Chapter IX: Part 9

I shall venture to affirm that both these systems of speculative principles are just, though not in the sense intended by the parties; and that both the schemes of practical consequences are prudent, though not in the extremes to which each party, in opposition to the other, has commonly endeavoured to carry them.

That the Deity is the ultimate author of all government will never be denied by any who admits a general providence, and allows that all events in the universe are conducted by a uniform plan and directed to wise purposes. As it is impossible for the human race to subsist, at least in any comfortable or secure state, without the protection of government, government must certainly have been intended by that beneficent Being, who means the good of all His creatures; and as it has universally, in fact, taken place in all countries and all ages, we may conclude, with still greater certainty, that it was intended by that omniscient Being, who can never be deceived by any event or operation. But since he gave rise to it, not by any particular or miraculous interposition but by his concealed and universal efficacy, a sovereign cannot, properly speaking, be called his vicegerent in any other sense than every power or force being derived from him may be said to act by his commission. Whatever actually happens is comprehended in the general plan or intention of providence; nor has the greatest and most lawful prince any more reason, upon that account, to plead a peculiar sacredness or inviolable authority, than an inferior magistrate, or even a usurper, or even a robber and a pirate. The same divine superintendent who, for wise purposes, invested an Elizabeth or a Henry[103] with authority, did also, for purposes no doubt equally wise, though unknown, bestow power on a Borgia or an Angria. The same causes which gave rise to the sovereign power in every state, established likewise every petty jurisdiction in it, and every limited authority. A constable therefore, no less than a king, acts by a divine commission, and possesses an indefeasible right.

When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could at first associate them together, and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty, and received laws from their equal and companion. The conditions upon which they were willing to submit were either expressed, or were so clear and obvious that it might well be esteemed superfluous to express them. If this, then, be meant by the original contract, it cannot be denied that all government is at first founded on a contract, and that the most ancient rude combinations of mankind were formed entirely by that principle. In vain are we sent to the records to seek for this charter of our liberties. It was not written on parchment, nor yet on leaves or barks of trees. It preceded the use of writing and all the other civilized arts of life. But we trace it plainly in the nature of man, and in the equality which we find in all the individuals of that species. The force which now prevails, and which is founded on fleets and armies, is plainly political, and derived from authority, the effect of established government. A man’s natural force consists only in the vigour of his limbs and the firmness of his courage, which could never subject multitudes to the command of one. Nothing but their own consent, and their sense of the advantages of peace and order, could have had that influence.

But philosophers who have embraced a party (if that be not a contradiction in terms) are not contented with these concessions. They assert, not only that government in its earliest infancy arose from consent or the voluntary combination of the people, but also that, even at present, when it has attained its full maturity, it rests on no other foundation. They affirm that all men are still born equal, and owe allegiance to no prince or government unless bound by the obligation and sanction of a promise. And as no man, without some equivalent, would forgo the advantages of his native liberty and subject himself to the will of another, this promise is always understood to be conditional, and imposes on him no obligation unless he meets with justice and protection from his sovereign. These advantages the sovereign promises him in return, and if he fails in the execution, he has broke, on his part, the articles of engagement, and has thereby freed his subjects from all obligations to allegiance. Such, according to these philosophers, is the foundation of authority in every government, and such the right of resistance possessed by every subject.

But would these reasoners look abroad into the world they would meet with nothing that in the least corresponds to their ideas, or can warrant so refined and philosophical a theory. On the contrary, we find everywhere princes who claim their subjects as their property, and assert their independent right of sovereignty from conquest or succession. We find also everywhere subjects who acknowledge this right in their princes, and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connections are always conceived to be equally independent of our consent, in Persia and China; in France and Spain; and even in Holland and England, wherever the doctrines above mentioned have not been carefully inculcated. Obedience or subjection becomes so familiar that most men never make any inquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature. Or if curiosity ever move them, so soon as they learn that they themselves and their ancestors have for several ages, or from time immemorial, been subject to such a government or such a family, they immediately acquiesce and acknowledge their obligation to allegiance. Were you to preach, in most parts of the world, that political connections are founded altogether on voluntary consent or a mutual promise, the magistrate would soon imprison you, as seditious, for loosening the ties of obedience; if your friends did not shut you up, as delirious, for advancing such absurdities. It is strange that an act of the mind which every individual is supposed to have formed—and after he came to the use of reason too, otherwise it could have no authority—that this act, I say, should be so unknown to all of them, that over the face of the whole earth there scarce remain any traces or memory of it.

