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SECT. IX. - Thomas Gordon, An Essay on Government 
An Essay on Government (London: J. Roberts, 1747).
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LET us now consider the different Arguments, whereby the above learned Author attempts to prove, that the supreme Power may be transferred from the People to some other Being.
“A Man, says he, as appears by the Hebrew and Roman Laws, may reduce himself into private Servitude — Why therefore may not a People who are their own Masters transfer their Right over, in such a Manner as to leave no Part of it in themselves.
First let us observe, that the Case of a People and a private Man are vastly different, the former being intrusted with Rights which cannot be surrendered; and that a Man may be possessed of such, no one need doubt, for in a municipal Law we have Instances of them, such was with the Romans the Quereta Inofficiosi, such among us many of the royal Prerogatives, which tho’ his Majesty is possessed of, he cannot grant away* .
What is done in a civil State is not always allowable in the natural one, as many Institutions unknown in the latter prevail in the former, but we are always to consider Governments as in a State of Nature, the very § Servi autem Inst. de Jure Pers. which Grotius cites to prove the Legality of such a Contract, positively mentions but two Ways of acquiring Slaves, the one by the civil Law, the other by the Law of Nations; the former is the only one to which this Surrender can be compared, the latter depending intirely on Force and Right of Conquest, of which we shall speak hereafter.
So that this Kind of Surrender cannot receive any Sanction from the Authority of Justinian, nor will it receive any from the Authority of Moses, as we are to suppose the People as a Body existing in the State of Nature; let us, however, consider only the Nature of the Servitude allowed either by the Roman or Hebrew Law, and that of which the Writers on the natural Rights of Mankind speak, and the Fallacy of this Argument will soon appear.
It is very true that the Roman Law gave to the Masters a more exorbitant Power over their Slaves, than any other, but if one Part of that Law is taken to establish and maintain this Argument, we may make like Use of another Part to overturn it; if by the old Roman Law a Master might kill a Slave with Impunity, by the later Constitutions of Antoninus Pius, Constantine, and Justinian, this Right was abolished, and an Action given to a Slave against his Master for immoderate Chastisement of him* ; so that even admitting this Institution of the Roman Law as a Precedent for the Surrender of a People’s Right, it appears that they must even by that, reserve some of their natural Rights.
The Case of Hebrew Slaves is widely different from that of the Roman; the voluntary Slavery, i. e. by Contract, was only for six Years, nor could the Master kill or maim his Slave, for in one Case he was regarded as a Homicide, in the other the Slave was free† . But all Kind of Slavery by Contract between Hebrew and Hebrew, seems to be expresly forbid by the Law of Levit. xxv. 39, 40. And if thy Brother that dwelleth by thee be waxen poor, thou shalt not compell him to serve as a bond Slave but a hired Servant and a Sojourner, he shall be with thee till the Year of Jubilee—And 42. For they are my Servants which I have brought forth out of the Land of Egypt, they shall not be sold as Bond-men. And 44. Both thy Bond-men and thy Bond-maids which thou shalt have, shalt be of the Heathen round about you. If therefore the Hebrew Servitude be considered as a Precedent for absolute Monarchy, we shall find it still weaker than the former, for hereby Slavery between Equals is forbidden, and the Permission with Regard to the Heathens can only be considered as a Consequence of the revealed Law, for in the State of Nature all Men are equally Orthodox, equally Heretick, equally Jews and equally Pagans; nay, even these could not be used with Rigour by their Masters, as the above Passage of Exodus shews.
