Constitutionalism and contingency: Locke's theory of prerogative

History of Political Thought

Volumn 25, Issue 2, 2004, Pages 276-297

  Fatovic, Clement ^a  

^a VASSAR COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 3242755044     PISSN: 0143781X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (99)

1. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, 1988). All citations from the Two Treatises will refer to numbered paragraphs in the Second Treatise.
2. The most comprehensive historical study of Locke's involvement in radical politics is Richard Ashcraft's Revolutionary Politics and Locke's 'Two Treatises of Government' (Princeton, 1986). See also Richard Ashcraft, 'The Two Treatises and the Exclusion Crisis: The Problem of Lockean Political Theory as Bourgeois Ideology', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977 (Los Angeles, 1980); Lois G. Schwoerer, 'Locke, Lockean Ideas, and the Glorious Revolution', Journal of the History of Ideas, 51 (4) (1990); and Mark Goldie, 'John Locke's Circle and James II', The Historical Journal, 35 (3) (1992), who suggests that exiled Whigs such as Locke were much more likely to take a hard-line 'manichean' stand against King James II than were those who remained in England.
3. The most comprehensive historical study of Locke's involvement in radical politics is Richard Ashcraft's Revolutionary Politics and Locke's 'Two Treatises of Government' (Princeton, 1986). See also Richard Ashcraft, 'The Two Treatises and the Exclusion Crisis: The Problem of Lockean Political Theory as Bourgeois Ideology', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977 (Los Angeles, 1980); Lois G. Schwoerer, 'Locke, Lockean Ideas, and the Glorious Revolution', Journal of the History of Ideas, 51 (4) (1990); and Mark Goldie, 'John Locke's Circle and James II', The Historical Journal, 35 (3) (1992), who suggests that exiled Whigs such as Locke were much more likely to take a hard-line 'manichean' stand against King James II than were those who remained in England.
4. The most comprehensive historical study of Locke's involvement in radical politics is Richard Ashcraft's Revolutionary Politics and Locke's 'Two Treatises of Government' (Princeton, 1986). See also Richard Ashcraft, 'The Two Treatises and the Exclusion Crisis: The Problem of Lockean Political Theory as Bourgeois Ideology', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977 (Los Angeles, 1980); Lois G. Schwoerer, 'Locke, Lockean Ideas, and the Glorious Revolution', Journal of the History of Ideas, 51 (4) (1990); and Mark Goldie, 'John Locke's Circle and James II', The Historical Journal, 35 (3) (1992), who suggests that exiled Whigs such as Locke were much more likely to take a hard-line 'manichean' stand against King James II than were those who remained in England.
5. The most comprehensive historical study of Locke's involvement in radical politics is Richard Ashcraft's Revolutionary Politics and Locke's 'Two Treatises of Government' (Princeton, 1986). See also Richard Ashcraft, 'The Two Treatises and the Exclusion Crisis: The Problem of Lockean Political Theory as Bourgeois Ideology', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977 (Los Angeles, 1980); Lois G. Schwoerer, 'Locke, Lockean Ideas, and the Glorious Revolution', Journal of the History of Ideas, 51 (4) (1990); and Mark Goldie, 'John Locke's Circle and James II', The Historical Journal, 35 (3) (1992), who suggests that exiled Whigs such as Locke were much more likely to take a hard-line 'manichean' stand against King James II than were those who remained in England.
6. Sir Robert Filmer, Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge, 1991). On Filmer's thought, see Gordon J. Schochet, Patriarchalism in Political Thought: The Authoritarian Family and Political Speculation and Attitudes Especially in Seventeenth-Century England (New York, 1975). John Marshall downplays Patriarcha's role in shaping Locke's views on violent resistance and argues, instead, that Locke formulated his doctrine of violent resistance specifically against James's 'absolutist intentions as a Catholic' (John Marshall, John Locke: Resistance, Religion and Responsibility (Cambridge, 1994), p. 221).
7. Sir Robert Filmer, Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge, 1991). On Filmer's thought, see Gordon J. Schochet, Patriarchalism in Political Thought: The Authoritarian Family and Political Speculation and Attitudes Especially in Seventeenth-Century England (New York, 1975). John Marshall downplays Patriarcha's role in shaping Locke's views on violent resistance and argues, instead, that Locke formulated his doctrine of violent resistance specifically against James's 'absolutist intentions as a Catholic' (John Marshall, John Locke: Resistance, Religion and Responsibility (Cambridge, 1994), p. 221).
8. Sir Robert Filmer, Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge, 1991). On Filmer's thought, see Gordon J. Schochet, Patriarchalism in Political Thought: The Authoritarian Family and Political Speculation and Attitudes Especially in Seventeenth-Century England (New York, 1975). John Marshall downplays Patriarcha's role in shaping Locke's views on violent resistance and argues, instead, that Locke formulated his doctrine of violent resistance specifically against James's 'absolutist intentions as a Catholic' (John Marshall, John Locke: Resistance, Religion and Responsibility (Cambridge, 1994), p. 221).
