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John Locke and Our Constitution

David Conway, November 2005

Locke on Nationhood, Englishness and Liberty

‘An Englishman, a Lover of Liberty, Citizen of the World is desirous of having the honour to deposit this book in the Library of Christ College Cambridge’. So runs the self-description given by the anonymous donor of a copy of the Locke’s Two Treatises of Government in a letter he wrote in 1764 to accompany his gift. What made this copy so special was that on it, in his own meticulous handwriting, the author had added numerous corrections and emendations. It was on this hand-corrected copy of the second edition that Peter Laslett drew in editing what has, since its publication in 1960, become the third and authoritative edition of Locke’s work. Locke published this work anonymously in 1690 in the immediate wake of the great constitutional upheaval that England had undergone just two years before. Locke had composed it, however, well before that date and as a call for just such an upheaval. The first treatise is given over to a refutation of the now long-moribund doctrine of the divine right of kings, a doctrine that had been revived in defence of James ll by Robert Filmer. So devastating was Locke’s critique, that the doctrine has never recovered from it. In consequence, the first treatise no longer receives anything like as much critical attention as does the second treatise, whose subject matter is indicated by its sub-title, ‘An Essay concerning the True Original, Extent, and End of Civil Government’. As Locke used the term ‘civil’ in this context, he meant ‘political’. Civil government, therefore, contrasts with both military rule and ecclesiastical government. In this second treatise, Locke delineates in magisterial tones and a timeless prose the basic institutional contours and rationale of a free society. In terms of both subject matter and manner of treatment of that subject matter, Locke’s second treatise remains of abiding philosophical interest. . The anonymous donor of Locke’s work was John Hollis, an ardent eighteenth century admirer of Locke’s. The three-fold appellation by which Hollis described himself applied with no less accuracy to the author of the work he donated. This becomes apparent from the opening sentence of its preface. Here, Locke explains his motive in writing and publishing the work. Reader, thou hast here … a discourse which, I hope… [is] 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 government, 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 brink of ruin.[i] This opening sentence discloses the author of the Two Treatises to be an Englishman, and, consequently, a lover of liberty, as well as a cosmopolitan. Locke also let it be known in this sentence that he considers his nation distinguished from all others by the strength of its love of liberty shown by its preparedness to fight to retain its beloved possession. He also reveals his cosmopolitanism by voicing concern to exonerate the action of his compatriots in having deposed their king before the court of civilised world opinion. Locke also manages in this first sentence to assert the central thesis of the work – viz. that the basis of legitimate government resides in the consent of the governed. Locke invites his readers to concur that, since only the English possess sovereigns with titles deriving from this source, only their form of government possesses any moral legitimacy. He leaves it to members of other nations to draw the appropriate inferences. Locke repeats the claim that the English are distinguished from other nations by their strength of love of liberty in the opening sentence of the first treatise. Locke open the treatise by expressing his astonishment how a compatriot could have been brought to assert a doctrine that is so at variance with English national character as that of the divine right of kings. ‘Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation that ‘tis hardly to be conceived that an Englishman, much less a gentleman, should plead for it’[ii]. Precisely which of his compatriots Locke would have regarded as belonging to the English nation is not immediately clear from what he writes. Locke subsequently makes it very clear, however, that, for him, to by no means suffices for someone to belong to the English nation that they had been born in England of English parents and had resided there since birth. ‘[S]ubmitting to the laws of any country, living quietly and enjoying privileges and protection under them, makes not a man a member of that society’[iii]. Having been born and bred in England might render a person eligible to join the English nation. However, no one automatically becomes a member, even upon inheriting landed property there. It is plain … 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 government. He is under his father’s tuition and authority, till he come to the age of discretion; and then he is a free-man, at liberty of what government he will put himself under; what body politic he will unite himself to.