The Duty of Submission to Civil Government Explained
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The Duty of Submission to Civil Government Explained
The subject of this chapter is sufficiently distinguished from the subject of the last, as the motives which actually produce civil obedience may be, and often are, very different from the reasons which make that obedience a duty.
In order to prove civil obedience to be a moral duty, and an obligation upon the conscience, it hath been usual with many political writers, at the head of whom we find the venerable name of Locke, to state a compact between the citizen and the state, as the ground and cause of the relation between them; which compact, binding the parties for the same general reason that private contracts do, resolves the duty of submission to civil government into the universal obligation of fidelity in the performance of promises. This compact is two-fold:
First, An express compact by the primitive founders of the state, who are supposed to have convened for the declared purpose of settling the terms of their political union, and a future constitution of government. The whole body is supposed, in the first place, to have unanimously consented to be bound by the resolutions of the majority; that majority, in the next place, to have fixed certain fundamental regulations; and then to have constituted, either in one person, or in an assembly, (the rule of succession or appointment being at the same time determined,) a standing legislature, to whom, under these pre-established restrictions, the government of the state was thenceforward committed, and whose laws the several members of the convention were, by their first undertaking, thus personally engaged to obey.—This transaction is sometimes called the social compact, and these supposed original regulations compose what are meant by the constitution, the fundamental laws of the constitution; and form, on one side, the inherent, indefeasible prerogative of the crown; and, on the other, the unalienable, imprescriptible birth-right of the subject.
Secondly, A tacit of implied compact, by all succeeding members of the state, who, by accepting its protection, consent to be bound by its laws; in like manner, as whoever voluntarily enters into a private society is understood, without any other or more explicit stipulation, to promise a conformity with the rules and obedience to the government of that society, as the known conditions upon which he is admitted to a participation of its privileges.
This account of the subject, although specious, and patronized by names the most respectable, appears to labour under the following objections; that it is founded upon a supposition false in fact, and leading to dangerous conclusions.
No social compact, similar to what is here described, was ever made or entered into in reality; no such original convention of the people was ever actually holden, or in any country could be holden, antecedent to the existence of civil government in that country. It is to suppose it possible to call savages out of caves and deserts, to deliberate and vote upon topicks, which the experience, and studies, and refinements of civil life alone suggest. Therefore no government in the universe began from this original. Some imitation of a social compact may have taken place at a revolution. The present age has been witness to a transaction, which bears the nearest resemblance to this political ideal, of any of which history has preserved the account or memory. I refer to the establishment of the United States of North-America. We saw the people assembled to elect deputies, for the avowed purpose of framing the constitution of a new empire. We saw this deputation of the people deliberating and resolving upon a form of government, erecting a permanent legislature, distributing the functions of sovereignty, establishing and promulgating a code of fundamental ordinances, which were to be considered by succeeding generations, not merely as laws and acts of the state, but as the very terms and conditions of the confederation; as binding not only upon the subjects and magistrates of the state, but as limitations of power, which were to control and regulate the future legislature. Yet even here much was presupposed. In settling the constitution, many important parts were presumed to be already settled. The qualifications of the constituents who were admitted to vote in the election of members of congress, as well as the mode of electing the representatives, were taken from the old forms of government. That was wanting, from which every social union should set off, and which alone makes the resolutions of the society the act of the individual,–the unconstrained consent of all to be bound by the decision of the majority; and yet, without this previous consent, the revolt, and the regulations which followed it, were compulsory upon dissentients.
But the original compact, we are told, is not proposed as a fact, but as a fiction, which furnishes a commodious explication of the natural rights and duties of sovereigns and subjects. In answer to this representation of the matter, we observe, that the original compact, if it be not a fact, is nothing; can confer no actual authority upon laws or magistrates; nor afford any foundation to rights, which are supposed to be real and existing. But the truth is, that in the books, and in the apprehension, of those who deduce our civil rights and obligations a pactis, the original convention is appealed to and treated of as a reality.
Whenever the disciplines of this system speak of the constitution; of the fundamental articles of the constitution; of laws being constitutional or unconstitutional; of inherent, unalienable, inextinguishable rights, either in the prince, or in the people; or indeed of any laws, usages, or civil rights, as transcending the authority of the subsisting legislature, or possessing a force and sanction superiour to what belong to the modern acts and edicts of the legislature, they secretly refer us to what passed at the original convention. They would teach us to believe, that certain rules and ordinances were established by the people, at the same time that they settled the charter of government, and the powers as well as the form of the future legislature; that this legislature consequently, deriving its commission and existence from the consent and act of the primitive assembly (of which indeed it is only the standing deputation), continues subject, in the exercise of its offices, and as to the extent of its power, to the rules, reservations, and limitations which the same assembly then made and prescribed to it.
