to a certain extent by adding that a man does not make himself a member of an existing commonweal merely by accepting the protection of its government. Nothing short of 'positive engagement and express promise and compact' will confer citizenship. As to the historical objection for want of proof that governments were in fact originally founded by consent, Locke answers, first that historical evidence of what men did before the beginning of history is not to be expected, and secondly that examples of states being founded by consent, such as Rome and Venice, are not wanting. More recent and more striking examples might have been drawn from the settlement of New England, but the fact that the colonists remained and professed to remain subjects of the king of England would have given too much of a handle for controversy; not to mention that the Pilgrim Fathers, whose deliberate constitution of themselves into a body politic is on record, were not at all like primitive or pre-historic men. This last consideration, however, would have had no weight among seventeenth-century disputants. The general prevalence of monarchy in early times is admitted as a fact, but not admitted to be any argument against the origin of government in consent. Why should not the consent and intention of the founders have followed the precedent set by the existing usage of families? We may suppose if we like that 'a family by degrees grew into a commonwealth, and the fatherly authority being continued on to the elder son, every one in his turn growing up under it tacitly submitted to it, and the easiness and equality of it not offending any one, every one acquiesced, till time seemed to have confirmed it and settled a right of succession by prescription' (sect. 110). This is of some interest as showing exactly how near Locke could come to a historical point of view. Summing up his argument (in chaps. vii and viii; I have not closely followed the order, as it is somewhat clumsy to a modern reader) Locke states (chap. ix) the reasons which move men to restrict their natural rights by mutual agreement, and unite into commonwealths 'for the mutual preservation of their lives, liberties, and estates, which I call by the general name, Property.' In the state of nature this cannot be assured. The defects of merely natural society are -- 1. Want of established and known law. 'For tho the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biassed by their Interest, as well as ignorant for want of Study of it, are not apt to allow of it as a Law binding to them, in the application of it to their particular Cases.' 2. The want of 'a known and indifferent Judge.' 3. Power to execute sentences; for though every man is, in default of positive law, 'both Judge and Executioner of the Law of Nature,' the ability is often not proportionate to the right. Locke, then, admits that mankind are 'but in an ill condition' when left to the state of nature; he is not really very far from Hobbes's well-known description of the state of war. Some surrender of natural right is necessary; where Locke differs with Hobbes is in holding that, as the surrender is for a definite purpose, it is not unlimited, but conditional on that purpose being fulfilled. Accordingly the natural powers of self-preservation and punishment are put 'into the hands of the Society' not absolutely but 'to be so far disposed of by the Legislative, as the good of the Society shall, and the power of the Commonwealth or its legislative organ 'can require'; never be supposed to extend farther than the Common Good.' Whatever be the form of government, it must be administered according to known law, and 'directed to no other End, but the Peace, Safety, and publick Good of the People.' Towards the end of the Essay (chap. xviii 'Of Tyranny') Locke cites an unexpected witness, no other than King James I, in support of this fundamental position. The legislative power, once constituted by consent, is the supreme power in the Commonwealth, but not arbitrary (chap. xi). We find the reason of its supremacy given very shortly in a later passage (sec. 150): 'what can give laws to another must needs be superior to him.' But the legislative authority is bound by its trust and by the law of nature to govern by established laws, to act in good faith for the common advantage, not to raise taxes without the consent of the people by themselves or their deputies, and not to transfer its power of making laws (being only a delegated power) to any other hands. This is the most meagre and least satisfying part of Locke's work. He does not seem to conceive the possibility of a legislature having powers limited by express convention but plenary within those limits; nor does he consider at all the partial exercise of legislative power by bodies having a merely delegated authority. He could not be expected to anticipate the constitutions of self-governing colonies, but he must have known that the University of Oxford and his own House had statutes: and he must have desired to see the latter, at any rate, better secured from arbitrary interference than they had been in his own case. Yet he does make a very apt reference, in distinguishing absolute from arbitrary power, to the example of military discipline, where the officer may have power of life and death over the soldier, but