Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)

Подождите немного. Документ загружается.

The constitutionalism of John Locke 279

actual harm, it was ‘lawful for me to treat him as one who has put himself

into a state of war with me, i.e. kill him if I can’.

From one perspective, then, Twotreatises is evidently the work of an

extremist. Locke had inherited a stress upon adjudication, not least in reg-

ulating the king’s use of his discretion, but he removed the right to judge

both from the lawyers and from parliament and gave it to the individual’s

reason. His book has survived the objections to such a theory because it

solved a more important problem: he gave a philosophical account of con-

stitutionalist expectations. In particular, he found a novel means of justify-

ing the established slogan that protection of ‘lives, liberties and estates’ (the

rights that he signiﬁcantly described as ‘property’) was the whole purpose of

the legal order. As we have seen, the original justiﬁcation for the priority of

property was that this preference was in fact embedded within the practice

of the common lawyers; when common law was treated as omnicompe-

tent, the privileges attributed to an ‘inheritance’ became attached to all the

rights of subjects. But this transition had relied on Coke’s account of arti-

ﬁcial reason. In Locke’s generation, the Cokean view was virtually extinct,

and Englishmen who thought about these questions regarded the law as a

system of rules that had been framed by popular consent. They thus agreed

with Pufendorf and Grotius that property was ultimately founded upon

contract. But if property and kingship had the same contractual basis, then

it was very hard to see why contracts that created rights to private prop-

erty should have interpretative precedence over those contracts that created

monarchs.

Locke was forced to ﬁnd an answer to this problem by his antagonist

SirRobert Filmer. Filmer had rightly pointed out that a pre-political con-

tract abolishing community of goods would have required the consent of

every individual human being. Locke tacitly accepted this objection. The

question that he set himself was ‘how men might come to have a prop-

erty in several parts of that which God gave to mankind in common, and

that without any express compact of all the commoners’.

His detailed

answer started out from a theology: ‘men being all the workmanship of

one omnipotent and equally wise maker; all the servants of one sovereign

master, sent into the world by his order and about his business, they are his

property, whose workmanship they are, made to last during his, not one

another’s pleasure’.

An essay concerning human understanding tells us that

his abortive moral philosophy would have rested on a similar assumption:

‘the idea of a supreme Being, inﬁnite in power, goodness, and wisdom,

Ibid., ii §18.

Ibid., ii §25.

Ibid., ii §6.

280 Epilogue

whose workmanship we are, and on whom we depend; and the idea of our

selves as understanding, rational beings’.

Locke seems to have thought

that it followed from these notions that we are charged, as individuals,

with making use of industry and reason: God gave the world, in a notori-

ous phrase, to ‘the use of the industrious and rational’.

If rational, industrious beings were to ﬂourish, or even survive, God

must have provided a method by which a given individual could make a

given consumable ‘so his, i.e.apart of him, that another can no longer

have any right to it’.

As labour is ‘the unquestionable property of the

labourer’, Locke drew the conclusion that ‘no man but he can have a

right to what that is once joined to, at least where there is enough and

as good left in common for others’.

Once separated from the common

stock, such labour-generated property might pass into the hands of wealthy

idlers, but all such property retained the status of a divinely chosen way

of giving human beings sustenance. The creation of the Lockean mag-

istrate does not involve the transfer of control of property, but only of

the right to judge and punish infringements of that property by others;

that is why, when a government ceases to exist, the rights it regulates sur-

vive unaltered. There is, of course, a problem, which Locke never squarely

faced, raised by the need to ﬁnd a clear distinction between the regula-

tion of private ownership and actions that appear to over-ride it; he did

permit taxation to pay for the expenses of ‘protection’,

and he occasion-

ally implied, conventionally enough, that positive laws should promote the

common good. But Locke’s idea of common or public good appears to

be a mere agglomeration of individual private interests; when he says, for

example, that ‘the power of the society, or legislative constituted by them,

can never be supposed to extend farther than the common good; but is

obliged to secure every one’s property’, he seems to have seen no tension

between this common good and the entrenchment of proprietors.