But the contract on which government is founded is said to be the original contract, and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement by which savage men first associated and conjoined their force be here meant, this is acknowledged to be real; but being so ancient, and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority. If we would say anything to the purpose, we must assert that every particular government which is lawful, and which imposes any duty of allegiance on the subject, was at first founded on consent and a voluntary compact. But besides that this supposes the consent of the fathers to bind the children, even to the most remote generations (which republican writers will never allow), besides this, I say, it is not justified by history or experience in any age or country of the world.

Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest, or both, without any pretence of a fair consent or voluntary subjection of the people. When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing sometimes violence, sometimes false pretences, to establish his dominion over a people a hundred times more numerous than his partisans. He allows no such open communication that his enemies can know with certainty their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those who are the instruments of his usurpation may wish his fall, but their ignorance of each other’s intentions keeps them in awe, and is the sole cause of his security. By such arts as these many governments have been established, and this is all the original contract they have to boast of.

The face of the earth is continually changing by the increase of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes. Is there anything discoverable in all these events but force and violence? Where is the mutual agreement or voluntary association so much talked of?

Even the smoothest way by which a nation may receive a foreign master, by marriage or a will, is not extremely honourable for the people; but supposes them to be disposed of, like a dowry or a legacy, according to the pleasure or interest of their rulers.

But where no force interposes, and election takes place, what is this election so highly vaunted? It is either the combination of a few great men who decide for the whole, and will allow no opposition, or it is the fury of a rabble that follow a seditious leader, who is not known, perhaps, to a dozen among them, and who owes his advancement merely to his own impudence, or to the momentary caprice of his fellows.

Are these disorderly elections, which are rare too, of such mighty authority as to be the only lawful foundation of all government and allegiance?

In reality there is not a more terrible event than a total dissolution of government, which gives liberty to the multitude, and makes the determination or choice of a new establishment depend upon a number which nearly approaches the body of the people; for it never comes entirely to the whole body of them. Every wise man, then, wishes to see, at the head of a powerful and obedient army, a general who may speedily seize the prize and give to the people a master, which they are so unfit to choose for themselves. So little correspondent is fact and reality to those philosophical notions.

Let not the establishment at the Revolution deceive us, or make us so much in love with a philosophical origin to government as to imagine all others monstrous and irregular. Even that event was far from corresponding to these refined ideas. It was only the succession, and that only in the regal part of the government, which was then changed; and it was only the majority of seven hundred who determined that change for near ten millions. I doubt not, indeed, but the bulk of these ten millions acquiesced willingly in the determination; but was the matter left, in the least, to their choice? Was it not justly supposed to be from that moment decided, and every man punished who refused to submit to the new sovereign? How otherways could the matter have ever been brought to any issue or conclusion?

The Republic of Athens was, I believe, the most extensive democracy which we read of in history. Yet if we make the requisite allowances for the women, the slaves, and the strangers, we shall find that that establishment was not at first made, nor any law ever voted, by a tenth part of those who were bound to pay obedience to it; not to mention the islands and foreign dominions which the Athenians claimed as theirs by right of conquest. And as it is well known that popular assemblies in that city were always full of licence and disorder, notwithstanding the forms and laws by which they were checked, how much more disorderly must they be where they form not the established constitution, but meet tumultuously on the dissolution of the ancient government in order to give rise to a new one? How chimerical must it be to talk of a choice in any such circumstances?

The Achæans enjoyed the freest and most perfect democracy of all antiquity; yet they employed force to oblige some cities to enter into their league, as we learn from Polybius.

Henry IV. and Henry VII. of England had really no other title to the throne but a parliamentary election; yet they never would acknowledge it, for fear of weakening their authority. Strange! if the only real foundation of all authority be consent and promise.

It is vain to say that all governments are, or should be, at first, founded on popular consent, as much as the necessity of human affairs will admit. This favours entirely my pretension. I maintain that human affairs will never admit of this consent; seldom of the appearance of it. But that conquest or usurpation—that is, in plain terms, force—by dissolving the ancient governments, is the origin of almost all the new ones which ever were established in the world; and that in the few cases, where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority.

My intention here is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only pretend that it has very seldom had place in any degree, and never almost in its full extent; and that therefore some other foundation of government must also be admitted.

Were all men possessed of so inflexible a regard to justice that, of themselves, they would totally abstain from the properties of others, they had for ever remained in a state of absolute liberty without subjection to any magistrates or political society; but this is a state of perfection, of which human nature is justly esteemed incapable. Again, were all men possessed of so just an understanding as always to know their own interest, no form of government had ever been submitted to but what was established on consent, and was fully canvassed by each member of the society; but this state of perfection is likewise much superior to human nature. Reason, history, and experience show us that all political societies have had an origin much less accurate and regular; and were one to choose a period of time when the people’s consent was least regarded in public transactions, it would be precisely on the establishment of a new government. In a settled constitution their inclinations are often studied; but during the fury of revolutions, conquests, and public convulsions, military force or political craft usually decides the controversy.

