« AnteriorContinuar »
the examples illustrating them, which are too extensive however to be here introduced. This chapter contains above 60 pages, and deferves the attention, not only of those who would understand the meaning of a law, but even of those who would enter into the sense and fpirit of any other compofition.
Let us therefore proceed to the eighth chapter, the title of which is, Of Civil Subjection, and Civil Liberty. The notion of fubjection consists in being obliged to act at the difcretion, or according to the judgment and will of others. When therefore the matter of an obligation, founded in compact, is left in any respect to be determined by the discretion and choice of those to whom we become thus obliged ; the compact, in so far as it thus gives them a right to judge for us, and prescribe to us, gives them also an authority over us, and places us in a state of subjection to this authority. And as to civil liberty, the Doctor.places it in this light: The individuals, says he, in a free state, are not free from civil fubjection, any more than they are in any other ftate. But in a free ftate, the collective body of the whole fociety is free, or not under any subjection; because the collective body in such a state, is not bound by any act of legiflation, in which it does not immediately and directly concur, either by itself, or by its reprefentatives. This general body, which is usually called the people, does not indeed reserve to itself a full power of legislation, but it reserves fuch an independent power, as prevents its fubjection : for tho' it has not a power of making Jaws by its own judgment and will, yet without its own jadga ment and will, signified by its reprefentatives, 'no laws will be binding upon it. Having defined and ascertained the notion's of fubjection and liberty, he thus candidly introduces, and dexterously obviates, the following objection; an objection arising feemingly out of his own principles. You may therefore ask, perhaps, continues he, of what importance it is to individuals, what form of government they live under, if an abfolute monarchy, or an absolute Aristocracy, whilst they take away the civil liberty of the whole collective body, leave the several members the fame right to their civil liberty that they would have had under a popular conftitution? The anfwer to this question is obvious: There is a wide difference between the right of individuals to their civil liberty, and their enjoyment of that liberty in fact. Under every form of government civil liberty is the fame in right, but there is not the fame security under every form, that it will be fo in fact. For tho' the members of a civil society are not flaves in right to
an abfólute Monarch; yet is he in such a fituation, as gives "him opportunity, and arms him with strength, to treat thern in fact, as if they were his flaves. It is possible that a sovereign Prince, who has absolute power, may make the general good of his people the measure of his conduct. But it is likewise possible that he may hold the opposite conduct; and instead of regarding their intereft, compel them, as if they were his flaves, to advance a separate interest of his own.
The several members of the society, in such a situation, do not enjoy their civil Liberty; for tho the nature of the conftitútion does not take it from them of right, yet the injustice of him who adminifters the constitution, takes it from them in fact. Since, therefore, in the nature of the thing there is a possibility, and since from the general temper of mankind there is some likelihood, that where all is left to the will of one man, the trust reposed in him will be abufed, it is necelsary, in order to secure the civil Liberty of the several Members in fact, to preserve and maintain the civil Liberty of the collective body, by giving it such weight and influence in the legislative, that nothing can be done there without its consent,
or without the consent of its representatives: For the civil Liberty of the whole collective body, is the support and se'curity of the civil Liberty of the several parts or members; and the loss of the former in right; will commonly be attended with the loss of the other in fact.
Having explained, confirmed, and established the doctriite of Liberty, he adorns Liberty itself, like another Pallas, with a sword and shield; or, to speak less figuratively, subjoins the doctrine of Refiftance to that of Liberty. The power of civil Governors, as the Doctor well observes, is neither neces
farily connected with their persons, nor infinite in extent. It ceases by abdication, is over-ruled by the laws of God and Nature, and cannot reach beyond the limits, which either the civil conftitution, or the ends of focial union, have prescribed to it. This power, therefore, of civil Governors fails of right, that is, they become deprived of all just authority, when they abdicate their power; when they command what is contrary to the laws of God and Nature; when they ufurp any branch of power, which the constitution of their country never gave; or when they exercise a power which is inconsistent with the ends of social union, and which consequently no civil conftitution whatsoever could give. When their power thus fails, and when they become thus deprived of authority, the subjection of the people ceases. The force which Governors then employ, whether to compel obedience,
or to punish disobedience, is unjust force; and altho' the people may, perhaps, submit to it, if they please ; yet, because the force is unjust, the law of Nature does not oblige them to it, but allows them to have recourse to the necessary means of relieving themselves from it, and of securing themselves against it, to the means of resistance, by opposing force to force. Yet this right or liberty of resistance, is not properly, according to the Doctor's notion of it, a civil power, but a natural right. It is not an authority given to the people by the civil union, but it is what remained of natural Liberty, exempted from the obligations of that union. The supreme power of Governors is a civil power; the right which the people have to resist tyrannical oppression is a natural right. The supreme power of Governors arose from civil union, and was vested in them by the law or compact which formed the constitution : the right which the people have to resist tyrannical oppression arose from Nature, and subsists during civil union, by means of those limits fixed to all civil power, by the ends and purposes of such union. Hence, adds the Doctor, we may understand what it is that puts the difference between rebellion and such resistance as is lawful. It is rebellion to resist the supreme Governors, whilst they keep within the natural limitations of supreme power, and only command or enforce what is necessary, or conducive to the general welfare and security: whereas the refiftance which is lawful, is a refistance to these Governors, when they abuse the natural strength which the supreme power has put into their hands, to the unsocial purposes of tyranny and oppression.
