The American Founding: Discourses Concerning Government
To depend upon the Will of a Man is Slavery.
This, as he thinks, is farther sweetened, by asserting, that he doth not inquire what the rights of a People are, but from whence; not considering, that whilst he denies they can proceed from the Laws of natural Liberty, or any other root than the Grace and Bounty of the Prince, he declares they can have none at all. For as Liberty solely consists in an independency upon the Will of another, and by the name of Slave we understand a man, who can neither dispose of his Person nor Goods, but enjoys all at the will of his Master; there is no such thing in nature as a Slave, if those men or Nations are not Slaves, who have no other title to what they enjoy, than the grace of the Prince, which he may revoke whensoever he pleaseth. But there is more than ordinary extravagance in his assertion, That the greatest Liberty in the World is for a People to live under a Monarch, when his whole Book is to prove, That this Monarch hath his right from God and Nature, is endowed with an unlimited Power of doing what he pleaseth, and can be restrained by no Law. If it be Liberty to live under such a Government, I desire to know what is Slavery. It has bin hitherto believed in the World, that the Assyrians, Medes, Arabs, Egyptians, Turks, and others like them, lived in Slavery, because their Princes were Masters of their Lives and Goods: Whereas the Grecians, Italians, Gauls, Germans, Spaniards, and Catthaginians, as long as they had any Strength, Vertue or Courage amongst them, were esteemed free Nations, because they abhorred such a Subjection. They were, and would be governed only by Laws of their own making: Potentiora erant Legum quam hominum Imperia. Even their Princes had the authority or credit of persuading, rather than the power of commanding. But all this was mistaken: These men were Slaves, and Asiaticks were Freemen. By the same rule the Venetians, Switsers, Grisons, and Hollanders, are not free Nations: but Liberty in its perfection is enjoyed in France, and Turky. The intention of our Ancestors was, without doubt, to establish this amongst us by Magna Charta, and other preceding or subsequent Laws; but they ought to have added one clause, That the contents of them should be in force only so long as it should please the King. King Alfred, upon whose Laws Magna Charta was grounded, when he said the English Nation was as free as the internal thoughts of a Man, did only mean, that it should be so as long as it pleased their Master. This it seems was the end of our Law, and we who are born under it, and are descended from such as have so valiantly defended their rights against the encroachments of Kings, have followed after vain shadows, and without the expence of Sweat, Treasure, or Blood, might have secured their beloved Liberty, by casting all into the King's hands.
We owe the discovery of these Secrets to our Author, who after having so gravely declared them, thinks no offence ought to be taken at the freedom he assumes of examining things relating to the Liberty of Mankind, because he hath the right which is common to all: But he ought to have considered, that in asserting that right to himself, he allows it to all Mankind. And as the temporal good of all men consists in the preservation of it, he declares himself to be a mortal Enemy to those who endeavour to destroy it. If he were alive, this would deserve to be answered with Stones rather than Words. He that oppugns the publick Liberty, overthrows his own, and is guilty of the most brutish of all Follies, whilst he arrogates to himself that which he denies to all men.