“As the first members of the state were bound by express stipulation to obey the government which they had erected, so the succeeding inhabitants of the same country are understood to promise allegiance to the constitution and government they find established, by accepting its protection, claiming its privileges, and acquiescing in its laws; more especially, by the purchase or inheritance of lands, to the possession of which, allegiance to the state is annexed, as the service and condition of the tenure.” Smoothly as this [unreadable] of argument proceeds, little of it will endure examination. The native subjects of modern states are not conscious of any stipulation with their sovereigns, of ever exercising an election whether they will be bound or not by the acts of the legislature, of any alternative being proposed to their choice, of a promise either required or give; nor do they apprehend that the validity or authority of the laws depends at all upon their recognition or consent. In all stipulations, whether they be expressed or implied, private or publick, formal or constructive, the parties stipulating must both possess the liberty of assent and refusal, and also be conscious of this liberty; which cannot with truth be affirmed of the subjects of civil government, as government is now, or ever was, actually administered. This is a defect, which no arguments can excuse or supply: all presumptions of consent, without this consciousness, or in opposition to it, are vain and erroneous. Still less is it possible to reconcile with any idea of stipulation the practice, in which all European nations agree of founding allegiance upon the circumstance of nativity, that is, of claiming and treating as subjects all those are born within the confines of their dominions, although removed to another country in their youth or infancy. In this instance certainly the state does not presume a compact. Also if the subject be bound only by his own consent, and if the voluntary abiding in the country be the proof and intimation of that consent, by what arguments should we defend the right, which sovereigns universally assume, of prohibiting, when they please, the departure of their subjects out of the realm?
Again, when it is contended that the taking and holding possession of land amounts to an acknowledgement of the sovereign, and a virtual promise of allegiance to his laws, it is necessary to the validity of the argument to prove, that the inhabitants, who first composed and constituted the state, collectively possessed a right to the soil of the country;–a right to parcel it out to whom they pleased, and to annex to the donation what conditions they thought fit. How came they by this right? An agreement amongst themselves would not confer it: that could only adjust what already belonged to them. A society of men vote themselves to be the owners of a region of the world;–does that vote, unaccompanied especially with any culture, inclosure, or proper act of occupation, make it theirs? does it entitle them to exclude others from it, or to dictate the conditions upon which it shall be enjoyed? Yet this original collective right and ownership is the foundation of all the reasoning, by which the duty of allegiance is inferred from the possession of land.
The theory of government which affirms the existence and the obligation of a social compact, would, after all merit little discussion, and, however groundless and unnecessary, should receive no opposition from us, did it not appear to lead to conclusions unfavourable to the improvement, and to the peace, of human society.
1st. Upon the supposition that government was first erected by, and that it derives all its just authority from, resolutions entered into by a convention of the people, it is capable of being presumed, that many points were settled by that convention, anteriour to the establishment of the subsisting legislature, and which the legislature, consequently, has no right to alter, or interfere with. These points are called the fundamentals of the constitution; and as it is impossible to determine how many, or what they are, the suggesting of any such serves extremely to embarrass the deliberations of the legislature, and affors a dangerous pretense for disputing the authority of the laws. It was this sort of reasoning (so far as reasoning of any kind was employed in the question) that produced in this nation the doubt, which so much agitated the minds of men in the reign of the second Charles, whether an Act of Parliament could of right alter or limited the succession of the crown.
2dly. If it be by virtue of a compact, that the subject owes obedience to civil government, it will follow that he ought to abide by the form of government which he finds established, be it ever so absurd or inconvenient. He is bound by his bargain. It is not permitted to any man to retreat from his engagement, merely because he finds the performance disadvantageous, or because he has an opportunity of entering into a better. This law of contracts is universal: and to call the relation between the sovereign and the subjects a contract, yet not to apply to it the rules, or allow of the effects of a contract, is an arbitrary use of names, and an unsteadiness in reasoning, which can teach nothing. Resistance to the encroachments of the supreme magistrate may be justified upon this principle; recourse to arms, for the purpose of bringing about an amendment of the constitution, never can. No form of government contains a provision for its own dissolution; and few governours will consent to the extinction, or even to any abridgment, of their own power. It does not therefore appear, how despotick governments can ever, in consistency with the obligation of the subject, be changed or mitigated. Despotism is the constitution of many states: and whilst a despotick prince exacts from his subjects the most rigorous servitude, according to this account, he is only holding them to their agreement. A people may vindicate, by force, the rights which the constitution has left them; but every attempt to narrow the prerogative of the crown, by new limitations, and in opposition to the will of the reigning prince, whatever opportunities may invite, or success follow it, must be condemned as an infraction of the compact between the sovereign and the subject.