When a new government is established, by whatever means, the people are commonly dissatisfied with it, and pay obedience more from fear and necessity than from any idea of allegiance or of moral obligation. The prince is watchful and jealous, and must carefully guard against every beginning or appearance of insurrection. Time, by degrees, removes all these difficulties, and accustoms the nation to regard, as their lawful or native princes, that family whom at first they considered as usurpers or foreign conquerors. In order to found this opinion, they have no recourse to any notion of voluntary consent or promise, which, they know, never was in this case either expected or demanded. The original establishment was formed by violence, and submitted to from necessity. The subsequent administration is also supported by power, and acquiesced in by the people, not as a matter of choice, but of obligation. They imagine not that their consent gives their prince a title; but they willingly consent because they think that, from long possession, he has acquired a title independent of their choice or inclination.

Should it be said that by living under the dominion of a prince which one might leave, every individual has given a tacit consent to his authority, and promised him obedience, it may be answered that such implied consent can only take place where a man imagines that the matter depends on his choice. But where he thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain government, it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and abjures.

Can we seriously say that a poor peasant or artisan has a free choice to leave his own country, when he knows no foreign language or manners, and lives from day to day by the same small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean and perish the moment he leaves her.

What if the prince forbid his subjects to quit his dominions, as in Tiberius’s time it was regarded as a crime in a Roman knight that he had attempted to fly to the Parthians, in order to escape the tyranny of that emperor? Or as the ancient Muscovites prohibited all travelling under pain of death? And did a prince observe that many of his subjects were seized with the frenzy of transporting themselves to foreign countries, he would doubtless, with great reason and justice, restrain them, in order to prevent the depopulation of his own kingdom. Would he forfeit the allegiance of all his subjects by so wise and reasonable a law? Yet the freedom of their choice is surely, in that case, ravished from them.

A company of men who should leave their native country in order to people some uninhabited region might dream of recovering their native freedom; but they would soon find that their prince still laid claim to them, and called them his subjects, even in their new settlement. And in this he would but act conformably to the common ideas of mankind.

The truest tacit consent of this kind which is ever observed is when a foreigner settles in any country, and is beforehand acquainted with the prince and government and laws to which he must submit; yet is his allegiance, though more voluntary, much less expected or depended on than that of a natural born subject. On the contrary, his native prince still asserts a claim to him. And if he punishes not the renegade when he seizes him in war with his new prince’s commission, this clemency is not founded on the municipal law, which in all countries condemns the prisoner, but on the consent of princes who have agreed to this indulgence in order to prevent reprisals.

Suppose a usurper, after having banished his lawful prince and royal family, should establish his dominion for ten or a dozen years in any country, and should preserve such exact discipline in his troops and so regular a disposition in his garrisons that no insurrection had ever been raised, or even murmur heard, against his administration, can it be asserted that the people, who in their hearts abhor his treason, have tacitly consented to his authority and promised him allegiance merely because, from necessity, they live under his dominion? Suppose again their natural prince restored, by means of an army which he assembles in foreign countries, they receive him with joy and exultation, and show plainly with what reluctance they had submitted to any other yoke. I may now ask upon what foundation the prince’s title stands? Not on popular consent surely; for though the people willingly acquiesce in his authority, they never imagine that their consent makes him sovereign. They consent because they apprehend him to be already, by birth, their lawful sovereign. And as to that tacit consent, which may now be inferred from their living under his dominion, this is no more than what they formerly gave to the tyrant and usurper.

When we assert that all lawful government arises from the people, we certainly do them more honour than they deserve, or even expect and desire from us. After the Roman dominions became too unwieldy for the republic to govern, the people over the whole known world were extremely grateful to Augustus for that authority which, by violence, he had established over them; and they showed an equal disposition to submit to the successor whom he left them by his last will and testament. It was afterwards their misfortune that there never was in one family any long, regular succession; but that their line of princes was continually broke, either by private assassination or public rebellion. The prætorean bands, on the failure of every family, set up one emperor, the legions in the East a second, those in Germany perhaps a third; and the sword alone could decide the controversy. The condition of the people in that mighty monarchy was to be lamented, not because the choice of the emperor was never left to them, for that was impracticable, but because they never fell under any succession of masters, who might regularly follow each other. As to the violence and wars and bloodshed occasioned by every new settlement, those were not blameable, because they were inevitable.