9. A notable exception is Pasquale Pasquino, 'Locke on King's Prerogative', Political Theory, 26 (2) (1998).
10. Edward Corwin argued that this feature of Locke's politics, 'in view both of the immediate occasion for which he wrote and of his "constitutionalism," [is] not a little astonishing', so he dismissed prerogative as yet another of Locke's variegated inconsistencies (Edward Corwin, The 'Higher Law' Background of American Constitutional Law (Ithaca, 1955), p. 71). Robert Scigliano considers it inconceivable that Locke could support an expansive view of prerogative in light of the fact that the Treatises were written (or so Scigliano erroneously claims) to justify the Glorious Revolution. See Robert Scigliano, 'The President's "Prerogative Power"', in Inventing the American Presidency, ed. Thomas E. Cronin (Lawrence, KS, 1989), p. 242.
11. Edward Corwin argued that this feature of Locke's politics, 'in view both of the immediate occasion for which he wrote and of his "constitutionalism," [is] not a little astonishing', so he dismissed prerogative as yet another of Locke's variegated inconsistencies (Edward Corwin, The 'Higher Law' Background of American Constitutional Law (Ithaca, 1955), p. 71). Robert Scigliano considers it inconceivable that Locke could support an expansive view of prerogative in light of the fact that the Treatises were written (or so Scigliano erroneously claims) to justify the Glorious Revolution. See Robert Scigliano, 'The President's "Prerogative Power"', in Inventing the American Presidency, ed. Thomas E. Cronin (Lawrence, KS, 1989), p. 242.
12. John Gray, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age (London, 1995), p. 6. Similar claims about liberalism's excessive legalism appear in Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, 1993).
13. John Gray, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age (London, 1995), p. 6. Similar claims about liberalism's excessive legalism appear in Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, 1993).
14. Carl Schmitt singled out Locke in his assault on liberal constitutionalism in Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, 1985), pp. 13-14. James Madison is often considered the foremost example of high institutionalism in liberal political thought. See particularly Martin Diamond's essays 'The Federalist' (in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago, 3rd edn., 1987)) and 'Democracy and The Federalist: A Reconsideration of the Framers' Intent' (American Political Science Review, LIII (1) (1959)).
15. Carl Schmitt singled out Locke in his assault on liberal constitutionalism in Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, 1985), pp. 13-14. James Madison is often considered the foremost example of high institutionalism in liberal political thought. See particularly Martin Diamond's essays 'The Federalist' (in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago, 3rd edn., 1987)) and 'Democracy and The Federalist: A Reconsideration of the Framers' Intent' (American Political Science Review, LIII (1) (1959)).
16. Carl Schmitt singled out Locke in his assault on liberal constitutionalism in Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, 1985), pp. 13-14. James Madison is often considered the foremost example of high institutionalism in liberal political thought. See particularly Martin Diamond's essays 'The Federalist' (in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago, 3rd edn., 1987)) and 'Democracy and The Federalist: A Reconsideration of the Framers' Intent' (American Political Science Review, LIII (1) (1959)).
17. On Locke's struggles to deal with various epistemological uncertainties in politics, see Kirstie M. McClure, Judging Rights: Lockean Politics and the Limits of Consent (Ithaca, 1996).
18. Perhaps the most notorious example of Kant's legalistic extremism is his discussion of illegitimate children: 'The child born outside marriage is outside the law (for marriage is a lawful institution), and it is therefore also outside the protection of the law. It has found its way into the commonwealth by stealth, so to speak, like contraband goods, so that the commonwealth can ignore its existence and hence also its destruction, for it ought not to have come into existence at all in this way' (!). Immanuel Kant, The Metaphysics of Morals, in Political Writings, ed. Hans Reiss (Cambridge, 1991), p. 159. It is noteworthy that Schmitt conflated Locke and Kant in his critique of liberal legal theory. See Schmitt, Political Theology, p. 14.
19. Perhaps the most notorious example of Kant's legalistic extremism is his discussion of illegitimate children: 'The child born outside marriage is outside the law (for marriage is a lawful institution), and it is therefore also outside the protection of the law. It has found its way into the commonwealth by stealth, so to speak, like contraband goods, so that the commonwealth can ignore its existence and hence also its destruction, for it ought not to have come into existence at all in this way' (!). Immanuel Kant, The Metaphysics of Morals, in Political Writings, ed. Hans Reiss (Cambridge, 1991), p. 159. It is noteworthy that Schmitt conflated Locke and Kant in his critique of liberal legal theory. See Schmitt, Political Theology, p. 14.
20. Unlike his republican contemporaries, Locke did not believe that discretionary power was synonymous with slavery. On this strain of republican thought see Quentin Skinner, Liberty Before Liberalism (Cambridge, 1998), pp. 50-2, 69-72.