Secu-

rity of property was what Locke knew as ‘freedom’, for ‘law in its true

notion, is not so much the limitation as the direction of a free and intel-

ligent agent to his proper interest’;

thus law’s object was not ‘to abolish

or restrain, but to preserve and enlarge freedom’, understood as freedom

‘fromrestraint and violence from others’.

Lockean law does nothing but

police the boundaries behind which rational agents pursue what they ratio-

nally want; it is exhausted by its mechanisms for helping the possessor to

exclude.

Locke, Essay, iv iii 18.

Locke, Tw otreatises, ii §34.

Ibid., ii §26.

Ibid., ii §27.

Ibid., ii §140.

Ibid., ii §131.

Ibid., ii §57.

The constitutionalism of John Locke 281

This characterisation of some aspects of Locke’s work yields no con-

clusive picture of his motives; it does not, for example, show that he had

democratic inclinations or that he consciously set out to justify his class’s

privileges. It does, however, cast some light on his presuppositions. One

way of thinking about Locke’s achievement would be to say that he had put

a constitutionalist politics on the basis of a rationalist religion. For Locke,

as for all thinkers in the rationalist tradition that ultimately stemmed from

Richard Hooker, the voice of reason was the voice of God. But Hooker’s

legacy was ambiguous. Epistemologically speaking, his system was extraor-

dinarily individualist; he believed that every kind of moral knowledge,

including the ﬁrst ‘motive’ to believe in revelation, would be accessible,

in principle, to an unaided individual. Politically speaking, of course, he

was authoritarian; in the wide sphere of things apparently ‘indifferent’, he

thought that it was ultimately for the magistrate to say what was (and was

not) rational. Except in his earliest writings (which stressed the govern-

ment’s power in things indifferent), Locke emphasised the ﬁrst strand of

this dual legacy.

An essay drew attention to the fact that the word ‘reason’ had a number of

meanings, but that his philosophical attention was devoted to ‘a faculty in

man’.

This faculty played much the role a puritan might have attributed

to conscience.

If weight is given to its deﬁnition as ‘natural revelation,

whereby the eternal father of light, and fountain of all knowledge com-

municates to mankind that portion of truth, which he hath laid within

the reach of their natural faculties’,

then Locke’s near-anarchist individ-

ualism becomes more readily intelligible. A God who willed his creatures,

as individuals, to be both rational and industrious, obliged them to secure

the property that was to be their means of preservation, and secondarily to

secure the property of others. Because we have no right to harm ourselves,

‘reason . . . teaches all mankind, who will but consult it, that being all equal

and independent, no one ought to harm another in his life, health, lib-

erty, or possessions’.

As ‘freedom from absolute, arbitrary power’ was ‘so

necessary to, and closely joined with a man’s preservation, that he cannot

part with it, but by what forfeits his preservation and life together’, there

was a duty to avoid enslavement, if only because ‘he that cannot take away

his own life, cannot give another power over it’.

As Locke additionally

held that wilful removal of ‘any part of the subjects’ property, without their

Locke, Essay, iv xvii 1.

Acrucial passage on the ‘appeal to heaven’ stresses that Locke is ‘judge in my own conscience’ of

whether resistance is permissible (Locke, Twotreatises, ii §21).

Locke, Essay, iv xix 4.

Locke, Tw otreatises, ii §6.

Ibid., ii §23.

282 Epilogue

own consent ...would be in effect to leave them no property at all’, he

had conferred on every right to private property the backing of the duty to

self-preservation.

There is much to be said for a reading of this theory that emphasises

its religious basis. Though some might place less stress on the Hooke-

rian character of Locke’s exaggerated faith in reason, few scholars would

doubt that assumptions about God are necessary to his argument. But one

advantage of approaching Locke through English constitutionalist think-

ing is that it makes available an equally helpful perspective. In claiming for

the details of English property rights the privileges of the law of nature,

Locke was simply reasserting what Sir Edward Coke believed; conversely,

when he extended the concept ‘property’ to cover lives and liberties as well

as mere ‘estates’, he was uncritically taking over the idea that personal liber-

ties are an ‘inheritance’. This is not to maintain that he held Coke’s beliefs

for Coke’s reasons – only that Cokean beliefs supplied what modern writers

would probably want to call his ‘intuitions’.

