Having set out what constitutes a civil society and how civil societies are formed, Locke sets about discussing what why would any man in a state of nature join a civil society, and what is the purpose of end of that civil society.
He reminds us that in a state of nature every man has the right and power to enforce the law of nature. That is, no one has the right to violate anyone else’s life, liberty or property. Each man is the legislator, executor and judge of the law as it pertains to himself, his family and his neighbors. For if anyone violates the law of nature, he is an enemy of all mankind. Why would anyone give up this empire. The answer is simply that it is a precarious existence. Locke gives three particulars.
Firstly, the is absence of a settled known law. There is no common measure between all men. Even though the law is evident to all rational creatures, Romans 2:14
“for when the gentiles which have not the Law, having not the Law do by nature the things contained in the Law, they having not the Law, are a Law unto themselves.”,
most men chose not to study it. Furthermore, they will be less apt to consider it binding upon themselves. Therefore, for example, there is likely to be disagreement as to what constitutes theft or murder.
Secondly, they lack an objective judge. Men, being men, are likely to be biased in their judgment; harsh to those other than themselves, or outside their family; and lenient themselves and to those within their family. When it comes to punishment, passion may carry them to far.
Thirdly, they may lack the power to carry out a just sentence. The perpetrator will seldom fail to resist the punishment. The resistance makes the execution of justice and punishment dangerous and potentially damaging to those who execute it.
An excellent example of this is found in the story of Jeremiah Johnson. This story was made into a movie in the 1970s. Johnson went into the wilderness of the American west in the 1800s. Though technically within the jurisdiction of the United States of America, he lived peaceably among the Indians in a relative state of nature. At one point, he was ordered to guide a Cavalry company through an Indian graveyard. Not a major issue from a western perspective, but for the Indians a capital offense (issue 1). The Indians passed a death sentence upon Johnson. They executed his wife and child (issue 2). They spent the next few years trying to execute him, but he became renowned for his prowess in his ability to kill the Indians first (issue 3).
Thus mankind, notwithstanding the all the privileges of being in a state of nature are consistently driven into forming civil societies. The irregularity and uncertainty of every man exercising the power of punishing the transgression of the laws of nature, together sheer inconveniences relative to the events of nature itself make living under the established laws and sanctuary of an established government preferable. This makes mankind willing to give up the power of punishment by their own authority to those authorities established by them for that purpose. In this we see the origin of the legislative, executive and judicial powers.
Here we see that men have two fundamental powers:
“The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature: by which law, common to them all, he and all the rest of mankind are one community, make up one society, distinct from all other creatures. And were it not for the corruption and vitiousness of degenerate men, there would be no need of any other; no necessity that men should separate from this great and natural community, and by positive agreements combine into smaller and divided. The other power a man has in the state of nature, is the power to punish the crimes committed against that law. Both these he gives up, when he joins in a private, if I may so call it, or particular politic society, and incorporates into any common-wealth, separate from the rest of mankind.”Paragraph 128
Therefore, when men give up the power and independence to protect their life, liberty and property in the state of nature it can only be with the intention that that within the civil
society that the protection will be improved.
“But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good;”Paragraph 131
Or to state it directly, the legislative can have no legitimate power to make a law that puts any member of the society in a lesser state than the state of nature. The concept of the common good becomes the greatest possible restriction on the power of government.
Now when we read Article 1 of The Constitution of the State of New Hampshire we see a complete statement. Article l”
All men are born equally free and independent; Therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.
All men are born equally into a state of nature to whatever degree it may exist; therefore, legitimate government derives its power from the power those within its jurisdiction delegate to it, it can have no power that they would not have in a state of nature, it exists only while they consent to it, and it has no power that would put any member in a state less than their state of nature. We see the concept of the common good expressed here as general good, in Article 10 as the common benefit, and in The Constitution for United States of America as the general welfare and as public good or public welfare in some of the other State Constitutions. The common construction and analogy is evident. We also see this some for of these terms expressed in the Constitutions of Maryland, Massachusetts, New Jersey, New York, North Carolina, Pennsylvania, Virginia. We can see that the Constitution of the State of New Hampshire clearly identifies itself as a Lockean social contract, and that many of the other States and the general government do as well, though less explicitly. The whole Constitution of the State of New Hampshire can be considered to be completely expressed in Article 1. If that were the only Article of the Constitution, it would be no less complete. That that point, in incorporates the whole of Lockes Second Treatise on Government a commentary as to its meaning. The 41 Articles that follow in the Bill of Rights and the whole of the Form of Government become a list of particulars giving meaning and express limitations, all of which are consistent with Article 1 and the remaining Chapters of Locke’s Second Treatise.
Paragraph 131 concludes with the following which will lead us to further discussion:
And so whoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people.
The concept of the common good (general good, common benefit, general welfare) becomes the acid test of legislation. It was intended as the greatest restriction upon government. The fundamental law of nature prohibits one person from stealing from another. Therefore, he cannot deputize the government to do it for him. In more general terms, in the state of nature no person can be forced to give charitably to another; therefore, the government cannot be used as an instrument of conscripted charity.
The Constitution of the State of New Hampshire, Bill of Rights, Article 12 states in part
“Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and
property; he is therefore bound to contribute his share in the expense of such protection, and to yield his
personal service when necessary.”
Is it therefore legitimate to enact a tax for the erection of courts and jails, and the compensation of police and judges? The answer is an unequivocal yes. In fact, it might even be considered a mandate. Is it legitimate enact a tax for the express purpose of giving it to a person that the owner of the money would not have given to freely, the answer is an equally strident no. In fact
one could consider the general welfare stipulation an express prohibition on government “charity”. Thus we see that what was intended as the greatest restraint on government, through hapless ignorance, or deliberate deception (the reader may choose) has been perverted into the license for the greatest ills of our civil society.