The house of Lancaster ruled in this island about sixty years, yet the partisans of the white rose seemed daily to multiply in England. The present establishment has taken place during a still longer period. Have all views of right in another family been extinguished, even though scarce any man now alive had arrived at years of discretion when it was expelled, or could have consented to its dominion, or have promised it allegiance? A sufficient indication surely of the general sentiment of mankind on this head. For we blame not the partisans of the abdicated family merely on account of the long time during which they have preserved their imaginary fidelity; we blame them for adhering to a family which, we affirm, has been justly expelled, and which, from the moment the new settlement took place, had forfeited all title to authority.

But would we have a more regular, at least a more philosophical, refutation of this principle of an original contract or popular consent, perhaps the following observations may suffice.

All moral duties may be divided into two kinds. The first are those to which men are impelled by a natural instinct or immediate propensity which operates in them, independent of all ideas of obligation and of all views, either to public or private utility. Of this nature are love of children, gratitude to benefactors, pity to the unfortunate. When we reflect on the advantage which results to society from such humane instincts, we pay them the just tribute of moral approbation and esteem; but the person actuated by them feels their power and influence antecedent to any such reflection.

The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society and the impossibility of supporting it if these duties were neglected. It is thus justice or a regard to the property of others, fidelity or the observance of promises, become obligatory and acquire an authority over mankind. For as it is evident that every man loves himself better than any other person, he is naturally impelled to extend his acquisitions as much as possible; and nothing can restrain him in this propensity but reflection and experience, by which he learns the pernicious effects of that licence and the total dissolution of society which must ensue from it. His original inclination, therefore, or instinct, is here checked and restrained by a subsequent judgment or observation.

The case is precisely the same with the political or civil duty of allegiance as with the natural duties of justice and fidelity. Our primary instincts lead us either to indulge ourselves in unlimited liberty or to seek dominion over others; and it is this reflection only which engages us to sacrifice such strong passions to the interests of peace and order. A very small degree of experience and observation suffices to teach us that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt where exact obedience is not paid to it. The observation of these general and obvious interests is the source of all allegiance, and of that moral obligation which we attribute to it.

What necessity, therefore, is there to found the duty of allegiance or obedience to magistrates on that of fidelity or a regard to promises, and to suppose that it is the consent of each individual which subjects him to government, when it appears that both allegiance and fidelity stand precisely on the same foundation, and are both submitted to by mankind, on account of the apparent interests and necessities of human society? We are bound to obey our sovereign, it is said, because we have given a tacit promise to that purpose. But why are we bound to observe our promise? It must here be asserted that the commerce and intercourse of mankind, which are of such mighty advantage, can have no security where men pay no regard to their engagements. In like manner may it be said that men could not live at all in society, at least in a civilized society, without laws and magistrates and judges to prevent the encroachments of the strong upon the weak, of the violent upon the just and equitable. The obligation to allegiance being of like force and authority with the obligation to fidelity, we gain nothing by resolving the one into the other. The general interests or necessities of society are sufficient to establish both.

If the reason is asked of that obedience which we are bound to pay to government, I readily answer, because society could not otherwise subsist. And this answer is clear and intelligible to all mankind. Your answer is, because we should keep our word. But besides that, nobody, till trained in a philosophical system, can either comprehend or relish this answer; besides this, I say, you find yourself embarrassed when it is asked why we are bound to keep our word, and you can give no other answer but what would immediately, without any circuit, have accounted for our obligation to allegiance.

But to whom is allegiance due? And who are our lawful sovereigns? This question is often the most difficult of any, and liable to infinite discussions. When people are so happy that they can answer, “Our present sovereign, who inherits, in a direct line, from ancestors that have governed us for many ages,” this answer admits of no reply, even though historians, in tracing up to the remotest antiquity the origin of that royal family, may find, as commonly happens, that its first authority was derived from usurpation and violence. It is confessed that private justice, or the abstinence from the properties of others, is a most cardinal virtue; yet reason tells us that there is no property in durable objects, such as lands or houses, when carefully examined in passing from hand to hand, but must in some period have been founded on fraud and injustice. The necessities of human society, neither in private nor public life, will allow of such an accurate inquiry; and there is no virtue or moral duty but what may with facility be refined away if we indulge in a false philosophy, in sifting and scrutinizing it, by every captious rule of logic, in every light or position in which it may be placed.

The questions with regard to public property have filled infinite volumes of law and philosophy, if in both we add the commentators to the original text; and in the end we may safely pronounce that many of the rules there established are uncertain, ambiguous, and arbitrary. The like opinion may be formed with regard to the successions and rights of princes and forms of government. Many cases no doubt occur, especially in the infancy of any government, which admit of no determination from the laws of justice and equity; and our historian Rapin allows that the controversy between Edward III. and Philip de Valois was of this nature, and could be decided only by an appeal to heaven—that is, by war and violence.