Above all, when he took it for granted that an individual’s labour is ‘the

unquestionable property of the labourer’, the obviousness of the idea that

we can own our labour derived from constitutionalist sources. So did the

obviousness of the claim (to be found in An essay’s discussion of a demon-

strable ethics), that ‘where there is no property, there is no injustice, is

aproposition as certain as any demonstration in Euclid . . . the idea of

property being a right to any thing; and the idea to which the name injus-

tice is given being the invasion or violation of that right’.

If Locke was

much more conﬁdent than any of his precursors that natural law’s content

consisted in property-like rights (that is, in private spaces from which all

non-proprietors are excluded), he owed his conﬁdence in the metaphor

to a tradition that believed that power, where legitimate, was essentially

judicial. Thus the exclusiveness of property in labour could not supply an

independent basis for the exclusive character of property in general; Locke’s

premise was a borrowing from the very practices his argument set out to

justify.

Ibid., ii §139.

Locke, Essay, iv iii 18.

Bibliography

This bibliography lists only sources referred to in the text or in the notes. As in

book titles in the text (to aid computer searching), spelling has been respected,

but other accidentals have been modernized. If no place is supplied, printed works

were published in London.

PRIMARY SOURCES

manuscript

Bodleian Library, Oxford

Laud Miscellaneous MS 616 Roger of Waltham’s Compendium

Tanner MS 74 Correspondence about Synod of Dort

British Library, London

Additional MS 14,030 Report on Coke’s writings

Additional MS 29,546 Correspondence about prophesyings

Additional MS 32,092 Doddridge’s ‘Methode’

Additional MS 38,492 Puritan reaction to Hampton Court

Cotton MS Cleopatra E 6 ‘Collectanea satis copiosa’

Egerton MS 3376 Morrice on prerogative

Hargrave MS 27 Materials relating to impositions

Harleian MS 849 Plowden’s succession tract

Harleian MS 4990 Hales’s ‘Commendation of laws’

Harleian MS 5220 Doddridge on the prerogative

Harleian MS 6234 ‘Itinerarium and Windsor’

Harleian MS 6686 Coke’s notebook account of Darcy v. Allen

Lansdowne MS 68 Cartwright response to interrogatovies

Lansdowne MS 213 Kynaston’s ‘True presentation’

Royal MS 18 A 50 Henrician proposal for codiﬁcation

Stowe MS 177 Benn’s Treatise on chancery

283

284 Bibliography

printed

Abbot, Robert, De gratia et perseverantia sanctorum (1618).

An abstract, of certaine acts of parliament: of certaine her Majesty’s injunctions: of

certaine canons, constitutions, and synodalless provinciall (1584).

The acts of the parliaments of Scotland, 12 vols. (Edinburgh, 1814–75).

Acts of the Privy Council,new series, ed. J. R. Dasent, 32 vols. (1890–1907).

Aegidius Romanus, The governance of kings and princes: John Trevisa’s Middle English

translation of the De regimine principum of Aegidius Romanus, ed. D. C. Fowler,

C. F. Briggs, and P. G. Remley (New York, 1997).

An answer to a printed book intituled Observations (1642).

An answer to the Lord Digbies speech in the House of Commons (1641).

Aquinas, Thomas, Opuscula omnia necnon opera minora, ed. J. Perrier, 3 vols. (Paris,

1949).

The Armbrugh papers, ed. C. Carpenter (Woodbridge, 1998).

Aston, Sir Thomas, The Short Parliament (1640) diary of Sir Thomas Aston, ed.

Judith D. Maltby, Camden Society, 4th series 35 (1988).

Aylmer, John, An harborowe for true and faithful subjects (Strasburg, 1559).

Bacon, Francis, The works of Francis Bacon, ed. J. Spedding, R. L. Ellis, and D. D.

Heath, 14 vols. (1857–74) [NB. Spedding, Life and letters is volumes viii–xiv

of this publication.]

Baker, J. H. (ed.), The reports of Sir John Spelman, 2 vols., Selden Society 93–4

(1977–8).

Readings and moots at the Inns of Court in the ﬁfteenth century,vol. ii,Selden

Society 105 (1989).

An introduction to English legal history, 3rd edn (1990).

Reports from the lost notebooks of Sir James Dyer, 2 vols., Selden Society 109–10

(1993–4).