Let us now consider what is the Surrender allowed by the natural Law, and what are the Bounds thereof; and that on this Occasion the Argument of the Author may be taken in its full Extent—Let us examine what he himself says in another Part of this Work, concerning this Servitude, (L. ii. c. 5. § 27.) “Perfect Servitude, says he, is that in which a Man is obliged to work perpetually for another, in Consideration of Food and Raiment* to be given him”—Without going any further, we find that the Slave here reserves a Right of exacting Food and Raiment, and it is upon the Certitude of this Provision that he argues to prove the Equity of such a Contract—That being the Case, supposing the Master denies these Necessaries to a Slave, the other is certainly justified in refusing any longer to assist him with his Work and Labour, for in a State of Nature there can be no Application to a Superior to compell the Performance of this Contract; consequently a Man cannot sell himself to another without reserving some Part of his Right. But if the Master is obliged to give the Servant Necessaries, where shall we find out the Right or even Impunity which he hath of putting him to Death: For in the 28th § of this Chapter Grotius admits in the Master the latter but not the former, and at the same time bountifully makes a Compliment thereof to absolute Monarchs—By Impunity he must mean either an Obligation of the Slave to suffer tamely, and without Resistance or offering any Kind of Injury to his Master, or nothing at all; for in a State of Nature of which he is now speaking, Punishments are unknown, and every one hath an equal Right to Impunity from a third Person of every Action he hath committed, and surely he could never mean that the Almighty would not punish a Master for such an Act. But if by Impunity this passive Obedience of the Slave is meant, we may venture to say, that as great a Man at he was, he was either asleep when he wrote this Paragraph, or suffered himself to be misled by a Desire of flattering his Pattern Lewis XIII.—For no Man can receive an Injury unless he before is possessed of a Right; now he hath allowed in express Terms in this Paragraph that a Master may injure his Slave, consequently the latter must have a Right; if he hath a Right over any Object, he hath an equal Right to protect it against any Aggressor, consequently may resist his Master if he attacks him in any of those Rights. Let this Matter therefore be taken on the footing of natural Servitude, we find it impossible for a Person to give himself up to another, without reserving some of the essential Rights of Nature; and certain tacit Limitations are established; if therefore a Particular cannot do this, consequently a People if resembled to a Particular in this Case, cannot.
Thus much has been said, on a Supposition that such Contract of perpetual Servitude is permitted by the Law of Nature, tho’ much may be said to shew it to be unknown and prohibited, at least the Manner of some and most modern Nations seem to condemn this Practice—Grotius himself in a Note tells us, not only, that the ancient Egyptians who by all Accounts were the first civilized People, prohibited it; but quotes from Plutarch a Law of Solon to the same Effect: It would be pedantry to prove the Disuse of this voluntary Slavery among Christians. I shall only quote one Passage from a celebrated Author, to shew the Horror we have of this State—“Inter Christianos ferè abolita in universum Servitute, usque adeo ut si Servus Regionum nostrarum & plurium Gentium aliarum Fines intraverit, etiam invito Domino possit confestim ad Libertatem proclamare—Nec cuiquam Mortalium nunc liceat sese venundare, aut alia Ratione Servitutis jure semet alteri addicere* .”
If therefore by all the Laws we meet with, no Man can totally transfer a Right over to a third, how much less can he transfer those of his Posterity; certainly he cannot give over them a Power, which he hath not over himself; nay, it is the Opinion of Puffendorf that the Children of contract Slaves cannot by the Law of Nature be made so, without an express Limitation in the Contract; but the Nutriture which they receive must be regarded as Part of that which the Master owed to the Parents—If therefore it is against the Law of Nature to make them Slaves by express Contract, from what Part then are we to trace the Branch of paternal Power, which authorizes the Sale of them? Puffendorf himself reckons it not as one of the Parts of that Power; the Old Roman Law it is true permitted it, the New restraining it to Cases of extream Necessity, and* Want of the Parents, and then only to Children first born—But as to Children unborn, no one can think even that Law to have allowed such Sale, as the Parents could not possibly foresee whether at the Time of their Birth they might not be able to maintain them out of their Peculia. But the present Laws of almost all Nations, deprive them even of that Right left them by the Code, and therein more strictly follow the Law of Nature† .
If therefore this intire Surrender of Rights by a People, be compared to the Reduction of a Particular into private Servitude, we see that it cannot be absolute, it cannot bind their Posterity: If it is not absolute, the Moment the Grantee begins to transgress the Limits which are tacitly set to the Grant, they have all a Right to resist and call him to Account: But to whom is this Account to be given? Why, no one, as the Grantee acknowledges no superior; consequently with Regard to him the People are reduced into a State of Nature, their Government is dissolved and perpetual Confusion and Sedition introduced.
Thus if there be no Power superior to the executive Magistrate, it may often happen that a Particular falsly thinking himself injured, may take up Arms and form a Party to redress his imagined Grievance. Is it not much better therefore to have some Power superior to the executive Magistrate, to whom the injured may have Recourse for Redress, and by leaving this Supremacy in the Hands of the People as it ought always to be, prevent the Magistrate from daring to injure Particulars, or punish the latter for any seditious Attempts whatsoever.
But indeed we have wasted too much Time in confuting this Objection, as there can be no Instance given of a People ever voluntarily surrendering themselves in this Manner.
Secondly, says Grotius, “as there are different Ways of living, one better than another, and each Man may chuse the Way of Life which is most agreeable to him; so may a People chuse what Form of Government they like best; neither are we to judge what is right on the Goodness of the Form (for different Opinions will then arise,) but on the Will of the People.”
