Part 25

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.​ 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.​

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,​ 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.​ 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.​

NOTES, OF THE ORIGINAL CONTRACT.

Henry IV. of France.

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.)

The crime of rebellion amongst the ancients was commonly marked by the terms νεωτεριζειν, novas res moliri.

See Locke on Government, chap. 7, § 90.

Locke on Government, chap. 11, § 138, 139, 140.

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.