I cannot but commend his Modesty and Care not to detract from the worth of learned men; but it seems they were all subject to error, except himself, who is rendered infallible through Pride, Ignorance, and Impudence. But ifHooker and Aristotle were wrong in their fundamentals concerning natural Liberty, how could they be in the right when they built upon it? Or if they did mistake, how can they deserve to be cited? or rather, why is such care taken to pervert their sense? It seems our Author is by their errors brought to the knowledge of the Truth. Men have heard of a Dwarf standing upon the Shoulders of a Giant, who saw farther than the Giant; but now that the Dwarf standing on the ground sees that which the Giant did overlook, we must learn from him. If there be sense in this, the Giant must be blind, or have such eyes only as are of no use to him. He minded only the things that were far from him: These great and learned men mistook the very principle and foundation of all their Doctrine. If we will believe our Author, this misfortune befel them because they too much trusted to the Schoolmen. He names Aristotle, and I presume intends to comprehend Plato, Plutarch, Thucydides, Xenophon, Polybius, and all the antient Grecians, Italians, and others, who asserted the natural freedom of Mankind, only in imitation of the Schoolmen, to advance the power of the Pope; and would have compassed their design, ifFilmer and his Associates had not opposed them. These men had taught us to make the unnatural distinction between Royalist and Patriot, and kept us from seeing, That the relation between King and People is so great, that their well being is reciprocal. If this be true, how came Tarquin to think it good for him to continue King at Rome, when the People would turn him out? or the People to think it good for them to turn him out, when he desired to continue in? Why did the Syracusians destroy the Tyranny of Dionysius, which he was not willing to leave, till he was pulled out by the heels? How could Nero think of burning Rome? Or why did Caligula wish the People had but one Neck, that he might strike it off at one blow, if their Welfare was thus reciprocal? 'Tis not enough to say, These were wicked or mad men; for other Princes may be so also, and there may be the same reason of differing from them. For if the proposition be not universally true, ‘tis not to be received as true in relation to any, till it be particularly proved; and then 'tis not to be imputed to the quality of Prince, but to the personal vertue of the Man.
I do not find any great matters in the passages taken out of Bellarmin, which our Author says, comprehend the strength of all that ever he had heard, read, or seen produced for the natural Liberty of the Subject: but he not mentioning where they are to be found, I do not think my self obliged to examin all his Works, to see whether they are rightly cited or not; however there is certainly nothing new in them: We see the same, as to the substance, in those who wrote many Ages before him, as well as in many that have lived since his time, who neither minded him, nor what he had written. I dare not take upon me to give an account of his Works, having read few of them; but as he seems to have laid the foundation of his Discourses in such common Notions as were assented to by all Mankind, those who follow the same method have no more regard to Jesuitism and Popery, tho he was a Jesuit and a Cardinal, than they who agree with Faber and other Jesuits in the principles of Geometry which no sober man did ever deny.
Popular Governments are less Subject to Civil Disorders than Monarchies; manage them more ably, and more easily recover out of them.
It may seem strange to some that I mention Seditions, Tumults, and Wars, upon just occasions; but I can find no reason to retract the term. God intending that men should live justly with one another, dos certainly intend that he or they who do no wrong, should suffer none; and the Law that forbids Injuries, were of no use, if no Penalty might be inflicted on those that will not obey it. If Injustice therefore be evil, and Injuries forbidden, they are also to be punished; and the Law instituted for their prevention, must necessarily intend the avenging of such as cannot be prevented. The work of the Magistracy is to execute this Law; the Sword of Justice is put into their hands to restrain the fury of those within the Society who will not be a Law to themselves, and the Sword of War to protect the people against the violence of Foreigners. This is without exception, and would be in vain if it were not. But the Magistrate who is to protect the people from Injury, may, and is often known not to have done it: he sometimes renders his office useless by neglecting to do Justice; sometimes mischievous by overthrowing it. This strikes at the root of God's general Ordinance, That there should be Laws; and the particular Ordinances of all societies that appoint such as seem best to them. The Magistrate therefore is comprehended under both, and subject to both, as well as private men.
The ways of preventing or punishing Injuries, are Judicial or Extrajudicial. Judicial proceedings are of force against those who submit or may be brought to trial, but are of no effect against those who resist, and are of such power that they cannot be constrained. It were absurd to cite a man to appear before a Tribunal who can aw the Judges, or has Armies to defend him; and impious to think that he who has added treachery to his other Crimes, and usurped a Power above the Law, should be protected by the enormity of his wickedness. Legal proceedings therefore are to be used when the Delinquent submits to the Law; and all are just, when he will not be kept in order by the legal.
The word Sedition is generally applied to all numerous Assemblies, without or against the Authority of the magistrate, or of those who assume that Power. Athaliah and Jezebel were more ready to cry out Treason than David; and examples of that sort are so frequent, that I need not alleg them.
Tumult is from the disorderly manner of those Assemblies, where things can seldom be done regularly; and War is that decertatio per vim, or trial by force, to which men come when other ways are ineffectual.