Who shall tell me whether Germanicus or Drusus ought to have succeeded Tiberius had he died while they were both alive without naming either of them for his successor? Ought the right of adoption to be received as equivalent to that of blood in a nation where it had the same effect in private families, and had already in two instances taken place in the public? Ought Germanicus to be esteemed the eldest son because he was born before Drusus, or the younger because he was adopted after the birth of his brother? Ought the right of the elder to be regarded in a nation where the eldest brother had no advantage in the succession of private families? Ought the Roman Empire at that time to be esteemed hereditary because of two examples, or ought it even so early to be regarded as belonging to the stronger or present possessor as being founded on so recent a usurpation?

Commodus mounted the throne after a pretty long succession of excellent emperors, who had acquired their title, not by birth or public election, but by the fictitious rite of adoption. That bloody debauchee being murdered by a conspiracy suddenly formed between his wench and her gallant, who happened at that time to be Prætorian Prefect, these immediately deliberated about choosing a master to humankind, to speak in the style of those ages; and they cast their eyes on Pertinax. Before the tyrant’s death was known the Prefect went silently to that senator, who, on the appearance of the soldiers, imagined that his execution had been ordered by Commodus. He was immediately saluted Emperor by the officer and his attendants; cheerfully proclaimed by the populace; unwillingly submitted to by the guards; formally recognised by the senate; and passively received by the provinces and armies of the Empire.

The discontent of the Prætorian bands soon broke out in a sudden sedition, which occasioned the murder of that excellent prince; and the world being now without a master and without government, the guards thought proper to set the Empire formally to sale. Julian, the purchaser, was proclaimed by the soldiers, recognized by the senate, and submitted to by the people, and must also have been submitted to by the provinces had not the envy of the legions begot opposition and resistance. Pescennius Niger in Syria elected himself Emperor, gained the tumultuary consent of his army, and was attended with the secret good-will of the senate and people of Rome. Albinus in Britain found an equal right to set up his claim; but Severus, who governed Pannonia, prevailed in the end above both of them. That able politician and warrior, finding his own birth and dignity too much inferior to the imperial crown, professed at first an intention only of revenging the death of Pertinax. He marched as general into Italy, defeated Julian, and without our being able to fix any precise commencement even of the soldiers’ consent, he was from necessity acknowledged Emperor by the senate and people, and fully established in his violent authority by subduing Niger and Albinus.

“Inter hæc Gordianus Cæsar,” says Capitolinus, speaking of another period, “sublatus a militibus, Imperator, est appellatus, quia non erat alius in præsenti.” It is to be remarked that Gordian was a boy of fourteen years of age.

Frequent instances of a like nature occur in the history of the emperors; in that of Alexander’s successors, and of many other countries. Nor can anything be more unhappy than a despotic government of that kind, where the succession is disjointed and irregular, and must be determined on every occasion by force or election. In a free government the matter is often unavoidable, and is also much less dangerous. The interests of liberty may there frequently lead the people in their own defence to alter the succession of the crown, and the constitution being compounded of parts, may still maintain a sufficient stability by resting on the aristocratical or democratical members, though the monarchical be altered from time to time in order to accommodate it to the former.

In an absolute government when there is no legal prince who has a title to the throne, it may safely be determined to belong to the first occupier. Instances of this kind are but too frequent, especially in the Eastern monarchies. When any race of princes expires the will or destination of the last sovereign will be regarded as a title. Thus the edict of Louis XIV., who called the bastard princes to the succession in case of the failure of all the legitimate princes, would, in such an event, have some authority.[104] Thus the will of Charles II. disposed of the whole Spanish monarchy. The cession of the ancient proprietor, especially when joined to conquest, is likewise esteemed a very good title. The general bond of obligation which unites us to government is the interest and necessities of society, and this obligation is very strong. The determination of it to this or that particular prince or form of government is frequently more uncertain and dubious. Present possession has considerable authority in these cases, and greater than in private property, because of the disorders which attend all revolutions and changes of government.[105]

We shall only observe, before we conclude, that though an appeal to general opinion may justly, in the speculative sciences of metaphysics, natural philosophy, or astronomy, be esteemed unfair and inconclusive, yet in all questions with regard to morals, as well as criticism, there is really no standard by which any controversy can ever be decided. And nothing is a clearer proof that a theory of this kind is erroneous than to find that it leads to paradoxes which are repugnant to the common sentiments of mankind and to general practice and opinion. The doctrine which founds all lawful government on an original contract, or consent of the people, is plainly of this kind; nor has the ablest of its partisans in prosecution of it scrupled to affirm that absolute monarchy is inconsistent with civil society, and so can be no form of civil government at all,[106] and that the supreme power in a state cannot take from any man by taxes and impositions any part of his property without his own consent or that of his representatives.[107] What authority any moral reasoning can have which leads to opinions so wide of the general practice of mankind in every place but this single kingdom it is easy to determine.[108]

NOTES, OF THE ORIGINAL CONTRACT.