3dly. Every violation of the compact on the part of the governour releases the subject from his allegiance, and dissolves the government. I did not perceive how we can avoid this consequence, if we found the duty of allegiance upon compact, and confess any analogy between the social compact and other contracts. In private contracts, the violation and non-performance of the conditions, by one of the parties, vacates the obligation of the other. Now the terms and articles of the social compact being no where extant or expressed; the rights and offices of the administrator of an empire being so many and various; the imaginary and controverted line of his prerogative being so liable to be overstepped in one part or other of it: the position, that every such transgression amounts to a forfeiture of the government, and consequently authorizes the people to withdraw their obedience, and provide for themselves by a new settlement, would endanger the stability of every political fabric in the world, and has in fact always supplied the disaffected with a topick of seditious declamation. If occasions have arisen, in which this plea has been resorted to with justice and success, they have been occasions in which a revolution was defensible upon other and plainer principles. The plea itself is at all times captious and unsafe.
Wherefore, rejecting the intervention of a compact, as unfounded in its principle, and dangerous in the application, we assign for the only ground of the subject’s obligation, The Will of God, As Collected From Expediency.
The steps by which the argument proceeds are few and direct. “It is the will of God that the happiness of human life be promoted:”—this is the first step, and the foundation not only of this, but of every moral conclusion. “Civil society conduces to that end;”—this is the second proposition. “Civil societies cannot be upholden, unless in each, the interest of the whole society be binding upon every part and member of it:” this is the third step, and conducts us to the conclusion, namely, “that so long as the interest of the whole society requires it, that is, so long as the established government cannot be resisted or changed without publick inconveniency, it is the will of God (which will universally determines our duty) that the established government be obeyed,”—and no longer.
This principle being admitted, the justice of every particular case of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability and expense of redressing it on the other.
But who shall judge of this? We answer, “Every man for himself.” In contentions between the sovereign and the subject, the parties acknowledge no common arbitrator; and it would be absurd to refer the decision to those whose conduct has provoked the question, and whose own interest, authority, and fate, are immediately concerned in it. The danger of errour and abuse is no objection to the rule of expediency, because every other rule is liable to the same or greater; and every rule that can be propounded upon the subject (like all rules indeed which appeal to, or bind, the conscience) must in the application depend upon private judgment. It may be observed, however, that it ought equally to be accounted the exercise of a man’s own private judgment, whether he be determined by reasonings and conclusions of his own, or submit to be directed by the advice of others, provided he be free to choose his guide.
We proceed to point out some easy but important inferences, which result from the substitution of publick expediency into the place of all implied compacts, promises, or conventions whatsoever.
I. It may be as much a duty, at one time, to resist government, as it is, at another, to obey it; to wit, whenever more advantage will, in our opinion, accrue to the community, from resistance, than mischief.
II. The lawfulness of resistance, or the lawfulness of a revolt, does not depend alone upon the grievance which is sustained or feared, but also upon the probably expense and event of the content. They who concerned the revolution in England were justifiable in their counsels, because, from the apparent disposition of the nation, and the strength and character of the parties engaged, the measure was likely to be brought about with little mischief or bloodshed; whereas it might have been a question with many friends of their country, whether the injuries then endured and threatened would have authorized the renewal of a doubtful civil war.
III. Irregularity in the first foundation of a state, or subsequent violence, fraud, or injustice in getting possession of the supreme power, are not sufficient reasons for resistance, after the government is one peaceably settled. No subject of the British empire conceives himself engaged to vindicate the justice of the Norman claim or conquest, or apprehends that his duty in any manner depends upon that controversy. So, likewise, if the House of Lancaster, or even the posterity of Cromwell, had been at this day seated upon the throne of England, we should have been as little concerned to inquire how the founder of the family came there. No civil contests are so futile, although none have been so furious and sanguinary, as those which are excited by a disputed succession.
IV. Not every invasion of the subject’s rights, or liberty, or of the constitution; not every breach of promise, or of oath; not every stretch of prerogative, abuse of power, or neglect of duty by the chief magistrate, or by the whole or any branch of the legislative body, justifies resistance, unless these crimes draw after them publick consequences of sufficient magnitude to outweigh the evils of civil disturbance. Nevertheless, every violation of the constitution ought to be watched with jealousy, and resented as such, beyond what the quantity of estimable damage would require or warrant; because a known and settled usage of governing affords the only security against the enormities of uncontrolled dominion, and because this security is weakened by every encroachment which is made without opposition, or opposed without effect.