21. The end of collective self-preservation and welfare is paramount even to individual self-preservation or individual rights, which are usually considered pre-eminent in liberalism. See A. John Simmons, The Lockean Theory of Rights (Princeton, 1992), especially Chapter One. For a good analysis of Locke's 'conception of the common good and a conception of civil society as more than an aggregate of atomistic individuals', see Nathan Tarcov, 'A "Non- Lockean" Locke and the Character of Liberalism', Liberalism Reconsidered, ed. Douglas MacLean and Claudia Mills (Totowa, NJ, 1983), quote at p. 131.
22. The end of collective self-preservation and welfare is paramount even to individual self-preservation or individual rights, which are usually considered pre-eminent in liberalism. See A. John Simmons, The Lockean Theory of Rights (Princeton, 1992), especially Chapter One. For a good analysis of Locke's 'conception of the common good and a conception of civil society as more than an aggregate of atomistic individuals', see Nathan Tarcov, 'A "Non- Lockean" Locke and the Character of Liberalism', Liberalism Reconsidered, ed. Douglas MacLean and Claudia Mills (Totowa, NJ, 1983), quote at p. 131.
23. Whereas the executive enforces 'the Municipal Laws of the Society within its self', the federative manages 'the security and interest of the publick without' (Ó 147). Because it necessarily operates without positive laws to guide it, the federative power must be entrusted 'to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick good' (§ 147). Even though this power is not amenable to the kinds of institutional strictures that regulate the legislative, it resembles the legislative (and the executive) insofar as it exists to fulfil the end for which political society is established: the preservation of its members. For an analysis of the relation between extra-legal activities and popular consent, see John Dunn, 'Consent in the Political Theory of John Locke', in Life, Liberty, and Property: Essays on Locke's Political Ideas, ed. Gordon J. Schochet (Belmont, CA, 1971), pp. 156-8. Since it would be 'almost impracticable to place the Force of the Commonwealth in distinct, and not subordinate hands' (§ 148), Locke argued that the executive and federative powers ought to be combined. The historically contingent argument that these powers are often combined is not as consequential for Locke as the practical requirement that the government perform these functions with dispatch.
24. As Richard Ashcraft pointed out, the avowed impetus for armed resistance 'was the king's use of the prerogative to call and dissolve government in such a way as to defeat the purposes of representative government'. Ashcraft, Revolutionary Politics, p. 314.
25. Locke was much more suspicious of legislative power than were republican thinkers, who regarded legislative assemblies as essential bulwarks of liberty. As Schwoerer writes: 'Locke is among the few political theorists in late Stuart England who, like earlier royalists, understood the possibility of legislative tyranny.' Schwoerer, 'Locke, Lockean Ideas', p. 542. See also the discussion of Sidney below.
26. Niccolo Machiavelli, Discourses on Livy, trans. Harvey C. Mansfield and Nathan Tarcov (Chicago, 1996), Book III, Ch. 1, pp. 209-12.
27. Note the apparent annoyance with which Locke observes that 'People are not so easily got out of their old Forms' (§ 223).
28. As early as his Letter from a Person of Quality, which he is believed to have coauthored with Shaftesbury, Locke seemed to embrace the idea that historical and political change is unavoidable -and perhaps even salutary. In response to the argument of some clergymen that government must make no alterations in the structure of the Church since it has been ordained by God, Locke asked: 'For what is the business of Parliaments but the alteration, either by adding, or taking away some part of the Government, either in Church or State? and every new Act of Parliament is an alteration; and what kind of Government in Church and State must that be, which I must swear no alteration of Time, emergencie of Affairs, nor variation of humane Things, never to endeavor to alter?' Answering his own question, he stated that 'such a Government should be given by God himself', but as the things and affairs of this world are transient, humans must adapt to change and be ready to make necessary alterations. Locke and Shaftesbury, A Letter from a Person of Quality, to His Friend in the Country (1675), pp. 25-6.
29. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
30. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
31. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
32. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
33. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
34. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
35. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
36. Niccolo Machiavelli, The Prince, ed. Quentin Skinner and Russell Price (Cambridge, 1988), p. 39. Earlier, Machiavelli had explained that 'time brings all things with it, and can produce benefits as well as evils, evils as well as benefits', which is why it is necessary to seize the opportunities that fortune provides, ibid., p. 11. Harrison and Laslett have commented that 'no literary debt to Machiavelli shows upon the surface for all [Locke's] pains to collect editions of that author', in John Harrison and Peter Laslett, The Library of John Locke (Oxford, 2nd edn., 1971), p. 22. That remark is clearly belied by Locke's description of the contingency of politics in connection with his presentation of prerogative power. The parallels between Locke and Machiavelli are not all that unusual, since Locke was also preoccupied with a problem that, according to Pocock, Machiavelli confronted directly: 'the continuation and stabilization of civic bodies in intimate tension with thought aimed at the understanding of rapid and unpredictable change'. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 117. Ashcraft points out that Locke began to take a keen interest in political conspiracies between 1681 and 1683, as reflected in his journal notes, which indicated that he was reading both The Prince and the Discourses very carefully at a critical moment in his political life. Ashcraft, Revolutionary Politics, pp. 382-3. By the end of his life, Locke owned at least ten volumes of Machiavelli's writings, including three different versions of The Prince (Harrison and Laslett, The Library of John Locke, p. 21). It is possible only to speculate as to when Locke acquired each of his volumes of Machiavelli, but there is no indication that he bought any of the copies in his library later in his life, when he adopted the practice of annotating new acquisitions with a letter code. On Locke's cataloguing system in his later years, see ibid., p. 35. Although it is uncertain whether Locke had ready access to all of Machiavelli's texts while he was exiled in Holland, it is known that he purchased several works by Machiavelli, including The Prince and the Discourses, before his departure and acquired 'the corrected Latin version of the Prince' in Holland. For a list of the volumes by Machiavelli contained in Locke's library, see ibid., p. 181.
