The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata.
• To Sir Robert King, Bart.
• An Essay On Government. Part I.
• Sect. I.
• Sect. II.
• Sect. III.
• Sect. IV.
• Sect. V.
• Sect. VI.
• Sect. VII.
• Sect. VIII.
• Sect. IX.

SECT. V.

TO return to the main subject.--We have endeavoured to shew that the Rise of Governments was owing originally, partly to an Experience of the Confusion which naturally arose from Mens being Judges in their own Cause, and their own Avengers; partly to the Apprehension of the ill Consequence of such a Practice continuing.—2. That such Government was first lodged with the Fathers of Families, as to the particular Point of the judiciary Power, and that afterwards, when this Power required to be extended, each Man agreed to submit his Actions to the Cognizance of the universal Assembly of the People where he lived.--3. That finding the universal Assembly could not conveniently meet on every Occasion, they tacitly deputed an executive Magistrate to perform their Orders, and to whom by Degrees they imparted some other Parts of their Power; what these Parts were, and what they reserved to themselves, will be considered more properly in another Place; at present let us examine the Nature of the Convention Men enter into, in forming Governments, and how many there are.

Puffendorf first places a Contract whereby each Particular agrees with all the rest, to join in one Body to provide for their mutual Security.

After this a Form of Government is agreed on; and,

Lastly, An Engagement entered into between the supreme Power established by that Form, and the particular Members; the one to rule according to Law, the others to obey.

This Author makes the first Contract of much too restrained a Nature; which perceiving, he endeavours to amend the Breach, by supposing this second Convention; for which there would have been no Occasion, had he made the Contract of a sufficient Extent.—Besides, hereby, he makes the Federative Powers the ancientest Part of a regular Government, whereas in Truth and all Probability, the judiciary one is to be preferred. Let us therefore establish as the Basis of all Governments, that Contract, whereby each Particular agrees with all the rest, to submit his Actions to the Guide and Direction of the universal Assembly, provided they do so likewise, and that the Ordinances of such an Assembly, be not contrary to the Dictates of the natural Law: Which being the Case, we shall find little or no Occasion to suppose any second Convention: For from this Source alone may we deduce all the Obligations incumbent on the Members of any State.—And we need not search out either for an Ordinance to regulate the Form of Government, or for any second Convention to compell the supreme Power or Magistrate to protect the Particulars, or the Particulars to be faithful to the Magistrate: For by this original Convention, to submit to the Authority of the universal Assembly, that Assembly is vested with supreme Power, and if that Assembly thinks fit to chuse out one or more Particulars to execute their Orders, those Particulars, are obliged to accept the Office, and execute it according to the Limits prescribed to them, and the others being bound to obey them, so long as they keep within those Limits; they being to be regarded as the Representatives of the supreme Power.—And by laying down this Convention as the Foundation of Governments, we avoid the Inconvenience, (which it is imagined may arise from the supposing only one Contract:) That in such Case the executive Power, would lie under no Obligation to the Particulars with whom he hath entered into no Contract.—For here by the very Acceptance of the Charge he promises to execute it according to the Laws and Limits prescribed by his Constituents, whose Laws, when meerly a Particular, he had engaged to observe, and no Change of Condition can cancel that fundamental Obligation, which every one who pretends to the Title of a just or honest Man, must always fulfil, as it depends on a Principle of the natural Law, viz. the inviolably keeping ones promises. If therefore he exceeds the Limits which these Constituents have prescribed to him, his Actions are no longer to be regarded, as flowing from their Orders, or authorized by the Sanction of their Power, but proceeding from the arbitrary Will of a Particular, whom his Fellow-Subjects are under no Obligation to yield Obedience to, whether active or passive.

The second Argument by which the Notion of this latter Contract is supported, is the Administration of the Oath of Coronation to a Prince, and Allegiance to a Subject.—But these can only be regarded as express Renewals of the Obligations, which were before tacitly incumbent on the Parties; for scarce any Man will venture to assert, that the not taking the Coronation Oath, either prevents a Thing from being regarded as such, or enables him to break the Laws and act like a Tyrant; or that a Subject may not be found guilty of High Treason, though he never knew that there was an Oath of Allegiance, at least never took it:—For should this Doctrine prevail, that the Coronation is the Acceptance of the Trust in the former Case, the Time between an Inauguration and Coronation, would resemble the Persian Interregna. Where, after the Death of the King, the People live five Days in a State of Anarchy, that they might afterwards better relish the Sweets of a civil Government, and should the Oath of Allegiance be regarded as the sole Cement of the Convention between the Prince and the People, there is no Nonjuror, or even common Man who hath not taken the Oaths, but might live as licentiously as he should please, committing all manner of Enormities, and plotting the Destruction of the State with Impunity.