If the Laws of God and Men are therefore of no effect, when the Magistracy is left at liberty to break them; and if the Lusts of those who are too strong for the Tribunals of Justice, cannot be otherwise restrained than by Sedition, Tumults, and War, those Seditions, Tumults, and Wars, are justified by the Laws of God and man.
I will not take upon me to enumerate all the cases in which this may be done, but content my self with three, which have most frequently given occasion for proceedings of this kind.
The first is, When one or more men take upon them the Power and Name of a Magistracy, to which they are not justly called.
The second, When one or more being justly called, continue in their Magistracy longer than the Laws by which they are called do prescribe.
And the third, When he or they who are rightly called, do assume a Power, tho within the time prescribed, that the Law dos not give; or turn that which the Law dos give, to an end different and contrary to that which is intended by it.
For the first, Filmer forbids us to examine Titles: he tells us, we must submit to the Power, whether acquired by Usurpation or otherwise; not observing the mischievous Absurdity of rewarding the most detestable Villainies with the highest Honours, and rendring the veneration due to the supreme Magistrate, as Father of the People, to one who has no other advantage above his Brethren, than what he has gained by injuriously dispossessing or murdering him that was so. Hobbs fearing the advantages that may be taken from such desperate nonsense, or not thinking it necessary to his end to carry the matter so far, has no regard at all to him who comes in without Title or Consent; and, denying him to be either King or Tyrant, gives him no other name than "Hostis et Latro; "and allows all things to be lawful against him, that may be done to a public enemy or pyrate : which is as much as to say, any man may destroy him how he can. Whatever he may be guilty of in other respects, he dos in this follow the voice of Mankind, and the dictates of common sense: For no man can make himself a Magistrate for himself; and no man can have the right of a magistrate, who is not a Magistrate. If he be justly accounted an Enemy to all, who injures all; he above all must be the public Enemy of a Nation, who, by usurping a power over them, dos the greatest and most publick injury that a People can suffer: For which reason, by an established Law among the most virtuous Nations, every man might kill a Tyrant; and no Names are recorded in History with more honour, than of those who did it.
These are by other authors called tyranni sine titulo. and that name is given to all those who obtain the supreme Power by illegal and unjust means. The Laws which they overthrow can give them no protection; and every man is a souldier against him who is a publick Enemy.
The same rule holds tho they are more in number, as the Magi who usurped the Dominion of Persia after the death of Cambyses; the thirty Tyrants at Athens overthrown by Thrasibulus; those of Thebes slain by Pelopidas; the Decemviri of Rome, and others: For tho the multitude of Offenders may sometimes procure impunity, yet that act which is wicked in one, must be so in ten or twenty; and whatever is lawful against one Usurper is so against them all.
2. If those who were rightly created continue beyond the time limited by the Law, 'tis the same thing. That which is expir'd, is as if it had never bin. He that was created Consul for a year, or Dictator for six months, was after that a private man; and if he had continued in the exercise of his Magistracy, had bin subject to the same punishment as if he had usurped it at the first. This was known to Epaminondas; who finding that his Enterprize against Sparta could not be accomplished within the time for which he was made Bœotarches, rather chose to trust his Countrymen with his life than to desist; and was saved merely through an admiration of his Virtue, assurance of his good Intentions, and the glory of the Action.
The Roman Decemviri, tho duly elected, were proceeded against as private men usurping the Magistracy, when they continued beyond their time. Other Magistrates had ceased; there was none that could regularly call the Senate or People to an Assembly: but when their ambition was manifest, and the people exasperated by the death of Virginia, they laid aside all ceremonies. The Senate and People met, and exercising their Authority in the same manner as if they had bin regularly called by the Magistrate appointed to that end, they abrogated the Power of the Decemviri, proceeded against them as enemies and tyrants, and by that means preserved themselves from utter ruin.