The Author here places the supreme Power in the Hands of the People, that he may with more Facility deprive them of it. We admit that it is in their Breast to chuse what Form of Government they please; but by Forms, are only to be understood, Forms of administring it: But the Government itself must always stand upon the same Principles, and is ever on the same; as, to pursue the Author’s Simily, the Life of natural Beings is always alike, tho’ the Means of preserving it be different—With this Explanation the Author’s Hypothesis may be allowed, and yet thereby it can never prove that the supreme Power is not in the People—For those who administer the Government are always liable to the Orders of their Constituents, and this Kind of Monarchy or Appointment, of a sole executive Magistrate, depends not on a Transfer of the intire Right of the People, but a Delegation of some particular Branches of those Rights.
For as to the Choice which the People must make of submitting servily to one or more Persons, it is not what can properly be called the Choice of a Form of Government, but the immediate Introduction of Tyranny, and a paving a Way to Anarchy and Confusion, for the two latter generally are the Consequences of the former; it being very remarkable that those People who live under despotic Rule, when once they shake off the Fear thereof, assume a Temper of Mind tyrannical in proportion to their former Servility, and set no Bounds to their Licentiousness, but as before they were almost on a footing with Beasts, they then assume to themselves a Power almost superior to that of the Divinity.
Indeed if the Choice of Government is once allowed by the People, I cannot see how they can be deprived of a Power of changing their Mind, for no one ever freely chuses to set another over him—And if what, indeed, appears a Contradiction in Terms be hereby meant, that in Reality as to point of Dignity the People are superior, tho’ inferior in Point of Power; yet that will not hold Good in this Case, for the Constituents taken together must always be regarded as superior to the Constituted, to whom the latter are bound to render an Account of their Actions, if they are any Way contrary to the Instruction they received.
But of what Use can so ridiculous a Choice or voluntary Surrender of Right be to a People, or in what Manner can it promote a Scheme or Design of instituting civil Government?—For can there be more Safety in having Resort for Protection to one single Man than to a collective Body? Or can more Impartiality to Particulars be expected from the Decision of one than of many?—Besides is it not much more probable, that where the Supremacy is in the People, and every one hath a Share in the Government, the Taxes and Burthens thereof will be easier, as every one will be more careful in assembling, as he knows he must pay a Share; than under an arbitrary Tyrant, who being free from all those Charges himself, may trifle away the Estates and Lives of his Subjects, without any Advantage accruing to them, but merely to satisfy his own inordinate Avarice or Ambition.
“But there are many Cases, says the Author, wherein a People may intirely resign and surrender to another the Rights of Empire. 1. Because being in Danger of their Lives they have no other Means of Defence. 2. When pressed with Want they cannot obtain other Conditions.”
The Author here mentions the Surrender which the Campani made of themselves to the Romans, when they could obtain the Assistance of the latter on no other Terms—But by this nothing more can be meant, than the submitting themselves to the Romans as an executive Power, or rather the incorporating themselves into that State; or more probably is meant a perpetual Engagement with them, never on any pretence to assist their Enemies, Liv. vii. 31.
That the last was the Case, appears most probable from the Manner in which the Roman Consuls addressed the Ambassadors of that people, Liv. xxiii. 4. after the Battle of Cannæ: Calling them not only Allies, but reproaching to them the Communication which they had obtained of the Quiritial Rights.
The first Case here mentioned is that of Conquest, in this place therefore we must consider how far the Right of Conquest may extend; but let it only be remarked, that supposing there be any thing legal in that Title, which obliges the Conquered to submit absolutely to the Conqueror; they are no longer to be considered as a People, nor is this Submission, an Institution of a new Form of Government, but a Dissolution of the Old; for as an Institution, it never can take Place, having that indelible Blot in it, of a Convention, entered into merely through Compulsion or the Apprehensions of an impending Danger. Whether a Conqueror hath a Right to extend his Power so far over a conquered State, as to dissolve the Government thereof, will be the sole Question.
Two Nations at War, resemble two Particulars in a State of Nature, attacking each other, and defending themselves by Violence; if we consider therefore the Limits the natural Law hath set to a violent Defence in the State of Nature, we shall at the same Time, see what Limits a Conqueror should observe in his Treatment of the Conquered.