[iv] All residing in a country signifies about a resident is that their tacit consent to obey its laws. Residency only imposes upon residents the moral obligation to obey the law of the land in which they reside. To qualify for membership of a nation, more is needed person than having had parents who are members or having resided or owning landed property in its territory. ‘Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that … consent which makes any one a member of any commonwealth’[v]. That nation of which Locke considered himself a member, therefore, comprised only those of denizens of England who, by ‘oaths of allegiance and fealty’[vi], had expressly sworn to uphold the constitutional order that its denizens had established there who had similarly so sworn. Locke supposed there were only two ways in which such express undertakings could be given. First, the founding-members of a commonwealth might collectively and simultaneously give such an undertaking at its inception. Second, each subsequent new member might give the necessary undertaking individually, upon reaching adulthood and opting for admission. According to Locke, the political union or commonwealth to which members of the English nation belonged had always been fundamentally liberal character. Having said that, in Locke’s view, the English nation was not one which atheists[vii] or Roman Catholics[viii] were eligible to join. In this respect, those with such religious or irreligious filiations differed from pagans, Jews, and Muslims whose religious filiations, in Locke’s view, did not disqualify them membership of the English nation[ix]. Locke considered atheists ineligible to join the English nation since he considered membership to be gained by swearing an oath of allegiance. As oath, being a vow to God, meant an atheist could not swear one and hence could not do what was necessary to join. Roman Catholics clearly could swear oaths, but, according to Locke, not oaths of allegiance to the English commonwealth. This was because, in Locke’s view, the ultimate allegiance of Roman Catholics was to a foreign Prince, the Pope. He writes, That Church can have no right to be tolerated by the magistrate, which is constituted upon such a bottom, that all those who enter into it, do thereby ipso facto, deliver themselves up to the protection and service of another prince.... [B]y this means the magistrate would give way to the settling of a foreign jurisdiction in his own country, and suffer his own people to be listed, as it were, for soldiers against his own government.[x] Some contemporary Locke scholars, most notably Richard Ashcraft, consider Locke’s refusal to countenance Roman Catholics as being eligible for membership of the English nation to be nothing but irrational prejudice[xi]. Whether it was prejudice or a justified belief, Locke’s view that Roman Catholics made unreliable compatriots was one widely shared by the Whigs who were responsible for the Glorious Revolution of 1688. They secured the exclusion of Roman Catholics from any active part in English political life until the Catholic Emancipation Act of 1829. Even to the present day, the Act of Settlement brought onto the statute book in 1701 precludes any Roman Catholic from being able to ascend to the English throne. It is not obvious that, in their mistrust of Roman Catholics, Locke and his fellow Whigs were guilty of some deep irrational prejudice, however misplaced such an attitude might be today. To understand why Locke and his fellow Whigs so mistrusted Catholics, it need to be appreciated what England had just been through politically. As has recently been pointed out concerning England at the time Locke wrote, The [English] nation had learnt by bitter experience that when a Roman Catholic monarch is upon the throne, religious and civil liberty is lost. This was the experience under their monarchs until the Reformation, and revisited under Mary Tudor and the Stuarts, principally because the Roman Church decrees that her adherents’ first loyalty is to the Roman Church and her Popes not to the land of which they are a citizen or even a monarch…. The Vatican is a government like any other, … and a Catholic’s first loyalty is meant to be to the Vatican… The Vatican is built upon two pillars of authority: apostolic Succession (all peoples are the inheritors of the mantle of Peter) and Temporal Power, upon which the Vatican bases its claim that the Pope has authority over the kings of the earth…. While some Catholics may rebelliously choose not to submit to the Pope as to God, there is no denying that this is the immutable doctrinal position of their church.