37. Laslett charges Locke with being the most unhistorical of the great political theorists: 'Neither Machiavelli, nor Hobbes, nor Rousseau succeeded in making the discussion of politics so completely independent of historical example, so entirely autonomous an area of discourse, yet Locke has affected the everyday activity of practicing politicians more perhaps than any of them.' Laslett, 'Introduction', Two Treatises, p. 78. However, the absence of specific historical examples does not mean that Locke was an ahistorical thinker. His historical sensibility is manifested in the logic of his argument and in his anthropological claims. What distinguishes him from these other thinkers is his reluctance to make a normative theory of politics dependent on the particularities of historical events even as he theorizes the importance of historical processes in the abstract. On Locke's studious avoidance of some of the most pressing historical controversies of his day, see J.G.A. Pocock, 'The Myth of John Locke and the Obsession with Liberalism', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977, pp. 3-7, and J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study in English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge, 1987), pp. 235-6.
38. Laslett charges Locke with being the most unhistorical of the great political theorists: 'Neither Machiavelli, nor Hobbes, nor Rousseau succeeded in making the discussion of politics so completely independent of historical example, so entirely autonomous an area of discourse, yet Locke has affected the everyday activity of practicing politicians more perhaps than any of them.' Laslett, 'Introduction', Two Treatises, p. 78. However, the absence of specific historical examples does not mean that Locke was an ahistorical thinker. His historical sensibility is manifested in the logic of his argument and in his anthropological claims. What distinguishes him from these other thinkers is his reluctance to make a normative theory of politics dependent on the particularities of historical events even as he theorizes the importance of historical processes in the abstract. On Locke's studious avoidance of some of the most pressing historical controversies of his day, see J.G.A. Pocock, 'The Myth of John Locke and the Obsession with Liberalism', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977, pp. 3-7, and J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study in English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge, 1987), pp. 235-6.
39. Laslett charges Locke with being the most unhistorical of the great political theorists: 'Neither Machiavelli, nor Hobbes, nor Rousseau succeeded in making the discussion of politics so completely independent of historical example, so entirely autonomous an area of discourse, yet Locke has affected the everyday activity of practicing politicians more perhaps than any of them.' Laslett, 'Introduction', Two Treatises, p. 78. However, the absence of specific historical examples does not mean that Locke was an ahistorical thinker. His historical sensibility is manifested in the logic of his argument and in his anthropological claims. What distinguishes him from these other thinkers is his reluctance to make a normative theory of politics dependent on the particularities of historical events even as he theorizes the importance of historical processes in the abstract. On Locke's studious avoidance of some of the most pressing historical controversies of his day, see J.G.A. Pocock, 'The Myth of John Locke and the Obsession with Liberalism', in John Locke: Papers Read at a Clark Library Seminar, 10 December 1977, pp. 3-7, and J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study in English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge, 1987), pp. 235-6.
40. Larry Arnhart, '"The God-Like Prince"; John Locke[,] Executive Prerogative, and the American Presidency', Presidential Studies Quarterly, IX (2) (1979), p. 125.
41. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power (Baltimore, 1989). In making this argument, Mansfield hangs too much importance on the etymological similarity of 'execution' in the sense of capital punishment and 'execution' in the sense of enforcement.
42. As one might expect, this language appears in Locke's earlier writings (e.g. First Tract on Government, in Political Essays, ed. Mark Goldie (Cambridge, 1997), pp. 32-3) before the radicalization of his thought, but it recurs in some of his later writings as well (e.g. An Essay on Toleration, in Political Essays, p. 142).
43. As one might expect, this language appears in Locke's earlier writings (e.g. First Tract on Government, in Political Essays, ed. Mark Goldie (Cambridge, 1997), pp. 32-3) before the radicalization of his thought, but it recurs in some of his later writings as well (e.g. An Essay on Toleration, in Political Essays, p. 142).
44. Richard Tuck traces this vocabulary to the spread in England of the 'new humanism, that constitutional and legal forms should be overridden in the interests of a people or a prince', in Richard Tuck, Philosophy and Government: 1572-1651 (Cambridge, 1993), p. 223.