All Authors agree, that in a State of Nature, a Man is allowed to defend himself, whenever he is attacked, and continue that Defence till he is out of Danger, hath obtained Reparation of Damages, and sufficient Security from the Offender, for his future good Behaviour; and if he carries his Violence beyond these Limits, he becomes the Aggressor: As for Punishment of Crimes, no one hath a Right of inflicting, but a Superior, which is a Word unknown as to temporal Affairs, in a State of Nature.
Now if two Nations at War, resemble two Particulars at Variance in a State of Nature, the Rules to be observed must be the same; and it is hardly to be imagined, that this Dissolution of either, is necessary for the other’s Security; for when a People are reduced to so low an Ebb as that, their Conquerors have it in their Power to compel them to forego their natural Liberty; they must be a considerable time in recruiting their Strength, before they will be able to renew their Attack, and that very Impotency is of Security enough to a Conqueror.—Will any one pretend to say, that a Man in a natural State, may after disarming his Enemy, and having reduced him to a Condition to beg his Life, be entitled to kill him? no certainly; why therefore, should a Conqueror enjoy a greater Privilege? but to give this Objection its full Force, let us see what Grotius* in another Place says, of this Kind of Acquisition of Empire.
The principal Argument he makes use of, is, that as one Man may be reduced into Slavery, when conquered in War, so may a whole State.—The Reason which he himself gives for the introducing Servitude into the World, fully answers all the Arguments of this Sort; for (says he, C. 7. B. 3. §. 5.) the Obligation of the Slave, is founded on this Principle, that they are bound to serve their Captors, because when they had it in their Power, they did not destroy them, as they might have done.
But as Dissolution of Governments, is tantamount to a natural Death of a Man, by what Right can they be acquired by Conquest, as by this very Acquisition, the very Object on the Consideration of which a Man is obliged to submit to Servitude, is taken away.
Another Reason of this Practice indeed is given at present, which can be the only one assigned; that the making Men slave, is only made use of by Way of Reprisals; but as States, though similar to natural Beings, with Respect to each other, are not so with Regard to the particular Members; no Conqueror can be justified in usurping the Government of a conquered State, because that his Subjects had before been treated as Slaves by them; though as to the Particulars, that Right is allowable: Conquest, therefore can be only properly admitted to take Place in Cases, where the Conquered had before made use of that Title to enslave the now Victor, a Case which it is hard to imagine will ever exist.
As for the Case our Author puts of a People fallen into great Necessity, and selling themselves to some one or other: It is very hard to imagine a People reduced to that low Ebb; but if that be ever so, the Government must necessarily first be dissolved, and such a Contract must be regarded as a Sale of the different Particulars, under the Restriction mentioned above.
After these two, our Author puts a Case of a Father of a Family, who, possessed of large Demesnes, will not receive any into them, unless on the Terms of being vested with supreme Power.—But this Case is not the Constitution of a Government, but the Acquisition of Tyrants, neither are they to be called a People, neither can we easily suppose an Institution of this Kind; for at the Time of entering into civil Societies, Men were possessed of little more than what yielded them necessary Provisions, to maintain themselves, and their Families; neither, supposing any to be possessed of such large Lands, can we imagine, that many Men would be so weak, as to purchase a Share of them on those Conditions, at a Time, when so large a Part of the Earth was uncultivated, and unoccupied, which they might take Possession of without Molestation.
At present, it is impossible for such Case to exist, since no Man possesses any Spot of Ground Pleno jure, but some State or other claims eminent Property over all the Lands in the habitable World.
The next Case our Author puts is of a Master, who having many Slaves, will only manumitt them on this Condition. What a way of arguing is this.—For either the Master must be himself subject to some supreme Power, or be independant, and in a State of Nature: If he be subject to a supreme Power, I would fain know, what Power there is, who would permit such Conditions to be annexed to Manumission? If our Author speaks of one in a natural State, what Right hath a Man to have any Slaves at all; or admitting that he hath, what would such Slaves be the better by a Manumission, when loaded with these Conditions? And what would the Terms of the Grant be? Why this, I free you from Slavery, provided you let me preserve the same Power over you, which I have at present. Doth not every one know, that by all Manner of Laws, Conditions so clearly repugnant to the Body of the Grant are void; and in either of these Cases, where are we to find the original Convention of the Particulars to each other, without which, no Society can subsist?
Being hard pressed for Arguments, whereby to deprive the People of their Supremacy, he tells us that some Men are by Nature Slaves, i. e. fit for Slavery; so some People are fitter to be governed than govern. Though this is a Notion which can have but very little Weight, let it be for once granted, yet it doth not follow from thence that those People are to be made Slaves, as they will be, if they are to have one single Man set over them accountable to no one for his Actions.