[xii] Locke, then, equates the English nation with the membership of a particular geographically situated political commonwealth that had been created and was maintained by means of the express consent of its members for the sake of their common good. As such, Locke needed to refute the view that English kings ruled by divine right. For such a source of their authority would mean English kings had always to be obeyed by their subjects irrespective of how intended their edicts were to serve their good. To suppose, as Robert Filmer had done, that kings ruled by divine right would, according to Locke, make them the ultimate legal authority in their realms. Such form of authority would effectively release kings from the constraint of any laws besides those recognised by their own consciences. The subjects of a realm governed by such an absolute monarch would lack secure possession of any rights. Hence, Locke was concerned to refute the notion of the divine right of kings. Locke claimed even the hereditary character of the English monarchy to be ultimately grounded in the consent of the English nation. It had acquired this character, in Locke’s view, in the distant past by some early generation of Englishmen having agreed to it as a quick and non-contentious means by which their next chief magistrate could be identified after each successive incumbent vacated that office through death or being deposed. Once established by their agreement, the legitimacy of the hereditary was freely accepted and reconfirmed by each successive generation of Englishmen upon their joining the nation. Locke considered the strength of the Englishman’s love of liberty to have been revealed by how fiercely the English parliamentary classes had resisted previous attempts by their monarchs to encroach on their traditional liberties. The deposition of James Stuart in 1688 was merely a less bloody re-run of a similar fate that had befallen his father, Charles Stuart, half a century before. On this earlier occasion, not only had parliament deposed a ruling monarch. It had gone on to try and execute him, following a protracted bloody civil war. By contrast, in 1688, James had merely been forced to flee to France to save his life. By fleeing, James gave Parliament the opportunity to disguise from the world the fact that he had been deposed. For it enabled it to maintain the constitutional pretence that he had voluntarily abdicated. It was, however, the earlier act of parliamentary resistance against a reigning monarch to which Locke was primarily referring when he claimed the English nation had been distinguished from others by its love of liberty. At the time of Charles Stuart’s deposition and execution, the English parliament stood in urgent need of a moral vindication for what the action it had carried out against him. There was no shortage of those willing to supply one. During the civil war, Locke’s father fought on the side of parliament, so Locke would have had ample opportunity to familiarise himself with some of these vindications. As Locke himself was subsequently to do, some vindications appealed in justification of parliament’s action to the historic love of the English for liberty. Locke would surely have been familiar with two that did. The first was the defence the House of Commons gave in 1649 of its decision earlier that same year to bring Charles to the trial that resulted in his execution. The second was a defence of their actions against Charles offered two years later by John Milton. The House of Commons began the 1649 vindication of itself by claiming it had ‘long contended against tyranny, … and to remove oppression, arbitrary power, and all opposition to the peace and freedom of the nation’[xiii]. In resisting Charles, it claimed it had been prompted by the very same motives. It goes on to sate the manifold constitutional offences of which it considered Charles guilty, before rehearsing and responding to a series of imaginary objections against its action. The last objection to which it replies alleges that, in acting as it did, the Commons subverted the time-honoured English constitution and thereby imperilled the benefits that it conferred upon the English nation. The Commons states the objection so. The courts of justice, and the good old laws and customs of England (the badges of our freedom, the benefit whereof our ancestors enjoyed long before the [Norman] Conquest, and spent much of their blood to have confirmed by the Great Charter of the Liberties [‘Magna Carta’] and the excellent laws which have continued in all former changes, and, being duly executed, are the most just, free, and equal of any the laws in the world) will, by the present alteration of government, be taken away and lost to us and our posterities. [xiv] The Commons responded by insisting that at all times it had scrupulously sought to comply with normal and customary constitutional procedure. Even the republican form of government it had instituted after Charles’ execution is said to enjoy full and perfect constitutionality. In making this claim, the Commons is at pains to demonstrate for how long the English constitution had been a liberal one. The House of Commons declared that it was very sensible of the excellency … of the laws of England…; of their great antiquity, even from before the time of the Norman slavery forced upon us; of the liberty and property and peace of the subject, so fully preserved by them; and ... of the clear consistency of them with the present government of a republic ….