45. Needless to say, the flexibility of Lockean constitutionalism did not translate into the kind of moral flexibility that Machiavelli infamously advocated. Nor did Locke ever accept 'the necessity for a prince to preserve himself as a head of state at all costs' since he did not believe that the interests of the prince and the state were inextricably linked. Tuck, Philosophy and Government, p. 56 (italics in original). In contrast to Richelieu and the French Lipsians, who permitted the king to commit certain acts of oppression if warranted by necessity (ibid., pp. 88-9), Locke never permitted the executive or anyone else to transgress the laws of nature.
46. Needless to say, the flexibility of Lockean constitutionalism did not translate into the kind of moral flexibility that Machiavelli infamously advocated. Nor did Locke ever accept 'the necessity for a prince to preserve himself as a head of state at all costs' since he did not believe that the interests of the prince and the state were inextricably linked. Tuck, Philosophy and Government, p. 56 (italics in original). In contrast to Richelieu and the French Lipsians, who permitted the king to commit certain acts of oppression if warranted by necessity (ibid., pp. 88-9), Locke never permitted the executive or anyone else to transgress the laws of nature.
47. Despite Locke's explicit words to the contrary, Robert Scigliano argues that Lockean prerogative does not allow the executive to act against the law. Scigliano contends that Locke is so confusing on this point because he 'wished to disguise his meaning regarding prerogative in order to protect himself - a very strange thing for a man who is explicitly advocating rebellion and regicide to do. See Scigliano, 'The President's "Prerogative Power"', quote at p. 243.
48. Locke's conditions stand in contrast to Coke's legalistic view that 'the King hath no prerogative, but that which the law and the land follows'. Quoted in Corwin, The 'Higher Law' Background, p. 43.
49. The legitimacy of government for Locke is not determined solely or even primarily in terms of its consensual basis, but depends to a large degree on its effectiveness in actually implementing the laws of nature, just as the security of the people in the broadest sense depends on more than merely formal observance of the rule of law. (As McClure argues throughout Judging Rights, the laws of nature define the proper limits of consent according to the natural rights of individuals in the state of nature.) In fact, Locke relied on the indifference of the people, who 'are far from examining Prerogative' (§ 161), to allay anticipated concerns that such informal popular oversight could turn out to be even more debilitating than formal alternatives. In discussing the rather weak notion of consent that Locke employs here and throughout in predicating the legitimacy of government, Dunn observes that what this position 'asserts is more the behavioral inertness of the people than its normative acceptance of the legitimacy of authority'. Dunn 'Consent', p. 158. Although Dunn does demonstrate the flimsy - and technically non-consensual - basis of the legitimacy of certain exercises of authority, he neglects Locke's hearty approval of the maxim salus populi suprema lex, which implies that the people might not always be the best judges of their own best interest. In other words, the executive might have knowledge that the people lack but need for informed consent.
50. On this score, Locke the progenitor of modern constitutionalism seems susceptible to McIlwain's charge that 'the fundamental weakness of all medieval constitutionalism lay in its failure to enforce any penalty, except the threat or the exercise of revolutionary force, against a prince who actually trampled under foot those rights of his subjects which undoubtedly lay beyond the scope of his legitimate authority.' Charles Howard McIlwain, Constitutionalism: Ancient & Modern, (Ithaca, revised edn., 1947), p. 107.
51. Mansfield, Taming the Prince, pp. 184, 187.
52. Aristotle, The Nicomachean Ethics, trans. David Ross (Oxford, 1980), Book V, Ch. 10, p. 133.
53. Aristotle, Politics, trans. Ernest Barker (Oxford, 1995), Book III, Ch. 16.
54. See the classic study by Ernst H. Kantorowicz, The King 's Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), which describes the (mainly English) medieval bifurcation of the monarch between the person of the king and the office of the Crown, based on a distinction between the 'body natural' and the 'body politic' of the king. The medieval distinction between the person of the king and the appurtenances of the Crown continued to form an important part of English political discourse right up until the eve of Civil War, when the Parliamentary opposition insisted its resistance was not directed against Charles. See Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New York, 1964 reprint). Unlike medieval theorists, however, Locke considered these two clearly separable, even though they remained closely linked. In this regard, Locke followed those seventeenth-century parliamentarians who maintained the separability of the personal and political capacities of the king. See Janelle Greenberg, 'Our Grand Maxim of State, "The King Can Do No Wrong" ', History of Political Thought, XII (2) (1991), especially pp. 219-21. Locke would have been familiar with this distinction because of his familiarity with the 'Puritan cry of "fighting the king [qua individual] to defend the King [qua office]" ', which drew on this tradition (Kantorowicz, The King's Two Bodies, p. 23). Skinner observes that this distinction became a salient feature of debates surrounding the Civil War, and notes that Hobbes tried to overcome such familiar oppositions with his own theory of the 'artificial person of the state' (Skinner, Liberty Before Liberalism, pp. 1-5).