Reports of cases by John Caryll, 2 vols., Selden Society 115–16 (1998–9).

Bancroft, Richard, A sermon preached at Paules Cross the 9 of Februarie (1588/9).

Daungerous positions and proceedings published and practised within the iland of

Britaine (1593).

Barlow, William, The summe and substance of the conference (1604).

Barnes, Robert, A supplicatyon made by Robert Barnes (1531).

A supplication unto the most gracyous prince H. the viii (1534).

Bayne, C. G. and Dunham, W. H. (eds.), Select cases in the council of Henry VII,

Selden Society 75 (1956).

Bekinsau, Joannes, De supremo et absoluto regis imperio (1546).

Bilson, Thomas, The true difference between Christian subjection and unchristian

rebellion (Oxford, 1585).

Bodin, Jean, Method for the easy comprehension of history,tr. Beatrice Reynolds

(New York, 1945).

The six bookes of a commonweale, ed. K. D. McRae (Cambridge, MA,

1962).

On sovereignty: four chapters from the Six books of the commonwealth, ed. J. H.

Franklin (Cambridge, 1992).

Bibliography 285

The boke of justyces of peas (1506).

The Boke of Noblesse: addressed to King Edward IV on his invasion of France in 1475,

ed. J. G. Nichols (Roxburghe Club, 1860).

Botero, Giovanni, The travellers breviat (1601).

Bowyer, Robert, The parliamentary diary of Robert Bowyer 1606–7, ed. D. H. Willson

(Minneapolis, MO, 1931).

Bracton on the laws and customs of England, ed. G. E. Woodbine, tr. S. E. Thorne,

4 vols. (Cambridge, MA, 1968).

Bradford, John, The writings of John Bradford, M.A., ed. A. Townsend, 2 vols.

(Cambridge, 1848–53).

Bradshaw, William, Puritanism and separatism: a collection of works by William

Bradshaw, ed. R. C. Simmons (1972).

Bray, Gerald (ed.), Documents of the English Reformation (Cambridge, 1994).

The Anglican canons: 1529–1947, Church of England Record Society 6

(Woodbridge, 1998).

Tudor church reform: the Henrician canons of 1535 and the Reformatio legum eccle-

siasticarum, Church of England Record Society 8 (Woodbridge, 2000).

A briefe examination for the time of a certain declaration lately put in print in the

name and defence of certain ministers in London (1566).

A briefe and perfect relation of the answeres and replies of Thomas earle of Strafford

(1647).

Britton (1540).

Brooke, Sir Robert, La graunde abridgement (1573).

Buchanan, George, De jure regni apud Scotos (Edinburgh, 1846).

Burges, Cornelius, The ﬁrst sermon preached to the honourable House of Commons

now assembled in parliament at their publique fast Novemb. 17 1640 (1641).

Burnet, Gilbert, The memoires of the lives and actions of James and William Dukes

of Hamilton and Castleherald (1677).

Burton, Thomas, The diary of Thomas Burton, ed. J. T. Rudd, 4 vols. (1828).

Calendar of letters, despatches, and State Papers relating to the negotiations between

England and Spain, 11 vols. (1862–1916).

Calendar of state papers and MSS relating to English affairs existing in the archives of

Venice, ed. Rawdon Brown, 6 vols. (1864–84).

Calendar of state papers relating to Scotland and Mary, Queen of Scots 1547–1603, 13

vols. (Edinburgh, 1898–1969).

Camden, William, Britannia, sive ﬂorentissimorum regnorum Angliae, Scotiae,

Hiberniae et insularum adjacentium ex intima antiquitate chorographicadescrip-

tio (1586).

Britannia, sive ﬂorentissimorum regnorum Angliae, Scotiae, Hiberniae et insularum

adjacentium ex intima antiquitate chorographica descriptio (1607).

Britain, or a chorographicall description of the most ﬂourishing kingdomes, England,

Scotland, and Ireland, and the islands adjoining, out of the depth of antiquitie,

tr. Philemon Holland (1610).

Cardwell, Edward (ed.), Synodalia: a collection of articles of religion, canons, and

proceedings of convocations (Oxford, 1842).

286 Bibliography

Cartwright, Thomas, Cartwrightiana, ed. A. Peel and L. H. Carlson (1951).