[xv] Parliament claims ‘the title “King” …used … for form only, no power of personal administration or judgement [being] allowed …[one] in the smallest matter contended for’[xvi]. In concluding its defence, the Commons explained what it expected ‘from all true-hearted Englishmen’. This was ‘not only … forbearance, but a cheerful concurrence ... [in] the great work now in hand, in such a way that the name of God may be honoured, the true protestant religion advanced, and the people of this land enjoy the blessings of peace, freedom and justice to them and their posterities’. [xvii] Two years after Parliament’s declaration of what it expected of all true-hearted Englishmen, John Milton was more than happy to live up to its expectations. He did so in his official capacity as Secretary of Foreign Tongues after having been asked by Parliament to write an exoneration of itself action in reply to a denial of the legitimacy of its action that been made by the Dutch humanist academic, Claude Salmasius. In the course of his lengthy polemical ‘Defence of the People of England’, Milton responded to a claim of Salmasius’ that the English had sought legitimacy for their action by claiming to find precedent for it in the example of the Dutch who had overthrown their Spanish rulers in favour of a republic. Milton denies the English had need of following any example but that of themselves. Once again, parliament’s action is defended through appealing to how long England has enjoyed a liberal constitution. Milton writes, [T]he English think they need not justify their actions by the example of any foreigners whatever. They have their laws of the land, which they have followed – laws which … are the best in the world; they have for their imitation the example of their ancestors, great and gallant men who never gave way to the unrestrained power of kings, and who put many of them to death when their government became insupportable. They were born free; they stand in need of no other nation; they can make unto themselves what laws they desire. One law in particular they venerate before the rest, a very ancient one enacted by nature itself, which measures all human laws, all civil right and government, not according to the lust of kings but, above all else, according to the safety and welfare of good men.[xviii] Both of these two vindications of Parliament’s deposition of Charles Stuart make appeal to England’s ‘Ancient Constitution’. According to this notion, from time immemorial, or, at least, from well before the Norman Conquest, England had enjoyed a liberal constitution by which even its kings were bound. This constitution supposedly conferred a degree of liberty upon the English that all other nations had long since forfeited, if, indeed, they had ever once enjoyed it. England’s Ancient Constitution forbade her kings from raising taxes or introducing new laws without having first gained the consent of witenagots or councils of the wise. This Anglo-Saxon form of assembly antedated French parliaments and was considered to be the true source of the English parliament. Edward Coke, another vociferous seventeenth century champion of Parliament, also made constant appeal to the notion of England’s Ancient Constitution of liberty in defending Parliament’s struggle against the early Stuart monarchs. Coke expounded the notion in his Institutes of the Laws of England, posthumously published in 1644. Coke’s work was one with which the Rump Parliament and Milton were familiar when they delivered their vindications of Parliament’s action in deposing Charles. From David Hume in the eighteenth century up to such twentieth century historians as Herbert Butterfield and John Pocock, historians of England have persistently denied there ever to have been any such Ancient Constitution. Most contemporary historians take for granted the idea represents a myth rather than a description of any historic reality. Some contemporary historians, such as Alan Macfarlane and Michael Wood, are less inclined to dismiss the idea that, prior to the Norman Conquest, England possessed a constitution more liberal than that which the Normans imposed and which it took the English centuries of constitutional struggle to recover[xix]. Locke was fully conversant with the idea of England’s Ancient Constitution, as he was of the use to which appeal to it had been put in support of parliamentary opposition to the Stuarts. Locke himself was in no doubt as to how vitally important it was to the political health of the nation that its more politically active members be made fully conversant with it. A year after publication of the Two Treatises, Locke published a collection of his letters written to a friend, Edward Clarke, in response to requests for advice on how to educate his children. These letters reveal how politically important Locke considered it to be that each successive generation of Englishmen be made conversant with the details of their country’s political and constitutional history. In the preface to the collection, Locke explains how that he had been led to publish the letters from a sense of patriotism combined with the conviction that ‘the welfare and prosperity of the nation … much depends [on] [t]he well educating of their children’[xx]. Especially important, in Locke’s view, was it for children born to the English landed gentry to receive a suitable education. Since they will eventually come to occupy the same rank as their parents, it can be presumed that it will be they who will eventually be called upon to administer the nation and thus to form its kernel. Their likely destination of having an active public life puts them in need of a sound education. ‘That most to be taken care of is the gentleman’s calling. For if those of that rank are by their education once set right, they will quickly bring order to all the rest.’