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.