In some Case, again he says, it may be expedient for a People to submit itself to the Government of one Man, as the Case of the Roman Commonwealth under Augustus.
No one pretends to say, that the supreme Power is lodged in such a Manner in the Hands of the People that they are always to execute it, (though the oftner they do the better) but all that is contended for, is that they should have such a Supremacy, as may be a Check on the executive Magistrate, and prevent him from doing any thing which exceeds the Limits of the Commission they have intrusted him with, and at the same Time, call him to account, and punish him for his Misdeeds.
Where the Necessity was for the Roman Commonwealth to be reduced under despotick Government at that time, the Author only tells us, by inserting in his Notes a Quotation from Seneca, in which he imputes this Necessity chiefly to the depraved Manners of his Countrymen, and their Corruption; Causes which have been assigned, with Justice, for the Ruin of many States; but few doubt but that those Causes might have been removed by other Means, which might receive the Name of Remedies; but what Name shall we give to that Medicine, which instead of healing particular Wounds, destroys the whole Body?—Poison it must be called, and the Administer of it a Murderer.—But Rome was not at that low Ebb of Slavery, under that Emperor, though he had waded to the Throne through the Blood of her best Citizens, as she afterwards was; the People were then in Possession not only of the Forms, but of some of the Essentials of Supremacy, for he scarce ever attempted any considerable Action, or Alteration of the Laws, without first asking their Consent, and in some Cases they had Resolution enough to deny it him; to mention only the Instance of the Julian Pappian Pappæan Law, which he was forced to propose a second Time, before he could get it passed* .
It is indeed declaring one self an Advocate for Tyranny, to instance the State of the Roman Commonwealth, even under Augustus, as a Precedent for absolute Monarchies, for he had not the least Shadow of a Title to the Post he usurped, not a Surrender of the People, not a free Choice of such a Government; for many had been fighting against the Usurpation of his Uncle, among whom were all those, who had any Property to lose, not even the specious Plea of Conquest, or Purchase of Victuals, Lands or Freedom; so that all his Power was direct Tyranny and Usurpation, and every private Roman Citizen had a Right to destroy him, and punish him for his Iniquity; and that many thought so, though they failed in the glorious Execution of their Design, appears from the whole History of his Reign.
The next Argument Grotius makes use of, is, “that as private Dominion is acquired by Conquest, so may the Publick, which is a Right of Governing independently.” This means no more than a Claim of Conquest, which we have answered before: I shall only remark here a very common Distinction, in the Roman Law, of Objects negotiable, and not negotiable; now free Persons were of the latter Species, and to these Governments are compared, consequently the latter are not to be acquired as Effects of the other Species.
After this, we must descend to consider what Consequence the Proof that formerly many People were subservient to another free People will be of in deciding this Point; all that seems to me to appear from thence is this, that the People of those had constituted the latter to be their executive Magistrate; and though by that Means they were bound to follow all those Orders of the latter, which were consonant to that Law, and agreeable to the Ends of Government, yet they were not deprived of their own Supremacy, which gave them a Right to resist any Acts of Tyranny and Oppression of the superior People, (vid. Liv. 8. 21.) though perhaps an irresistable external Power put it out of their Power to make use of it.
As to the Phrases of Scripture, and of profane Writers, who says Kings are set over People; that implies nothing more, that they are the Principal of the Particulars, not unaccountable for their Actions to the collective Body: A General is very truly said to be set over an Army, but for that Reason he is not exempted from being called to account before a Court Martial of inferior Officers.
These are the principal Arguments Grotius hath made use in order to flatter the French King and betray the Supremacy of the People, and these are the Answers which will occur almost to any one who thinks for himself.
A SHORT REVIEW, of a Pamphle: lately published entitled, Considerations on the Law of Forfeitures.
[* ]A special [Editor: illegible word] committed to the King, and not by him to [Editor: illegible word] [Editor: illegible word] to any other.
[* ]L. Cor. de Sic.
[† ]Exod. xxi. V. 26, 27.
[* ]Aliis quæ Vita Necessitat exigit.
[* ]Voet. ad Pandectas de Statu Hominum. p. 50.
[* ]L [Editor: illegible word] C. de Pat qui Fil [Editor: illegible word].
[† ][Editor: illegible word] Cod dict [Editor: illegible word] [Editor: illegible word].
[* ]Grot. Jure Bell. &c. Lib. iii. c. 8. § 1.
[* ][Editor: illegible word] in Aug Hein ad L. J P. P [Editor: illegible word] 2