A catechism written in Latin by Alexander Nowell Dean of St Paul’s together with

the same catechism translated into English by Thomas Norton, ed. G. E. Corrie

(Cambridge, 1853).

Cavendish, William, earl of Newcastle, A declaration of the right honourable the

earle of Newcastle his excellency &c. in answer of six groundless aspersions (1643).

Cecil, William, The execution of justice in England for maintenance of publique and

Christian peace (1583).

A collection of state papers . . . left by William Cecill Lord Burghley, ed. S. Haynes,

2 vols. (1740).

Chamberlain, John, The letters of John Chamberlain, ed. N. E. McClure, 2 vols.

(1939).

Chillingworth, William, The religion of Protestants a safe way to salvation (Oxford,

1638),

Cholmley, Sir Hugh, The memoirs of Sir Hugh Cholmley (1787).

Chrimes, S. B. and Brown, A. L., Select documents of English constitutional history

1307–1485 (London, 1961).

Cicero, De republica: De legibus, ed. and tr. C. W. Keyes (1928).

Clarke, Samuel, A general martyrologie containing a collection of all the greatest

persecutions which have befallen the church of Christ, from the creation to our

own times, 3rd edn (1677).

Cobbett, W. and Howell, T. B., A complete collection of state trials, 33 vols. (1809–26).

Coke, Sir Edward, The third part of the institutes of the laws of England (1644).

The reports of Sir Edward Coke, Knt, ed. J. H. Thomas and J. F. Fraser, 6 vols.

(1826).

Commons debates 1621, ed. Wallace Notestein, F. H. Relf, and Hartley Simpson,

7 vols. (New Haven, CT, 1935).

Commons debates for 1629, ed. Wallace Notestein and F. H. Relf (Minneapolis,

1921).

Commons Journal. Journals of the House of Commons,vols. i–iv (1742).

Cooper, Thomas, An admonition to the people of England (1589).

Cornwallyes, Sir William, Essayes by Sir William Cornwallyes, ed. D. C. Allen

(Baltimore, 1946).

Cosin, John, The works of the right reverend father in GodJohnCosin, 7 vols. (Oxford,

1845).

The correspondence of John Cosin, D.D., Surtees Society 52, 55 (1869–70).

Cosin, Richard, An apologie for sundrie proceeding by jurisdiction ecclesiastical (1593).

Cotton, Sir Robert, A short view of the long life and raign of Henry the third

(1627).

Cowell, John, Institutiones iuris Anglicani, ad methodum et seriem institutionum

imperialium compositae (1605).

The interpreter (Cambridge, 1607).

Craig, Thomas, Ius feudale, ed. James Baillie (Edinburgh, 1732).

Cranmer, Thomas, The works of Thomas Cranmer, ed. Edmund Cox, 2 vols.

(Cambridge, 1846).

Bibliography 287

Cromwell, Thomas, Life and letters of Thomas Cromwell, ed. R. B. Merriman,

2 vols. (Oxford, 1902).

Culpeper, Cheney, ‘The letters of Sir Cheney Culpeper, 1641–57’, ed. M. J.

Braddick and Mark Greengrass in Camden Miscellany 23, Camden Society

5th series 7 (1996).

Cyvile and uncyvile life (1579).

Davidson, John, D. Bancroft’s rashnes in rayling against the Church of Scotland

(Edinburgh, 1590).

Davies, Sir John, Le primer report des cases et matters en ley resolves et adjudges en

les courts del roy en Ireland (Dublin, 1615) The question concerning impositions

(1656).

A declaration of the parliament of England, expressing the grounds of their late pro-

ceedings (1649).

Dering, Sir Edward, A collection of speeches made by Sir Edward Dering (1642).

Digby, Lord George, The speeches of the Lord Digby in the high court of parliament

concerning grievances and the triennial parliament (1641).

The lord George Digby his last speech against the earle of Strafford (1641).

A discourse of the commonweal of this realm of England, ed. M. Dewar (Char-

lottesville, VA, 1969).

A discourse upon the exposicion and understandinge of statutes, ed. S. E. Thorne (San

Marino, CA, 1942).

Diversite de courtz (1523).