[103] Henry IV. of France.

[104] It is remarkable that in the remonstrance of the Duke of Bourbon and the legitimate princes against this destination of Louis XIV., the doctrine of the original contract is insisted on, even in that absolute government. The French nation, say they, choosing Hugh Capet and his posterity to rule over them and their posterity, where the former line fails, there is a tacit right reserved to choose a new royal family; and this right is invaded by calling the bastard princes to the throne without the consent of the nation. But the Comte de Boulainvilliers, who wrote in defence of the bastard princes, ridicules this notion of an original contract, especially when applied to Hugh Capet; who mounted the throne, says he, by the same arts which have ever been employed by all conquerors and usurpers. He got his title, indeed, recognized by the states after he had put himself in possession. But is this a choice or contract? The Comte de Boulainvilliers, we may observe, was a noted republican; but being a man of learning, and very conversant in history, he knew the people were never almost consulted in these revolutions and new establishments, and that time alone bestowed right and authority on what was commonly at first founded on force and violence. (See _État de la France_, vol. iii.)

[105] The crime of rebellion amongst the ancients was commonly marked by the terms νεωτεριζειν, _novas res moliri_.

[106] See Locke on Government, chap. 7, § 90.

[107] Locke on Government, chap. 11, § 138, 139, 140.

[108] The only passage I meet with in antiquity where the obligation of obedience to government is ascribed to a promise is in Plato—_in Critone_, where Socrates refuses to escape from prison, because he had tacitly promised to obey the laws. Thus he builds a Tory consequence of passive obedience on a Whig foundation of the original contract.

New discoveries are not to be expected in these matters. If no man, till very lately, ever imagined that government was founded on contract, it is certain it cannot, in general, have any such foundation.

OF PASSIVE OBEDIENCE.

In the former essay we endeavoured to refute the speculative systems of politics advanced in this nation, as well the religious system of the one party as the philosophical of the other. We come now to examine the practical consequences deduced by each party with regard to the measures of submission due to sovereigns.

As the obligation to justice is founded entirely on the interests of society, which require mutual abstinence from property, in order to preserve peace among mankind, it is evident that, when the execution of justice would be attended with very pernicious consequences, that virtue must be suspended, and give place to public utility in such extraordinary and such pressing emergencies. The maxim, _fiat Justitia, ruat Cœlum_ (let justice be performed though the universe be destroyed), is apparently false, and by sacrificing the end to the means shows a preposterous idea of the subordination of duties. What governor of a town makes any scruple of burning the suburbs when they facilitate the advances of the enemy? Or what general abstains from plundering a neutral country when the necessities of war require it, and he cannot otherwise maintain his army? The case is the same with the duty of allegiance; and common sense teaches us, that as government binds us to obedience only on account of its tendency to public utility, that duty must always, in extraordinary cases, when public ruin would evidently attend obedience, yield to the primary and original obligation. _Salus populi suprema Lex_ (the safety of the people is the supreme law). This maxim is agreeable to the sentiments of mankind in all ages; nor is any one, when he reads of the insurrections against a Nero, or a Philip, so infatuated with party-systems as not to wish success to the enterprise and praise the undertakers. Even our high monarchical party, in spite of their sublime theory, are forced in such cases to judge and feel and approve in conformity to the rest of mankind.

Resistance, therefore, being admitted in extraordinary emergencies, the question can only be among good reasoners with regard to the degree of necessity which can justify resistance and render it lawful or commendable. And here I must confess that I shall always incline to their side who draw the bond of allegiance the closest possible, and consider an infringement of it as the last refuge in desperate cases when the public is in the highest danger from violence and tyranny; for besides the mischiefs of a civil war, which commonly attends insurrection, it is certain that where a disposition to rebellion appears among any people it is one chief cause of tyranny in the rulers, and forces them into many violent measures which they never would have embraced had every one seemed inclined to submission and obedience. It is thus the tyrannicide or assassination, approved of by ancient maxims, instead of keeping tyrants and usurpers in awe, made them ten times more fierce and unrelenting; and is now justly, upon that account, abolished by the laws of nations, and universally condemned as a base and treacherous method of bringing to justice these disturbers of society.