3. The same course is justly used against a legal Magistrate, who takes upon him (tho within the time prescribed by the Law) to exercise a Power which the Law does not give; for in that respect he is a private man, Quia, as Grotius says, eatenus non habet imperium; and may be restrain'd as well as any other, because he is not set up to do what he lists, but what the Law appoints for the good of the People; and as he has no other Power than what the Law allows, so the same Law limits and directs the exercise of that which he has. This Right naturally belonging to nations, is no way impair'd by the name of Supreme given to their Magistrates; for it signifies no more, than that they do act soveraignly in the matters committed to their charge. Thus are the Parliaments of France called Cours Souveraines; for they judg of Life and Death, determine Controversies concerning Estates; and there is no appeal from their Decrees: but no man ever thought, that it was therefore lawful for them to do what they pleased; or that they might not be opposed, if they should attempt to do that which they ought not. And tho the Roman Dictators and Consuls were supreme Magistrates, they were subject to the People, and might be punished as well as others if they transgressed the Law. Thuanus carries the word so far, that when Barlotta, Giuistiniano, and others who were but Colonels, were sent as Commanders in chief of three or four thousand men upon an Enterprize, he always says, Summum Imperium ei delatum. Grotius explains this point, by distinguishing those who have the Summum Imperium summo modo, from those who have it modo non summo. I know not where to find an Example of this Soveraign Power, enjoy'd without restriction, under a better title than Occupation; which relates not to our purpose, who seek only that which is legal and just. Therefore, laying aside that point for the present, we may follow Grotius in examining the Right of those who are certainly limited: Ubi partem Imperii habet Rex, partem Senatus sive Populus; in which case he says, Regi in partem non suam involanti, vis justa opponi potest, in as much as they who have a part, cannot but have a right of defending that part. Quia data facultate, datur jus facultatem tuendi, without which it could be of no effect.
The particular limits of the Rights belonging to each can only be judged by the precise Letter, or general Intention of the Law. The Dukes of Venice have certainly a part in the Government, and could not be called Magistrate if they had not. They are said to be supreme; all Laws and publick Acts bear their Names. The Ambassador of that State speaking to the Pope Paul the 5th, denied that he acknowledged any other Superior than God. Buy they are so well known to be under the Power of the Law, that divers of them have bin put to death for transgressing it; and a marble Gallows is seen at the foot of the stairs in St. Mark's Palace, upon which some of them, and no others, have bin executed. But if they may be duly opposed, when they commit undue acts, no man of judgment will deny, that if one of them by an outrageous Violence should endeavour to overthrow the Law, he might by violence be suppressed and chastised.
Again, some Magistrates are entrusted with a power of providing Ships, Arms, Ammunition, and Victuals for War, raising and disciplining Soldiers, appointing Officers to command in Forts and Garisons, and making Leagues with Foreign Princes and States. But if one of these should imbezle, sell, or give to an Enemy those Ships, Arms, Ammunitions, or Provisions; betray the Forts; employ only or principally, such men as will serve him in those wicked Actions, and, contrary to the trust reposed in him, make such Leagues with Foreigners, as tend to the advancement of his personal Interests, and to the detriment of the Publick, he abrogates his own Magistracy; and the Right he had, perishes (as the Lawyers say) frustratione finis. He cannot be protected by the Law which he has overthrown, nor obtain impunity for his Crimes from the Authority that was conferred upon him, only that he might do good with it. He was singulis major on account of the excellence of his Office; but universis minor, from the nature and end of his institution. The surest way of extinguishing his Prerogative, was by turning it to the hurt of those who gave it. When matters are brought to this posture, the Author of the mischief, or the Nation must perish. A Flock cannot subsist under a Shepherd that seeks its ruin, nor a People under an unfaithful Magistrate. Honour and Riches are justly heaped upon the heads of those who rightly perform their duty, because the difficulty as well as the excellency of the work is great. It requires Courage, Experience, Industry, Fidelity, and Wisdom. The Good Shepherd, says our Saviour, lays down his life for his Sheep: The Hireling, who flies in time of danger, is represented under an ill character; but he that sets himself to destroy his Flock, is a Wolf. His Authority is incompatible with their subsistence; and whoever disapproves Tumults, Seditions, or War, by which he may be removed from it, if gentler means are ineffectual, subverts the Foundation of all Law, exalts the fury of one man to the destruction of a Nation, and giving an irresistible Power to the most abominable Iniquity, exposes all that are good to be destroy'd, and Virtue to be utterly extinguished.