Dow, Christopher, Innovations unjustly charged upon the present church and state

(1637).

Dudley, Edmund, The tree of commonwealth,ed. D. M. Brodie (Cambridge, 1948).

Dyer, Sir James, Les reports des divers select matters et resolutions des reverend judges

et sages del ley (1688).

Eliot, Sir John, De jure majestatis or political treatise of government and the letter-book

of Sir John Eliot, ed. A. B. Grosart, 2 vols. (1882).

Elton, G. R., The Tudor constitution: documents and commentary, second edn

(Cambridge, 1982).

Elyot, Sir Thomas, The Boke named the Governour, ed. H. H. S. Croft, 2 vols.

(1880).

Erasmus, Desiderius, The correspondence of Erasmus,vol. viii,tr. R. A. B. Mynors

(Toronto, 1988).

Falkland, Lucius Cary, Viscount, The speech or declaration of the Lord Falkland to

the Lords of the Upper House (1641).

A speech made to the House of Commons concerning episcopacy (1641).

Ferne, John, The blazon of gentrie (1586).

Field, Nathanael, Some short memorials concerning the life of that reverend divine Dr

Richard Field (1716/17).

Field, Richard, A learned sermon preached before the king at Whitehall (1604).

Of the church (1606).

Fiennes, Nathaniel, A speech of the honourable Nathaniel Fiennes in answere to the

third speech of the Lord George Digby (1641).

288 Bibliography

A second speech of the honourable Nathaniel Fiennes (1641).

Fitzherbert, Anthony, Magnum abbreviamentum, 3 vols. (1514–17).

The new natura brevium (1652).

Formularies of faith put forth by authority during the reign of Henry VIII, ed.

C. Lloyd (Oxford, 1856).

Fortescue, Sir John,Sir John Fortescue, Knt, his life, works and family history, ed.

Thomas Fortescue, Lord Clermont, 2 vols. (1869).

The governance of England: otherwise called The difference between an absolute

and limited monarchy, ed. Charles Plummer (Oxford, 1885).

De laudibus legum Angliae, ed. S. B. Chrimes (Cambridge, 1942).

Foster, Elizabeth Read (ed.), Proceedings in parliament 1610, 2 vols. (New Haven,

CT, 1966).

Fox, Edward, The true dyfferens betwen ye regall power and the ecclesiasticall power,

tr. Henry Lord Stafford (1548).

Fraunce, Abraham, The lawyer’s logike (1588).

Fulbecke, William, A direction or preparative to the study of the lawe (1600).

A parallele or conference of the civill law, the canon law, and the common law of

this realme of England (1601).

Fuller, Thomas, Church-history of Britain (1655/6).

Gardiner, Stephen, The letters of Stephen Gardiner, ed. J. A. Muller (Cambridge,

1933).

Gardiner, S. R. (ed.), Constitutional documents of the puritan revolution, third edn

(Oxford, 1906).

Gilson, J. P. (ed.), ‘A defence of the proscription of the Yorkists’, English Historical

Review 26 (1911), 512–25.

Glanvill, The treatise on the laws and customs of the realm of England commonly called

Glanvill, ed. G. D. G. Hall (Oxford, 1993).

Goodman, Geoffrey, The court of James I, ed. J. S. Brewer (1839).

The great charter called in latyn Magna Charta with divers olde statutes (?1540).

Grindal, Edmund, The remains of Edmund Grindal D.D., ed. William Nicholson

(Cambridge, 1843).

Hacket, John, Scrinia reserata: a monument erected to the great deservings of John

Williams (1691).

Hake, Edward, Epieikeia: a dialogue on equity in three parts, ed. D. E. C. Yale (New

Haven, CT, 1953).

Hakewill, William, The libertie of the subject against the pretended power of imposi-

tions (1641).

Hales, John, Golden remains of the ever memorable Mr John Hales (1673).

Hall, Edward, Hall’s chronicle (1809).

Hall, Joseph, Episcopacie by divine right asserted (1640).

Hartley, T. E. (ed.), Proceedings in the parliaments of Elizabeth I, 3 vols. (1981–95).

Hatton, Sir Christopher, Atreatise concerning statutes, or acts of parliament: and the

exposition thereof (1677).

Herbert, George, A priest to the temple (1652).