V. No usage, law, or authority whatever, is so binding, that it need or ought to be continued, when it may be changed with advantage to the community. The family of the prince, the order of succession, the prerogative of the crown, the form and parts of the legislature, together with the respective powers, office, duration, and mutual dependency of the several parts, are all only so many laws, mutable like other laws, whenever expediency requires, either by the ordinary act of the legislature, or, if the occasion deserve it, by the interposition of the people. These points are wont to be approached with a kind of awe; they are represented to the mind as principles of the constitution settled by our ancestors, and, being settled, to be no more committed to innovation or debate; as foundations never to be stirred; as the terms and conditions of the social compact, to which every citizen of the state has engaged his fidelity, by virtue of a promise which he cannot now recall. Such reasons have no place in our system: to us, if there be any good reason for treating these with more deference and respect than other laws, it is, either the advantage of the present constitution of government (which reason must be of different force in different countries), or because in all countries it is of importance, that the form and usage of governing be acknowledged and understood, as well by the governours as by the governed, and because the seldomer it is changed, the more perfectly it will be known by both sides.
VI. As all civil obligation is resolved into expediency, what it may be asked, is the difference between the obligation of an Englishman and a Frenchman? or why, since the obligation of both appears to be founded in the same reason, is a Frenchman bound in conscience to bear any thing from his king, which an Englishman would not be bound to bear? Their conditions may differ, but their rights, according to this account, should seem to be equal; and yet we are accustomed to speak of the rights as well as of the happiness of a free people, compared with what belong to the subjects of absolute monarchies: how, you will say, can this comparison be explained, unless we refer to a difference in the compacts by which they are respectively bound?—This is a fair question, and the answer to it will afford a further illustration of our principles. We admit then that there are many things which a Frenchman is bound in conscience, as well as by coercion, to endure at the hands of his prince, to which an Englishman would not be obliged to submit; but we assert, that it is for these two reasons alone: first, because the same act of the prince is not the same grievance, where it is agreeable to the constitution, and where it infringes it; secondly, because redress in the two cases is not equally attainable. Resistance cannot be attempted with equal hopes of success, or with the same prospect of receiving support from others, where the people are reconciled to their sufferings, as where they are alarmed by innovation. In this way, and no otherwise, the subjects of different states possess different civil rights; the duty of obedience is defined by different boundaries; and the point of justifiable resistance placed at different parts of the scale of suffering; all which is sufficiently intelligible without a social compact.
VII. “The interest of the whole society is binding upon every part of it.” No rule, short of this, will provide for the stability of civil government, or for the peace and safety of social life. Wherefore, as individual members of the state are not permitted to pursue their private emolument to the prejudice of the community, so is it equally a consequence of this rule, that no particular colony, province, town, or district, can justly concert measures for their separate interest, which shall appear at the same time to diminish the sum of publick prosperity. I do not mean, that it is necessary to the justice of a measure, that it profit each and every part of the community; (for, as the happiness of the whole may be increased, whilst that of some parts is diminished, it is possible that the conduct of one part of an empire may be detrimental to some other part, and yet, just, provided one part gain more in happiness than the other part loses, so that the common weal be augmented by the change:) but what I affirm is, that those counsels can never be reconciled with the obligations resulting from civil union, which cause the whole happiness of the society to be impaired for the conveniency of a part. This conclusion is applicable to the question of right between Great Britain and her revolted colonies. Had I been an American, I should not have thought it enough to have had it even demonstrated, that a separation from the parent state would produce effects beneficial to America; my relation to that state imposed upon me a further inquiry, namely, whether the whole happiness of the empire was likely to be promoted by such a measure: not indeed the happiness of every part; that was not necessary, nor to be expected;–but whether what Great Britain would lose by the separation was likely to be compensated to the joint stock of happiness, by the advantages which America would receive from it. The contested claims of sovereign states, and their remote dependencies, may be submitted to the adjudication of this rule with mutual safety. A publick advantage is measured by the advantage which each individual receives, and by the number of those who receive it. A publick evil is compounded of the same proportions. Whilst, therefore, a colony is small, or a province thinly inhabited, if a competition of interests arise between the original country and their acquired dominions, the former ought to be preferred, because it is fit that if one must necessarily be sacrificed, the less give place to the greater; but when, by an increase of population, the interest of the provinces begins to bear a considerable proportion to the entire interest of the community, it is possible that they may suffer so much by their subjection, that not only theirs, but the whole happiness of the empire may be obstructed by their union. The rule and principle of the calculation being still the same, the result is different; and this difference begets a new situation, which entitles the subordinate parts of the state to more equal terms of confederation, and, if these be refused, to independency.