55. See the classic study by Ernst H. Kantorowicz, The King 's Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), which describes the (mainly English) medieval bifurcation of the monarch between the person of the king and the office of the Crown, based on a distinction between the 'body natural' and the 'body politic' of the king. The medieval distinction between the person of the king and the appurtenances of the Crown continued to form an important part of English political discourse right up until the eve of Civil War, when the Parliamentary opposition insisted its resistance was not directed against Charles. See Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New York, 1964 reprint). Unlike medieval theorists, however, Locke considered these two clearly separable, even though they remained closely linked. In this regard, Locke followed those seventeenth-century parliamentarians who maintained the separability of the personal and political capacities of the king. See Janelle Greenberg, 'Our Grand Maxim of State, "The King Can Do No Wrong" ', History of Political Thought, XII (2) (1991), especially pp. 219-21. Locke would have been familiar with this distinction because of his familiarity with the 'Puritan cry of "fighting the king [qua individual] to defend the King [qua office]" ', which drew on this tradition (Kantorowicz, The King's Two Bodies, p. 23). Skinner observes that this distinction became a salient feature of debates surrounding the Civil War, and notes that Hobbes tried to overcome such familiar oppositions with his own theory of the 'artificial person of the state' (Skinner, Liberty Before Liberalism, pp. 1-5).
56. See the classic study by Ernst H. Kantorowicz, The King 's Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), which describes the (mainly English) medieval bifurcation of the monarch between the person of the king and the office of the Crown, based on a distinction between the 'body natural' and the 'body politic' of the king. The medieval distinction between the person of the king and the appurtenances of the Crown continued to form an important part of English political discourse right up until the eve of Civil War, when the Parliamentary opposition insisted its resistance was not directed against Charles. See Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New York, 1964 reprint). Unlike medieval theorists, however, Locke considered these two clearly separable, even though they remained closely linked. In this regard, Locke followed those seventeenth-century parliamentarians who maintained the separability of the personal and political capacities of the king. See Janelle Greenberg, 'Our Grand Maxim of State, "The King Can Do No Wrong" ', History of Political Thought, XII (2) (1991), especially pp. 219-21. Locke would have been familiar with this distinction because of his familiarity with the 'Puritan cry of "fighting the king [qua individual] to defend the King [qua office]" ', which drew on this tradition (Kantorowicz, The King's Two Bodies, p. 23). Skinner observes that this distinction became a salient feature of debates surrounding the Civil War, and notes that Hobbes tried to overcome such familiar oppositions with his own theory of the 'artificial person of the state' (Skinner, Liberty Before Liberalism, pp. 1-5).
57. See the classic study by Ernst H. Kantorowicz, The King 's Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), which describes the (mainly English) medieval bifurcation of the monarch between the person of the king and the office of the Crown, based on a distinction between the 'body natural' and the 'body politic' of the king. The medieval distinction between the person of the king and the appurtenances of the Crown continued to form an important part of English political discourse right up until the eve of Civil War, when the Parliamentary opposition insisted its resistance was not directed against Charles. See Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New York, 1964 reprint). Unlike medieval theorists, however, Locke considered these two clearly separable, even though they remained closely linked. In this regard, Locke followed those seventeenth-century parliamentarians who maintained the separability of the personal and political capacities of the king. See Janelle Greenberg, 'Our Grand Maxim of State, "The King Can Do No Wrong" ', History of Political Thought, XII (2) (1991), especially pp. 219-21. Locke would have been familiar with this distinction because of his familiarity with the 'Puritan cry of "fighting the king [qua individual] to defend the King [qua office]" ', which drew on this tradition (Kantorowicz, The King's Two Bodies, p. 23). Skinner observes that this distinction became a salient feature of debates surrounding the Civil War, and notes that Hobbes tried to overcome such familiar oppositions with his own theory of the 'artificial person of the state' (Skinner, Liberty Before Liberalism, pp. 1-5).
58. See the classic study by Ernst H. Kantorowicz, The King 's Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), which describes the (mainly English) medieval bifurcation of the monarch between the person of the king and the office of the Crown, based on a distinction between the 'body natural' and the 'body politic' of the king. The medieval distinction between the person of the king and the appurtenances of the Crown continued to form an important part of English political discourse right up until the eve of Civil War, when the Parliamentary opposition insisted its resistance was not directed against Charles. See Margaret Atwood Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New York, 1964 reprint). Unlike medieval theorists, however, Locke considered these two clearly separable, even though they remained closely linked. In this regard, Locke followed those seventeenth-century parliamentarians who maintained the separability of the personal and political capacities of the king. See Janelle Greenberg, 'Our Grand Maxim of State, "The King Can Do No Wrong" ', History of Political Thought, XII (2) (1991), especially pp. 219-21. Locke would have been familiar with this distinction because of his familiarity with the 'Puritan cry of "fighting the king [qua individual] to defend the King [qua office]" ', which drew on this tradition (Kantorowicz, The King's Two Bodies, p. 23). Skinner observes that this distinction became a salient feature of debates surrounding the Civil War, and notes that Hobbes tried to overcome such familiar oppositions with his own theory of the 'artificial person of the state' (Skinner, Liberty Before Liberalism, pp. 1-5).
