Locke’s second Chapter is on the concept state of nature. Locke then states that having defined political power, one must understand the it from the original from which it is derived. That is the ideal state of nature. Locke’s ideal state of nature is important because it is his baseline, that reference point against which each man’s current condition must be measured.
In his original state, the earth being sparsely populated, it is easy to conceive that a man might move to a place where there was no other whom he must consider. That is to be in
“a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.” In the original, this state is reciprocal, and neither does he have any power over another. We see this idea established in the Constitution of the State of New Hampshire and many of our sister States, “All men are born equally free and independent;”
Here we have the first insertion of Christian doctrine. Locke states that while this is a state of liberty, it is not a state of license. Though the man is at liberty to dispose of his person and property as he sees fit, he is not at liberty to destroy himself, nor any other creature, except that there is a nobler use than its bare preservation. Though he has perfect power to use the animal for food or clothing, he has no power to wantonly destroy it.
“The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions; for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign Master, sent into the world by His order and about His business; they are His property,”
Though man has full authority to go where he wants and generally do what he wants he is not free to abuse himself or destroy himself, because he belongs to God.
The law of nature being that everyone has control of their person and property, the reciprocal is that they have no power over any other’s person or property. There could be no law of nature except that there be someone to execute that law; to preserve the innocent and punish the offender. The law of nature being for the preservation all people; therefore, the execution of that law is put into the hands all people or more particularly into the hands of each and every person. Thus one man gains power over another, but not absolute or arbitrary power, but only reparation and restraint. In transgressing, the transgressor declares themselves to live by a law other than reason and common equity. The person who transgresses the law of nature becomes a danger to mankind. Every person has a power to preserve mankind and destroy that which is noxious to it.
This power is not absolute, but to punish to the degree that he will repent from doing it again and others will be dissuaded from similar offenses. In addition to the transgression of the law of nature which is an injury to all mankind, there is a particular injury to the victim, for which the victim has the right to seek reparation. Every person who agrees with the injured party has the power to join with him in obtaining his reparation. We see two distinct powers: the first of punishment which be belongs to every man, since law transgressed offends everyone; the second reparation which belongs only to the injured party. The injured party has the right to appropriate from the goods or services of the offender by the law of self-preservation, but only to the extent that their self-preservation was jeopardized.
There comes a great controversy as to whether there is in fact a state of nature. Locke argues that the rulers of all independent nations are in such a state. Furthermore, Locke holds that all are in a state of nature until by action (or inaction) they consent to be being under the governance of another. However, we must concede that while well into the twentieth century it was possible to move to a place where even if government claimed jurisdiction, no effective jurisdiction existed, today such a place is hard to find. However, this ideal state of nature is still the benchmark against which mans condition in society is to be measured because it is universal and uniform. The man in the freest nation, and the worst tyranny have the same ideal state of nature.
It is important to note that most if not all tyrannies result from a departure from fundamental principles. The Constitution of the State of New Hampshire provides that every person under the jurisdiction of the State has the right to have their injuries prosecuted by the State, the Bill of Rights Article 14 (that power of executing natural law is delegated to the State). It then creates specific qualifications for investigation, adjudication and punishment of crimes and protections of the accused (Bill of Rights Articles 15, 17 and 19), and it limits punishment to that which is necessary to prevent future offenses (Bill of Rights, Article 18). It provides that all criminal indictments in the name of the State (Form of Government, Articles 87 and 88). Reparation of injuries is controversies between two or more persons are provided for under the Bill of Rights Article 20, in which a jury determines what the right compensation for the injury is. This echoes Locke when he stated those who agree with the injured party have the power to join with them in obtaining the reparation.
Here is the tyranny. It has become popular for States to seek “civil forfeiture” in which the State receives compensation for the injury to an individual. But, we learn from Locke the common power exists only in the punishment for the crime, and in assisting the injured parties in obtaining reparation. Furthermore, we see no hint in any Constitution suggesting a transference of reparation from the individual to the State. We also see a practice where despite there being no conviction for an offence, injured parties seek and obtain reparation for the offense. This becomes State supported theft where, property is seized for an alleged crime, that the State in its delegated power to punish has never proved. It should never be possible to obtain reparation for a criminal injury that was never proved. The State should never be a recipient of reparations.
A concept which has been lost in the latter 20th century is that of citizen’s arrest. As Locke stated, every person who agrees that a violation of the law of nature exist has the power to apprehend the perpetrator. It is the indictment and punishment of the perpetrator that has been delegated to State. Though no statute exists to curtail citizen’s arrest, those who enjoy the delegated power of arrest are jealous of sharing that power.
Most importantly, the state of nature only allows for punishment of violations of the law of nature, injury or a person or damage to or theft of their property; no person has power over the person or property of another. Since no person has power over the person or property of another, that power cannot be delegated to the State. Therefore, there can be no crimes of behavior while a person is upon or within their property. Only when ventures on to the property of another or into the common property can behavior such as dress or inebriation be an issue, and in the common property only when there is another whose equal right to enjoy the common property is infringed. It can be a crime to relieve oneself in another’s view, but not if no one else is present (as long you clean up after yourself).