Men who delight in cavils may ask, Who shall be the Judg of these occasions? and whether I intend to give to the People the decision of their own Cause? To which I answer, that when the Contest is between the Magistrate and the People, the party to which the determination is referred, must be the Judg of his own case; and the question is only, Whether the Magistrate should depend upon the Judgment of the People, or the People on that of the Magistrate; and which is most to be suspected of injustice: That is, whether the people of Rome should judg Tarquin, or Tarquin judg the people? He that knew all good men abhorred him for the murder of his Wife, Brother, Fatherinlaw, and the best of the Senate, would certainly strike off the heads of the most eminent remaining poppies; and having incurr'd the general hatred of the people by the wickedness of his Government, he feared revenge; and endeavouring to destroy those he feared (that is the City) he might easily have accomplish'd his work, if the judgment had been referred to him. If the people judg Tarquin, 'tis hard to imagine how they should be brought to give an unjust Sentence: They loved their former King, and hated him only for his Villanies: They did not fancy, but know his cruelty. When the best were slain, no man that any way resembled them could think himself secure. Brutus did not pretend to be a Fool, till by the murder of his Brother, he found how dangerous a thing it was to be thought wise. If the people, as our Author says, be always lewd, foolish, mad, wicked, and desirous to put the Power into the hands of such men as are most like to themselves, he and his Sons were such men as they sought, and he was sure to find favourable Judges: If virtuous and good, no injustice was to be feared from them, and he could have no other reason to decline their judgment, than what was suggested by his own wickedness. Caligula, Nero, Domitian, and the like had probably the same considerations: But no man of common sense ever thought that the Senate and People of Rome did not better deserve to judg, whether such Monsters should reign over the best part of mankind to their destruction, than they to determine whether their Crimes should be punished or not.
If I mention some of these known Cases, every man's experience will suggest others of the like nature; and whosoever condemns all Seditions, Tumults, and Wars raised against such princes, must say, that none are wicked, or seek the ruin of their people, which is absurd; for Caligula wish'd the People had but one Neck, that he might cut it off at a blow: Nero set the City on fire; and we have known such as have bin worse than either of them: They must either be suffer'd to continue in the free exercise of their rage, that is, to do all the mischief they design; or must be restrain'd by a legal, judicial, or extrajudicial way; and they who disallow the extrajudicial, do as little like the judicial. They will not hear of bringing a supreme Magistrate before a Tribunal, when it may be done. They will, says our Author, depose their kings. Why should they not be deposed, if they become Enemies to their people, and set up an interest in their own persons inconsistent with publick good, for the promoting of which they were erected? If they were created by the publick consent, for the publick good, shall they not be removed when they prove to be of publick damage? If they set up themselves, may they not be thrown down? Shall it be lawful for them to usurp a power over the liberty of others, and shall it not be lawful for an injur'd People to resume their own? If injustice exalt itself, must it be for ever established? Shall great persons be rendred sacred by rapine, perjury, and murder? Shall the crimes, for which privat men do justly suffer the most grievous punishments, exempt them from all, who commit them in the highest excess, with most power, and most to the prejudice of mankind? Shall the Laws that solely aim at the prevention of Crimes be made to patronize them, and become snares to the innocent, whom they ought to protect? Has every man given up into the common store his right of avenging the Injuries he may receive, that the publick Power which ought to protect or avenge him, should be turned to the destruction of himself, his Posterity, and the society into which they enter, without any possibility of redress? Shall the Ordinance of God be rendred of no effect; or the Powers he hath appointed to be set up for the distribution of Justice, be made subservient to the lusts of one or a few men, and by impunity encourage them to commit all manner of crimes? Is the corruption of man's Nature so little known, that such as have common sense should expect Justice from those, who fear no punishment if they do Injustice; or that the modesty, integrity, and innocence, which is seldom found in one