cannot 'dispose of one farthing of that soldier's estate, or seize one jot of his goods.' Neither does Locke touch at all on what is now called constitutional amendment, except negatively. He seems to assume that nothing of the kind can be done, in any form of government, without express provision for that purpose. What makes the omission of argument on this point the more remarkable is that Sir Thomas Smith, writing a century and a quarter earlier, had enounced the unqualified sovereignty of Parliament in terms so full and explicit that Blackstone, after the lapse of just two centuries, could add nothing to them; while on the other hand the necessity of unalterable 'fundamentals' in any scheme of government had been much discussed under the Commonwealth, and maintained by Cromwell himself among others. Sir Thomas Smith's Commonwealth of England is now, for want of a modern edition, not so well known as it ought to be; but it was more than once reprinted in the seventeenth century, and one can hardly suppose Locke to have been unacquainted with it. In fact there was in Locke's time respectable authority for three different theories of the supreme power in England. The King was absolute, according to the ultra-royalists and Hobbes: Locke demolished this contention once for all, whatever we may think of his constructive work. Parliament, or the King in Parliament, was absolute according to Sir Thomas Smith and the practice of the Tudor reigns: this view was accepted by Blackstone and has been the only tenable one among English lawyers ever since. According to a third doctrine prevalent among students of the Common Law down to the early part of the eighteenth century, there are bounds set by natural justice or 'common right' even to what the King in Parliament can do; that is to say, the judges ought to disregard an Act of Parliament if it is manifestly contrary to natural justice, and perhaps if it attempts to subvert the foundations of the constitution; for example, if it purported to abolish the Monarchy or the House of Commons. Locke's opinion is in substance a less technical version of this last; and it is worth while to observe that existing legal authorities were in his favour. Sir Thomas Smith, whose opinion ultimately prevailed, was not a common lawyer but a civilian. Locke touches on the separation of legislative from executive power, which was to become a constitutional dogma for his eighteenth-century followers; he gives only the practical reason that there is no need for the legislative to be always in being, but executive power for both domestic and foreign affairs must be constantly ready for action. The foreign department of government is distinguished by the not very happy epithet of 'federative,' which was not adopted, so far as I know, by any one. We have now seen the whole of Locke's principles of polity. The last seven chapters of the Essay are a justification in detail, but by way of elaborate allusion, of their application to English affairs in the Whig theory of the Constitution, and in particular of the Revolution of 1688. Power being entrusted to rulers only on condition, that condition is enforceable at need, whatever be the legal forms of government: 'there remains still in the People a supreme power to remove or alter the Legislative, when they find the Legislative act contrary to the Trust reposed in them.' In this sense the Community is supreme, 'but not as considered under any form of government, because the power of the people can never take place till the government be dissolved.' In other words, the ultimate reserved power is extra-legal and superior to the positive forms of the Constitution. Blackstone, whose criticism of Locke is in the main intelligent and fair, does not do him complete justice on this point. In a constitutional Monarchy the 'single Person' at the head of the Executive may 'in a very tolerable sense' be called supreme; and he is entitled to personal allegiance not, as supreme legislator, but as supreme executor of the law, made by a joint power of him with others.' The 'power of assembling and dismissing the Legislative' may be vested in the Executive by the Constitution, but, like all governmental powers, it is held in trust for the public, and abuse of it may justify the people in recourse to their ultimate rights. On the other hand, Locke suggests that the representation of the people in the Legislative may perhaps be amended at the discretion of the Executive, provided that such action is taken in good faith. Parliamentary reform by Order in Council was not so obviously remote from practical politics two centuries ago as it, is now; but what English princes down to Elizabeth had done in the way of creating new boroughs was not of encouraging example; and I do not know that Locke's suggestion was taken seriously by any one. The failure of Temple's plan to establish an efficient and independent Privy Council had in truth made it impossible beforehand. It is an important question, but a question of modern politics and far outside Locke's field of view, whether the latent capacities of the Privy Council may not yet be developed for the purposes of co-ordinating the resources of the Empire and giving the self-governing colonies an effective share -- all the more effective for not being too rigidly defined -- in the handling of affairs of common interest. Prerogative is identified by Locke with executive discretion, including some (he avoids saying how much) extraordinary discretion in emergencies; tempered, like legislative power, by the possibility of forfeiture. Selden's way with the supposed mysteries of prerogative(12*) was more straightforward and profitable; but Locke wanted to conciliate moderate royalists. It is obvious that Locke's position as to the reserved power of dissolving government is not formally unassailable. A Hobbist would say that a political power 'not as considered under any form of government' is a contradiction in terms, and is not only extra-legal but anarchical. Dissolve existing government, under whatever pretence, and you are remitted to the state of war which we set out to avoid at all costs. Locke's reply is indicated later (sections 224, 225). Its effect is that neither Hobbes's nor any other dialectic will make men tolerate an intolerably bad government. In extremity they will act on the belief that institutions perverted to ends other than the public good 'are so far from being better, that they are much worse, than the state of Nature, or pure Anarchy.' To this no further answer seems possible. Nowadays we should all agree with Locke as against Hobbes that government is the instrument and not the creator of society. We should also have something to say of the force of custom as a fly-wheel in the social machine, steadying and maintaining the common course of affairs notwithstanding technical or even substantial abeyance of legality. But of this Hobbes takes no account at all, and Locke only just touches upon it ('People are not so easily got out of their old Forms, as some are apt to suggest,' 223). The final chapter 'Of the Dissolution of Government' undertakes to show, but still under a transparent disguise of verbal generality, that the conduct of James II was in fact such a breach of 'the fundamental Appointment of the Society' as justified the people in exercising their ultimate right of self-preservation. It does not seem useful to follow Locke through the details of his propositions, as nothing short of a minute historical commentary would illustrate them to any material extent. The subsequent influence of Locke's Essay may be traced, as the President of Corpus has hinted, not only throughout the formal political philosophy of the eighteenth century, but in the doctrine received among English constitutional lawyers, and in the principles enounced by the promoters of American independence and the conductors of the French Revolution in its early stages. Blackstone substantially followed Locke, though he borrowed some ornamental phrases, not to be taken too seriously, from continental writers. He was prudent enough, indeed, to repudiate the assumption of mankind having actually lived in a state of nature, and proceeded to form society by a 'convention of individuals';(13*) and, writing as a lawyer, he was naturally more anxious than Locke to vindicate the Revolution settlement as not only justifiable but legal. It is none the less true that Bentham, when he sounded the note of destructive criticism in his 'Fragment on Government,' was really attacking Locke's theory of the State through Blackstone. Again, Blackstone's Commentaries were a vehicle of Locke's doctrine (though not the only one) to a numerous and public-spirited audience in the American colonies; and that doctrine was at the foundation of the several Bills of Rights of the American States, among which Virginia gave the first example, and of the Declaration of Independence itself. More than this, it has been shown by modern American scholars that these instruments became well known in France, and served as precedents for the Declaration of the Rights of Man.(14*) On the whole it seems that Locke had as much to do as Rousseau with the Principles of 1789, or more. The fatal domination of Rousseau's ideas belongs to a later stage. It would be idle to consider what Locke himself would have thought of his latest spiritual posterity. NOTES: 1. Preface to Observations Concerning the Original of Government (1679). 2. Preface to The Anarchy of a Limited or Mixed Monarchy (1679). 3. This word was restored by Dr Tonnies from Hobbes's MS. 4. Chap. vi, of 'Paternal Power'. 5. First treatise, chap. xi, 'Who Heir?' And see the Essay, ad. init. 6. First treatise, sections 139-142; see too sections 32-39. 7. Scherger, The Evolution of Modern Liberty (New York and London, 1904)), p. 130. 8. Leviathan, chap. xv. 9. There is a strange verbal parallel in that strangest of mediaeval vagaries the Mirror of Justice, the work, as I conjecture, of some eccentric foreign clerk settled in England, whose authorship and purpose are still mysterious. 'Ordinary jurisdiction has every one who is not deprived of it by sin(!), for every one may judge his neighbour according to the holy rules of right.' Book IV, chap. ii. 10. This argument is developed in chap. vii. 11. D. 9. 2. ad 1. Aquil. 13, pr. 12. Table Talk, s.v. 13. Comm. i. 47; as to the ultimate remedy of dissolving government, ib. 162; Blackstone seems to have thought 'theoretical writers' a term peculiarly apt to include Locke; as to the Convention of 1688, ib. 152. 14. See Parts iii and iv of Scherger, The Evolution of Modern Liberty.