[xxi] Locke considered it vitally important to the health of the nation that any aspirant English gentleman should have made extensive study of its history and jurisprudence. History, claimed Locke, is ‘the great mistress of prudence and civil [i.e. political] knowledge and [a subject that] ought to be the proper study of a gentleman’[xxii]. No less important in his estimate was jurisprudence. In words that today might well bring colour to the cheeks of even the most scholarly of political scientists, Locke lists the texts he considers essential reading in this branch of study for any English gentleman. They include the major political works of Cicero, Pufendorf and Grotius. Their study, claims Locke, would provide the aspirant English gentleman with instruction ‘in the natural rights of men, and the origin and foundations of society, and the duties resulting from thence. This general part of civil law and history are studies which a gentleman should not barely touch on, but constantly dwell upon and never have done with…’[xxiii]. In the case of children destined to be join the ranks of the English gentry, it was not enough for tem to confine their jurisprudential studies to this abstract body of theory. In addition, they needed to become acquainted with English common law and constitutional history. Locke writes, It would be strange to suppose an English gentleman should be ignorant of the law of his country. This, whatever station he is in, is so requisite that from a justice of the peace to a minister of state I know no place he can well fill without it… [T] he right way for a gentleman to study our law, which he does not design for his calling, is to take a view of out English constitution and government in the ancient books of the common law and some more modern writers, who out of them have given an account of this government. And having got a true idea of that, then to read our history and with it join in every king’s reign the laws then made. This will give an insight into the reason of our statutes, and show the true ground upon which they came to be mad ad what weight they ought to have. [xxiv] In sum, for Locke, the English nation is comprised of all and only those native-born Englishmen plus whoever has become subsequently domiciled who have united together politically by swearing appropriate oaths of allegiance and loyalty. To be fully part of that nation required Englishmen to become thoroughly conversant with their constitution, and, by implication, with its moral basis in natural law, as well as with the history of their nation. How remote is Locke’s conception of English nationality from that of those latter-day self-styled liberals for whom it is an anathema for anyone seeking or destined to join the English nation to be required to swear an oath of allegiance or to become conversant with English law and history. This is an extract from David Conway’s recently published book, In Defence of the Realm: The Place of Nations in Classical Liberalism (Aldershot: Ashgate, 2004). It is reproduced here with the kind permission of the publishers.

Notes:

[i] John Locke, Two Treatises of Government, ed. Peter Laslett, (Cambridge, New York and Melbourne: Cambridge University Press, 1988), p.137. [ii] Locke, First Treatise, s.1. [iii] Locke, Second Treatise, s. 122. [iv] Ibid., s118. [v] Ibid., s.122. [vi] ibid., s. 151. [vii] John Locke, A Letter Concerning Toleration, first published 1689, (Indianapolis, Indiana: Hackett, 1983), p.51. [viii] ibid., p.50. [ix] ibid, p.54 [x] ibid., p.50. [xi] See Richard Ashcraft, Revolutionary Politics and Locke’s ’Two Treatises of Government’ (Princeton, New Jersey: Princeton University Press, 1986), pp. 100-01. [xii] Adrian Hilton, The Principality and Power of Europe: Britain and the emerging Holy European Empire, Second Edition (Rickmansworth, Herts.: Dorchester House Publications, 2000), pp. 62-63. [xiii] ‘A Declaration of the Parliament of England, expressing the grounds of their late proceedings’ (1649) in (ed.) A. Sharp, Political Ideas of the English Civil Wars 1641-1649 (London and New York: Longman, 1983), pp. 232-33. [xiv] Ibid., p.236. [xv] ibid. [xvi] ibid. [xvii] ibid., pp. 236-7. [xviii] John Milton, ‘Defence of the People of England’ (1651) in John Milton, ‘Areopagitica’ and Other Political Writings of John Milton (Indianapolis: Liberty Fund, 1999), pp. 308-09. [xix] See Alan Macfarlane, The Origins of English Individualism (Oxford: Basil Blackwell, 1978), ch. 7, esp. pp185-88, and Michael Wood, In Search of England: Journeys into the English Past (Harmondsworth:Penguin Books, 2000), ch. 3. [xx] John Locke, Some Thoughts Concerning Education, first published 1693, edited with Introduction by Ruth W. Grant and Nathan Tarcov (Indianapolis and Cambridge: Hackett, 1996), p.8 [xxi] ibid. [xxii] ibid., p.138. [xxiii] ibid.., sec. 186. [xxiv] Ibid., pp. 139-40.

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