Besides, we must consider that, as obedience is our duty in the common course of things, it ought chiefly to be inculcated; nor can anything be more preposterous than an anxious care and solicitude in stating all the cases in which resistance may be allowed. Thus, though a philosopher reasonably acknowledges in the course of an argument that the rules of justice may be dispensed with in cases of urgent necessity, what should we think of a preacher or casuist who should make it his chief study to find out such cases and enforce them with all the vehemence of argument and eloquence? Would he not be better employed in inculcating the general doctrine than in displaying the particular exceptions, which we are, perhaps, but too much inclined of ourselves to embrace and extend?

There are, however, two reasons which may be pleaded in defence of that party among us who have, with so much industry, propagated the maxims of resistance—maxims which, it must be confessed, are in general so pernicious and so destructive of civil society. The first is that their antagonists carrying the doctrine of obedience to such an extravagant height as not only never to mention the exceptions in extraordinary cases (which might perhaps be excusable), but even positively to exclude them, it became necessary to insist on these exceptions, and defend the rights of injured truth and liberty. The second and perhaps better reason is founded on the nature of the British constitution and form of government.

It is almost peculiar to our constitution to establish a first magistrate with such high pre-eminence and dignity that, though limited by the laws, he is in a manner, so far as regards his own person, above the laws, and can neither be questioned nor punished for any injury or wrong which may be committed by him. His ministers alone, or those who act by his commission, are obnoxious to justice; and while the prince is thus allured by the prospect of personal safety to give the laws their free course, an equal security is in effect obtained by the punishment of lesser offenders, and at the same time a civil war is avoided, which would be the infallible consequence were an attack at every turn made directly upon the sovereign. But though the constitution pays this salutary compliment to the prince, it can never reasonably be understood by that maxim to have determined its own destruction, or to have established a tame submission where he protects his ministers, perseveres in injustice, and usurps the whole power of the commonwealth. This case, indeed, is never expressly put by the laws, because it is impossible for them in their ordinary course to provide a remedy for it, or establish any magistrate with superior authority to chastise the exorbitancies of the prince. But as a right without remedy would be the greatest of all absurdities, the remedy in this case is the extraordinary one of resistance, when affairs come to that extremity that the constitution can be defended by it alone. Resistance, therefore, must of course become more frequent in the British Government than in others which are simpler and consist of fewer parts and movements. Where the king is an absolute sovereign, he has little temptation to commit such enormous tyranny as may justly provoke rebellion; but where he is limited, his imprudent ambition, without any great vices, may run him into that perilous situation. This is commonly supposed to have been the case with Charles I., and if we may now speak truth, after animosities are laid, this was also the case with James II. These were harmless, if not, in their private character, good men; but mistaking the nature of our constitution, and engrossing the whole legislative power, it became necessary to oppose them with some vehemence, and even to deprive the latter formally of that authority which he had used with such imprudence and indiscretion.

OF THE COALITION OF PARTIES.

To abolish all distinctions of party may not be practicable, perhaps not desirable, in a free government. The only parties which are dangerous are such as entertain opposite views with regard to the essentials of government, the succession of the crown, or the more considerable privileges belonging to the several members of the constitution; where there is no room for any compromise or accommodation, and where the controversy may appear so momentous as to justify even an opposition by arms to the pretensions of antagonists. Of this nature was the animosity continued for above a century between the parties in England—an animosity which broke out sometimes into civil war, which occasioned violent revolutions, and which continually endangered the peace and tranquillity of the nation. But as there has appeared of late the strongest symptoms of a universal desire to abolish these party distinctions, this tendency to a coalition affords the most agreeable prospect of future happiness, and ought to be carefully cherished and promoted by every lover of his country.

There is not a more effectual method of promoting so good an end than to prevent all unreasonable insult and triumph of the one party over the other, to encourage moderate opinions, to find the proper medium in all disputes, to persuade each that its antagonist may possibly be sometimes in the right, and to keep a balance in the praise and blame which we bestow on either side. The two former essays, concerning the original contract and passive obedience, are calculated for this purpose with regard to the philosophical controversies between the parties, and tend to show that neither side are in these respects so fully supported by reason as they endeavour to flatter themselves. We shall proceed to exercise the same moderation with regard to the historical disputes, by proving that each party was justified by plausible topics, that there were on both sides wise men who meant well to their country, and that the past animosity between the factions had no better foundation than narrow prejudice or interested passion.