59. John Dunn argues that Whig objections to prerogative were inspired by constitutional considerations and opposed to prerogative as such, but harboured no animosity towards the king personally. John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the 'Two Treatises of Government' (Cambridge, 1969), p. 46. As Marshall suggests in John Locke, this is extremely doubtful in Locke's case.
60. Locke, 'Justitia', in Political Essays, p. 273.
61. Insofar as it establishes no legal precedents, prerogative is (in Bractonian terms) all gubemaculum and no jurisdictio: it consists entirely of ad hoc decisions necessary for 'effective administration' - i.e. 'all things incidental or "annexed" to government'. On Bracton's (Henry of Bratton's) distinction, see McIlwain, Constitutionalism, p. 77. However, it should be noted that Locke did not share the medieval thinker's view that the king is irreproachable in the domain of gubemaculum. The discretionary quality of prerogative, for Locke, is still bound by natural law.
62. Laslett suggests that 'Locke's savagery against despotism in general and against Charles II and James II in particular' may account for the 'surprising ferociousness' of a quotation from Livy that appears at the beginning of the Two Treatises. See Laslett's note on p. 136 of the Two Treatises.
63. On the qualities that Locke expected of public officers, see Christopher Anderson, ' "Safe Enough in His Honesty and Prudence": The Ordinary Conduct of Government in the Thought of John Locke', History of Political Thought, XIII (4) (1992).
64. This seems to be particularly true of medieval thinkers. In the fifteenth century, Sir John Fortescue reluctantly acknowledged the possible need for some kind of discretionary royal power to deal with emergencies, but did not consider such abnormal cases worthy of his sustained attention, since he believed 'that a perfect law always exists and can be found to define the rights and duties of all individuals and constitutional agencies in England'. Max Adams Shepard, 'The Political and Constitutional Theory of Sir John Fortescue', in Essays in History and Political Theory in Honor of Charles Howard McIlwain (New York, 1936), p. 289. See also R.W.K. Hinton, 'English Constitutional Doctrines from the Fifteenth Century to the Seventeenth: English Constitutional Theories from Sir John Fortescue to Sir John Eliot', English Historical Review, 75 (1960); and Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge, 1997).
65. This seems to be particularly true of medieval thinkers. In the fifteenth century, Sir John Fortescue reluctantly acknowledged the possible need for some kind of discretionary royal power to deal with emergencies, but did not consider such abnormal cases worthy of his sustained attention, since he believed 'that a perfect law always exists and can be found to define the rights and duties of all individuals and constitutional agencies in England'. Max Adams Shepard, 'The Political and Constitutional Theory of Sir John Fortescue', in Essays in History and Political Theory in Honor of Charles Howard McIlwain (New York, 1936), p. 289. See also R.W.K. Hinton, 'English Constitutional Doctrines from the Fifteenth Century to the Seventeenth: English Constitutional Theories from Sir John Fortescue to Sir John Eliot', English Historical Review, 75 (1960); and Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge, 1997).
66. This seems to be particularly true of medieval thinkers. In the fifteenth century, Sir John Fortescue reluctantly acknowledged the possible need for some kind of discretionary royal power to deal with emergencies, but did not consider such abnormal cases worthy of his sustained attention, since he believed 'that a perfect law always exists and can be found to define the rights and duties of all individuals and constitutional agencies in England'. Max Adams Shepard, 'The Political and Constitutional Theory of Sir John Fortescue', in Essays in History and Political Theory in Honor of Charles Howard McIlwain (New York, 1936), p. 289. See also R.W.K. Hinton, 'English Constitutional Doctrines from the Fifteenth Century to the Seventeenth: English Constitutional Theories from Sir John Fortescue to Sir John Eliot', English Historical Review, 75 (1960); and Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge, 1997).
67. Quoted in Judson, Crisis of the Constitution, p. 233.
68. See ibid., pp. 232-4, 237, 242.
69. Ibid., p. 355.
70. Quoted in Skinner, Liberty Before Liberalism, p. 1.
71. Quoted in Pocock, The Ancient Constitution, p. 176. On Hale's denial that individual reason was equal to the reason and experience embodied in the common law, see ibid., pp. 170-81.
72. Quoted in Pocock, The Ancient Constitution, p. 176. On Hale's denial that individual reason was equal to the reason and experience embodied in the common law, see ibid., pp. 170-81.
73. For a comparison of Locke and Sidney's views, see James Conniff, 'Reason and History in Early Whig Thought: The Case of Algernon Sidney', Journal of the History of Ideas, 43 (1982), pp. 397-416. Sidney's treatise is fairly representative of ideas shared by many other seventeenth-century English republicans, including John Milton and Henry Neville.
74. Algernon Sidney, Discourses Concerning Government, ed. Thomas G. West (Indianapolis, 1996), pp. 222, 284. On Sidney's meritocratic predilections, see pp. 38, 44, 50, 80-6 and 135. Although Neville acknowledged certain exercises of prerogative as valid political practices, he limited prerogative to what was defined in law. See Henry Neville, Plato Redivivus, in Two English Republican Tracts, ed. Caroline Robbins (Cambridge, 1969), pp. 126 and 131.