Puffendorf, to prove the absolute Necessity of a latter Convention, puts the Case of a Stranger who comes to settle in any State, and “He, says the Baron, is only bound to take the Oath of Allegiance (or in his Words) to obey the Prince; but enters into no Engagements with Particulars, to be faithful towards the Sovereign.”—If by the Sovereign he means here either the supreme Power or the executive Magistrate, it will make very little Alteration. For the Convention a Stranger enters into with the Prince as an executive Magistrate, is as much a Convention with the People, as if he had entered into it with them nominally.—For a King must be always regarded as the Representative of the People, for in his Hands is the executive Part, federative Power, lodged; and there would be just as much Reason to say, that Principals acquire no Right by the Conventions, which their Deputies enter into in their Name, as to imagine a Submission, and Engagement entered into with the Magistrate, implies not a Submission and Engagement to the supreme Power, i. e. the People. So if the Author by the Prince, means the supreme Power, and not the executive Magistrate, yet the former Convention is by such Oath entered into; for as the executive Magistrate is the Representative of the supreme Power, so is the latter in public Matters, the Representative of each Particular, who is equally burthened or eased and benefited by his Contracts. Why is it that the Stranger enters into such an Engagement? because those are the Terms on which only he can be received as a Member of the State, by the supreme Power, whose Will the Particulars have agreed to obey. Besides, what is this Engagement? Why to be faithful to the supreme Power: (i. e. Submit his Actions to the Cognizance thereof, which is the very Purport of the first Contract.) And consequently obey the executive Magistrate, so long as the latter guides his Actions by the Laws and Regulations, which the former have prescribed to him; for if he exceeds them, the tacit or perhaps express Obligation he lieth under to the supreme Power (the People) binds him not only not to obey, but even resist him in such flagitious Attempts.—If he contracts expressly with the supreme Power, he consequently enters into the original Contract, with all the particular Members.—For without the Authority of the supreme Power, or without the original Convention, neither executive Magistrate or supreme Power can exist.—Indeed if this Submission of a Foreigner be only in Fact as well as Form to the executive Magistrates; the Inconveniencies which would arise, are numberless; for hereby, he would be under no Obligations to Particulars, and might commit enormous Crimes against them with Impunity; sheltering himself under the pretended Orders of the acting Power. That such pretended Orders would be no Protection for him, (which they would be, if he was not under some Obligation to other than such Magistrate) needs no Proof; so that taking this Obligation to be entered into with the* Prince or with the acting Magistrate, yet we must necessarily admit it to contain an Obligation both to the Particulars, and supream Power. See Puff. Lib. 7. C. 2. §. 7.

But still this Author goes on further, (says he) “if we found the whole Obligation on one Convention between the particular Members, we shall be at a Loss to find any Foundation for the Duty we owe our Sovereign, the Convention will run thus: Transfer my Right to the supreme Power in your Favour, provided you will transfer yours to him in mine; and by this Means each Particular makes his Performance depend on the Performance of all the rest; so that if one disobeys him, the others are immediately freed from this Obedience.”--The conforming our Wills and Actions to the Will of the supreme Power, or Majority of the Members of the universal Assembly, is, as I before said, the Object of the first Convention, which is what I suppose the Author means, by yielding up a Right.—But this Convention is not entered into between one and one, or one and all singularly; but between one and all collectively.—So that though the Disobedience of one Man might free me, had the Contract been only with him; yet in this Case, cannot the Obligation be dissolved, till all, at least the Majority, resist and disobey, which then cannot be called Disobedience;—as the Acts of the Majority† , are Acts of the supreme Power, and the Minority, are ever obliged to submit themselves, by their own Contracts.—Now if the Majority chuse a third subordinate Power to execute their Orders, the Particulars ought to aid and assist such Power, in all the legal Steps he shall think necessary to the Performance of his Duty.

If on the other Hand, this latter Convention is considered as one entered into between the supream Power or the People collectively, and the executing Magistrate, it will be liable to many more Inconveniencies than the other, nor can it indeed subsist. For, First, the Magistrate cannot by this Contract, enter into a stronger Obligation to perform his Office faithfully, than that which the former one laid him under; nor is it probable, that the People would wantonly, and without Consideration, submit themselves to their Subject as a Superior, to whom before they were all equal as Particulars, superior as a collective Body, and quit an Independency, which the Generality before enjoyed in Reality, and the Particulars nominally; and which we are all by Nature so fond of.

Nor indeed, can they promise Fidelity to such Magistrate, though they be never so much inclined so to do; for their Trust is of a Nature, not to be generally delegated, and as the Submission to them, is made with an Intent that they shall protect Particulars, so cannot they put this Protection out of their Power; but this they do by constituting a superior, over whose Actions they can have no Cognizance.---And the yielding of Fealty, is incompatible with the Characteristick of a superior, consequently, this general Promise of Fealty to the civil Magistrate by the People collectively taken, is incompatible with their Trust, and that Protection, which they owe to their Constituents.—And it is remarkable, that the Parliament of England, never perform Fealty, or take Oaths collectively as a Body, though each Member doth it particularly.

This, I think, may be sufficient to prove, that one Convention or Agreement between the particular Members, is sufficient to form a regular State; and wherein all the Parts of Power may be found, and whereby we may lay a sure Foundation for all the Duties Men owe to each other, as Members of a civil Society: As for the Ordinances which first regulated the Form of distributing Justice, that can by no Means be regarded as a Convention, for indeed it was a long Time tacit, till the Encroachments of wicked and impious Magistrates made it necessary, to settle the express Limits of the executive Power.

[* ]By the Prince on all Occasions is meant the People, i. e. the supream Power.

[† ]This is only to be understood of the Majority of the Members, composing the Assembly of the People.