The popular party, who afterwards acquired the name of Whigs, might justify by very specious arguments that opposition to the crown, from which our present free constitution is derived. Though obliged to acknowledge that precedents in favour of prerogative had uniformly taken place during many reigns before Charles I., they thought that there was no reason for submitting any longer to so dangerous an authority. Such might have been their reasoning. The rights of mankind are so sacred that no prescription of tyranny or arbitrary power can have authority sufficient to abolish them. Liberty is the most inestimable of all blessings, and wherever there appears any probability of recovering it, a nation may willingly run many hazards, and ought not even to repine at the greatest effusion of blood or dissipation of treasure. All human institutions, and none more than government, are in continual fluctuation. Kings are sure to embrace every opportunity of extending their prerogatives, and if favourable incidents be not also laid hold of to extend and secure the privileges of the people, a universal despotism must for ever prevail among mankind. The example of all the neighbouring nations proves that it is no longer safe to entrust with the crown the same exorbitant prerogatives which had formerly been exercised during rude and simple ages. And though the example of many late reigns may be pleaded in favour of a power in the prince somewhat arbitrary, more remote reigns afford instances of stricter limitations imposed on the crown, and those pretensions of the Parliament, now branded with the title of innovations, are only a recovery of the just rights of the people.

These views, far from being odious, are surely large and generous and noble. To their prevalence and success the kingdom owes its liberty, perhaps its learning, its industry, commerce, and naval power. By them chiefly the English name is distinguished among the society of nations, and aspires to a rivalship with that of the freest and most illustrious commonwealths of antiquity. But as all these mighty consequences could not reasonably be foreseen at the time when the contest began, the royalists of that age wanted not specious arguments on their side, by which they could justify their defence of the then established prerogatives of the crown. We shall state the question, as it might appear to them at the assembling of that Parliament, which by their violent encroachments on the crown, began the civil wars.

The only rule of government, they might have said, known and acknowledged among men, is use and practice. Reason is so uncertain a guide that it will always be exposed to doubt and controversy. Could it ever render itself prevalent over the people, men had always retained it as their sole rule of conduct; they had still continued in the primitive, unconnected state of nature, without submitting to political government, whose sole basis is not pure reason, but authority and precedent. Dissolve these ties, you break all the bonds of civil society, and leave every man at liberty to consult his particular interest, by those expedients which his appetite, disguised under the appearance of reason, shall dictate to him. The spirit of innovation is in itself pernicious, however favourable its particular object may sometimes appear. A truth so obvious that the popular party themselves are sensible of it, and therefore cover their encroachments on the crown by the plausible pretence of their recovering the ancient liberties of the people.

But the present prerogatives of the crown, allowing all the suppositions of that party, have been incontestably established ever since the accession of the house of Tudor, a period which, as it now comprehends a hundred and sixty years, may be allowed sufficient to give stability to any constitution. Would it not have appeared ridiculous in the reign of the Emperor Adrian to talk of the constitution of the republic as the rule of government, or to suppose that the former rights of the senate and consuls and tribunes were still subsisting?

But the present claims of the English monarchs are infinitely more favourable than those of the Roman emperors during that age. The authority of Augustus was a plain usurpation, grounded only on military violence, and forms such an era in the Roman history as is obvious to every reader. But if Henry VII. really, as some pretend, enlarged the power of the crown, it was only by insensible acquisitions which escaped the apprehension of the people, and have scarcely been remarked even by historians and politicians. The new government, if it deserves the name, is an imperceptible transition from the former; is entirely engrafted on it; derives its title fully from that root; and is to be considered only as one of those gradual revolutions to which human affairs in every nation will be for ever subject.

The House of Tudor, and after them that of Stuart, exercised no prerogatives, but what had been claimed and exercised by the Plantagenets. Not a single branch of their authority can be said to be altogether an innovation. The only difference is that perhaps the more ancient kings exerted these powers only by intervals, and were not able, by reason of the opposition of their barons, to render them so steady a rule of administration.[109] But the sole inference from this fact is that those times were more turbulent and seditious, and that the laws have happily of late gained the ascendant.

Under what pretence can the popular party now talk of recovering the ancient constitution? The former control over the kings was not placed in the commons, but in the barons. The people had no authority, and even little or no liberty, till the crown, by suppressing these factious tyrants, enforced the execution of the laws, and obliged all the subjects equally to respect each other’s rights, privileges, and properties. If we must return to the ancient barbarous and Gothic constitution, let those gentlemen, who now behave themselves with so much insolence to their sovereign, set the first example. Let them make court to be admitted as retainers to a neighbouring baron, and by submitting to slavery under him, acquire some protection to themselves, together with the power of exercising rapine and oppression over their inferior slaves and villains. This was the condition of the commons among their remote ancestors.

But how far back shall we go, in having recourse to ancient constitutions and governments? There was a constitution still more ancient than that to which these innovators affect so much to appeal. During that period there was no Magna Charta. The barons themselves possessed few regular, stated privileges, and the House of Commons probably had not an existence.