75. Algernon Sidney, Discourses Concerning Government, ed. Thomas G. West (Indianapolis, 1996), pp. 222, 284. On Sidney's meritocratic predilections, see pp. 38, 44, 50, 80-6 and 135. Although Neville acknowledged certain exercises of prerogative as valid political practices, he limited prerogative to what was defined in law. See Henry Neville, Plato Redivivus, in Two English Republican Tracts, ed. Caroline Robbins (Cambridge, 1969), pp. 126 and 131.
76. Sidney, Discourses, p. 376.
77. Ibid., p. 310.
78. Ibid., p. 403.
79. Of course, Locke insisted in An Essay Concerning Human Understanding and elsewhere that individual effort and application are necessary to acquire this knowledge, a point to which he alludes in The Second Treatise (Ó 6). On the epistemological issues raised by natural law see James O. Hancey, 'John Locke and the Law of Nature', Political Theory, 4 (4) (1976).
80. Sidney, Discourses, p. 86.
81. Ibid., p. 364. He also noted that 'the end which was ever proposed, being the good of the publick, they only performed their duty, who procured it according to the laws of the society, which were equally valid as to their own magistrates, whether they were few or many', ibid., p. 99.
82. Ibid., p. 364. He also noted that 'the end which was ever proposed, being the good of the publick, they only performed their duty, who procured it according to the laws of the society, which were equally valid as to their own magistrates, whether they were few or many', ibid., p. 99.
83. John Milton, The Tenure of Kings and Magistrates, in Areopagitica and Other Political Writings of John Milton, ed. John Alvis (Indianapolis, 1999), p. 59.
84. Neville, Plato Redivivus, pp. 130-1; quote at p. 130.
85. Sidney, Discourses, p. 109.
86. On this indifference, see ibid., p. 386. Recognizing the imperfection of human laws, Sidney did permit judges to exercise discretion, but that is only because of a circumstance peculiar to England: namely, the confusion resulting from voluminous, contradictory laws. See ibid., pp. 465-8.
87. On this indifference, see ibid., p. 386. Recognizing the imperfection of human laws, Sidney did permit judges to exercise discretion, but that is only because of a circumstance peculiar to England: namely, the confusion resulting from voluminous, contradictory laws. See ibid., pp. 465-8.
88. Ibid., p. 451. Sidney's reservations about the power to pardon stem from his belief in strict execution of justice. See ibid., p. 556.
89. Ibid., p. 451. Sidney's reservations about the power to pardon stem from his belief in strict execution of justice. See ibid., p. 556.
90. Ibid., p. 401. Locke's thought is much more sophisticated in recognizing the difficulties involved in interpreting and enforcing civil laws, as demonstrated in The Reasonableness of Christianity, which builds on epistemological arguments developed in The Essay Concerning Human Understanding.
91. Sidney, Discourses, p. 572.
92. Ibid., pp. 151, 152.
93. Ibid., p 121.
94. Ibid., p. 301.
95. In some respects, Locke' s theory of prerogative bears a closer resemblance to the arguments of royalists than to those of republicans, many of whose political and ideological aims he shared. The similarity to the royalist Thomas Fleming's statement in Bate's Case is striking: 'The absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the king the head; and this power is guided by the rules, which direct only at the common law, and is most properly Pollicy and Government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdome of the king, for the common good; and these being general rules and true as they are, all things done within these rules are lawful.' Quoted in Judson, Crisis of the Constitution, p. 113 (my italics). On the general welfare powers of the king, see ibid., pp. 111-16. Although Locke never accepted the royalist argument that the king was absolute within his 'realm' (i.e. those areas of government that made up the exclusive province of the king) - and would certainly have rejected claims of Parliamentary supremacy, as made by Henry Parker and others - his theory of executive power seems to argue for a conception of prerogative even more expansive in some respects than that of some royalists.
96. In some respects, Locke' s theory of prerogative bears a closer resemblance to the arguments of royalists than to those of republicans, many of whose political and ideological aims he shared. The similarity to the royalist Thomas Fleming's statement in Bate's Case is striking: 'The absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the king the head; and this power is guided by the rules, which direct only at the common law, and is most properly Pollicy and Government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdome of the king, for the common good; and these being general rules and true as they are, all things done within these rules are lawful.' Quoted in Judson, Crisis of the Constitution, p. 113 (my italics). On the general welfare powers of the king, see ibid., pp. 111-16. Although Locke never accepted the royalist argument that the king was absolute within his 'realm' (i.e. those areas of government that made up the exclusive province of the king) - and would certainly have rejected claims of Parliamentary supremacy, as made by Henry Parker and others - his theory of executive power seems to argue for a conception of prerogative even more expansive in some respects than that of some royalists.
97. Gray, Enlightenment's Wake, p. 76.
98. On the distinction between arbitrary power and discretionary power, see Ruth W. Grant, John Locke's Liberalism (Chicago, 1987), pp. 72-3.
99. See especially the first essay of Schmitt's Political Theology.