man, tho never so cautiously chosen, should be constantly found in all those who by any means attain to Greatness, and continue for ever in their Successors; or that there can be any security under their Government, if they have them not? Surely if this were the condition of men living under Government, Forests would be more safe than Cities; and 'twere better for every man to stand in his own defence, than to enter into Societies. He that lives alone might encounter such as should assault him upon equal terms, and stand or fall according to the measure of his courage and strength; but no valour can defend him, if the malice of his Enemy be upheld by a publick Power. There must therefore be a right of proceeding judicially or extrajudicially against all persons who transgress the Laws; or else those Laws, and the Societies that should subsist by them, cannot stand; and the ends for which Governments are constituted, together with the Governments themselves, must be overthrown. Extrajudicial proceedings, by Sedition, Tumult, or War, must take place, when the persons concern'd are of such power, that they cannot be brought under the Judicial. They who deny this, deny all help against an usurping Tyrant, or the perfidiousness of a lawfully created Magistrate, who adds the crimes of Ingratitude and Treachery to Usurpation. These of all men are the most dangerous Enemies to supreme Magistrates: for as no man desires indemnity for such Crimes as are never committed, he that would exempt all from punishment, supposes they will be guilty of the worst; and by concluding, that the People will depose them if they have the power, acknowledg that they pursue an Interest annexed to their Persons, contrary to that of their People, which they would not bear if they could deliver themselves from it. This, shewing all those Governments to be tyrannical, lays such a burden upon those who administer them, as must necessarily weigh them down to destruction.
If it be said, that the word Sedition implies that which is evil; I answer, that it ought not then to be applied to those who seek nothing but that which is just; and tho the ways of delivering an oppressed People from the violence of a wicked Magistrate, who having armed a Crew of lewd Villains, and fatted them with the Blood and Confiscations of such as were most ready to oppose him, be extraordinary, the inward righteousness of the Act does fully justify the Authors. He that has virtue and power to save a People, can never want a right of doing it. Valerius Asiaticus had no hand in the death of Caligula; but when the furious Guards began tumultuously to enquire who had kill'd him, he appeased them with wishing he had bin the man. No wise man ever asked by what authority Thrasibulus, Harmodius, Aristogiton, Pelopidas, Epaminondas, Dion, Timoleon, Lucius Brutus, Publicola, Horatius, Valerius, Marcus Brutus, C. Cassius, and the like, delivered their Countries from Tyrants. Their Actions carried in themselves their own justification, and their Virtues will never be forgotten, whilst the names of Greece and Rome are remembered in the world.
If this be not enough to declare the Justice inherent in, and the Glory that ought to accompany these Works, the examples of Moses, Aaron, Othniel, Ehud, Barac, Gideon, Samuel, Jephtha, David, Jehu, Jehoiada, the Maccabees, and other holy men raised up by God for the deliverance of his People from their Oppressors, decide the Question. They are perpetually renowned for having led the People by extraordinary ways (which such as our Author express under the names of Sedition, Tumult, and War) to recover their Liberties, and avenge the injuries received from foreign or domestick Tyrants. The work of the Apostles was not in their time to set up or pull down any Civil State; but they so behaved themselves in relation to all the Powers of the Earth, that they gained the name of pestilent, seditious Fellows, Disturbers of the People; and left it as an inheritance to those, who in succeeding Ages, by following their steps, should deserve to be called their Successors; whereby they were exposed to the hatred of corrupt Magistrates, and brought under the necessity of perishing by them, or defending themselves against them: and he that denies them that right, dos at once condemn the most glorious Actions of the wisest, best, and holiest men that have bin in the world, together with the Laws of God and Man, upon which they were founded.
Nevertheless, there is a sort of Sedition, Tumult, and War, proceeding from Malice, which is always detestable, aiming only at the satisfaction of private Lust, without regard to the publick Good. This cannot happen in a Popular Government, unless it be amongst the Rabble; or when the Body of the People is so corrupted, that it cannot stand; but is most frequent in, and natural to absolute Monarchies.