The Doctor concludes this chapter, wherein he hath so clearly fixed the boundaries of power and authority on the one side, and of liberty and subjection on the other, with vindicating the doctrine of refiftance from certain pernicious confequences endeavoured to be deduced from it, and drawn up in array against it, as arguments ab absurdo. Our summary of what the Doctor hath said in reply, will sufficiently intimate, to the intelligent reader, what those reasonings are, tho' they do not here appear in form.
When the Governors of a State, who have the keeping of the public understanding, and act with the public force, injure the members of it by tyranny and lawless oppreffion; the focial means of redress fail, and no other means are left, besides that of resistance. It is true, indeed, that in a society, where the people have recourse to this, there is no social peace and order. But it is equally true, that the social peace and order are not broken in upon by such resistance, but were already 8
broken in upon by tyranny and oppression. Some fort of peace and subordination may, indeed, fubfift in a civil society, notwithstanding the Governors of it violate all the social rights of the people; provided the people will fit ftill, and quietly submit to injuries. But this is not focial peace and order; for these are disturbed by tyranny and oppression. The right of resistance, therefore, as it does not take place till social peace and order' are thus disturbed, cannot be the cause which disturbs them: it finds them disturbed already; and its proper end is, to restore them for the present, and to secure them for the future. this
That a right may be abused, does not prove, that no such right exists. If we conclude, on the one hand, that the people have no right of resistance, because this right is capable of being abused; we might for the same reason conclude, on the other hand, that fupreme Governors have no authority. The right of refiftance will, indeed, render the general notion of rebellion less extensive in its application to particular facts. All use of force against persons, invested with supreme power, would come under the notion of rebellion, had the people no right of this fort; whereas, if they have such a right, the use of force to repel tyrannical and unsocial oppresa fion, when it cannot be removed by any other means, must have some other name given it. So that however true it may be, that, in confequence of this right, supreme Governors will be liable to some external checks, arising out of the law of Nature, to which otherwise they would not be liable; yet it cannot be properly faid to expofe them to rebellion. The fecurity of civil Governors depends, partly upon the consciences of their subjects, and partly upon the natural strength and influence which they have in their hands. The ties of conscience procure them obedience and submission upon a principle of duty; and the strength and influence, which go along with their office, procure the like obedience and fubmiffion from such as would disregard their duty, were it not enforced by compulfion. They will have this latter security to guard their perfons, and support their authority, whether the people have a right of resistance or not. And, in fact, there is more danger of Governors making an undue use of their strength and influence, to support themselves when they do wrong, than of their wanting a fufficient security against any attempts. of faction, when they do right: and it is more likely, that they fhould have it in their power to compel the people to submit to unfocial'oppreffion, than that they should be in danger of being hurt by rebellion, under a pretence of a right to refifta
ance. But even this very, ftrength and influence, great and extensive as it is, is not their only security; for, so long as they pay a due regard to the common good, the principle of conscience, than which there is not a stronger and more univerfal, will procure them social obedience and fubmiflion, and fupport their authority.
The Law of Nations is what next falls under the Doctor's notice; and of this he treats in the ninth chapter. However, as he himself looks upon the Law of Nations to be much the fame with the Law of Nature, as it takes place among independent individuals, and which makes the subject of his whole fint volume; and as he introduces the Law of Nations into this second volume, among the positive laws of human insti. tution, rather in complaisance to Grotius, and as his Commenrator, than that he thought this the proper place for it; we should have entirely palled over this chapter, had it not been for a particular article in it, which affords us the pleafure of taking part with the Doctor in opposition to Grotius,
The question between them is this ; Whether it would be <lawful for a State, in order to preserve itself from being des
ftroyed, to deliver one of its members, who had committed
no crime, into the hands of a powerful enemy? Grotius affirms this to be lawful, on the part of the State ; our Aur thor denies it, but with caution and reserve, and after having made many conceflions, He reasons thus : Tho' no pers fon has a right to withdraw himself from the State or Gom vernment to which he belongs, unless the public either exir pressly, or tacitly, consents to it; yet, whenever the State is in fuch circumstances as not to be able to afford protection, which is the end of the focial union, the obligation of the fo+ cial.compact will thus be superseded, and he will be at liberty to provide for himself by quitting the society. A like necessity on the part of the society, as when it cannot defend itself, fhould it undertake the defence of some particular person, belonging to it, will justify the withdrawing of protection : and this conduct docs no damage to the individual : for, if the for eiety could not défend itself, without de!erting him, it certains ly. could not defend him, were it ever so willing. But the nor tion of deserting a subject, differs widely. from that of deliver, ing him into the enemy's hands. A right only to defert him, leaves him at liberty to provide for his own fafety; whereas a right to deliver him up, implies an obligation on his part to fubmit to be delivered, and a right in the fociety to seize him þy force, and prevent his escape. The topics, continues the Doctor, commonly made use of, in this question, are, on one