Front Page Titles (by Subject) OBJECTION III. - A Treatise Concerning Civil Government in Three Parts
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OBJECTION III. - Josiah Tucker, A Treatise Concerning Civil Government in Three Parts 
A Treatise Concerning Civil Government in Three Parts (London: T. Cadell, 1781).
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“Whatever Difficulties in Theory may be supposed to attend the Idea of a Contract actually [not virtually] subsisting between Prince and People; the Fact itself is so decisive in Favour of an actual Contract, that the bare mentioning of it, with its concomitant Circumstances, is enough to silence any Plea, or Pretence to the contrary. For Example,—even among the most unenlightened Nations, whether ancient, or modern, it is remarkable, that the Powers and Prerogatives of their Kings and Leaders were very limited, and circumscribed.—Sometimes extending little farther, than was just necessary for the carrying on a War, or conducting an Expedition with Secrecy and Success;—at other Times consisting of but little more than a bare Sufficiency to act the Part of powerful Judges and Mediators in civil Disputes;—and at all Times, so balanced by counteracting Powers, as never to be, in a legal Sense, unlimited, or despotic. The Case of the antient Gauls, as described by Cæsar, and of the Germans by Tacitus, strongly confirms what is here advanced. To which we may add that amazing Uniformity of Government so visible in the Feudal System of the barbarous Nations, which overspread all Europe, and exhibited every where a limited Constitution. If we wanted historical Examples of this Sort, our own Country might furnish enough. For surely the Mode of obtaining the famous Magna Charta here in England, and the History of the Wars between the Houses of Stuart and Douglass in Scotland, afford such flagrant Instances of a limited Monarchy, and a conventional Constitution (if I may use the Term) that more could not possibly be desured, or expected.”
These Objectors are very unfortunate in appealing to the Example, or Practice of unenlightened Nations for Proofs of actual [not virtual] Contracts subsisting between Prince and People, if by actual they suppose written Contracts. For it is hard to conceive, how written Contracts could have been in Use among Barbarians, before they had learnt to read and write. But if by actual the Objectors mean verbal Contracts, the Difficulty is indeed removed in one Respect, and as much encreased in another. For it exceeds even the Powers of Credulity itself to believe, That the Prince of any Country entered into a verbal, and personal Contract with every one of his Subjects,—or even with the thousandth Part of them, if his Territories were at all populous and extended. And yet there certainly is such a Thing as an implied Covenant [I say implied, not expressed] between every Prince, and every Subject throughout his Dominions, be the People many, or few in Number, and his Empire great or small. For every Trust implies a Covenant, or Condition of some Kind, or other, according to the Nature of the Case; and therefore these Trusts may with great Propriety be termed Quasi Contracts. So much as to this Part of the Objection.—Need any Thing more be added?
The other Part of the Objection is, “That all the Kingdoms in Europe, erected on the Basis of the Feudal System, were limited Monarchies.” Granted: For the Fact was really so.—But what Inference can be deduced from this Circumstance?—Not surely, that these Limitations arose either from written Contracts, or from verbal Covenants, and personal Conferences made with each Individual, or even with the Majority of the Individuals of any of these States; [because these Things have been proved already to be impossible:]—But they arose from the aristocratical Power of the Heads of Tribes, or the Chieftains of Clans and Families, who in their military Expeditions, acted a Part more like that of Allies and Confederates with the Commander in Chief, than as his own proper Subjects: And who therefore, on the Division of the conquered Country, got so much Territory, and such Royaltic and Jurisdictions to be allotted to themselves, that they were all a Species of little Kings, each on his own Domain.
Granting therefore to these Objections every Thing they ask;—nay granting much more;—granting, I say, that the Heads of Tribes, and Chiefs of Clans of all the barbarous Nations of Antiquity, and more especially of Gaul and Germany, elected their Kings by unanimous Consent;—and that they bound them down to what Terms they pleased;—still the Question will return, Who elected these Heads and Chiefs?—And what Right of fair and unconstrained Delegation had they to act for others, as well as for themselves?—In fact, if the Chiefs of each Tribe, or Clan were not elected by unanimous Consent,—nay if they were not elected at all, What have we gained, by proving, That the Heads of these little Societies took great Care, that they themselves should be the only Tyrants?—Now, there is, I believe, not the least Vestige either in Cæsar, or Tacitus, or any other ancient Author, that the Individuals of each Tribe, or Clan, met together for Election of an Head, or Chief, in Case of a Vacancy.—No; these Chieftains acted on a quite contrary Principle respecting their own Power;—inasmuch as they considered, that they had an inherent and a natural Right to rule over their own Tribes. Clans, or Vassals, tho’ none had such a Right to rule over them.—Consequently all the Parade about the Restraints and Limitations laid on the Power of Kings, according to the Gothic Constitution, and during the Continuance of the Feudal System, ends at last in this, That the Kings were bound, but the Nobles were free.—A Sample and Illustration of which Kind of regal Submission, and of Aristocratical Exaltation, we have, or lately had, in the Gothic Constitution of that fertile but unhappy Kingdom of Poland. Nay more, the History of Magna-Charta itself is a striking Proof, and Confirmation of this Point. For the Barons of England, in that Struggle with King John, did not sight in Defence of the general Liberties of the People of England, but for the particular Preservation and Continuance of their own Domination over their Vassals. And at the last, what little was granted to the People in, and by that Charter, [little, I mean, in Comparison to the Liberties they have since enjoyed] was obtained by the King himself, not only without the Assistance, but even contrary to the Good-Will and Approbation of his Barons. For when he saw himself in danger of being stript of so much feudal Power, which of Course would strengthen his Enemies in Proportion as it weakened himself,* he obliged them to part with some of their exorbitant Claims, in Favour of their Vassals, according as they had compelled him to do the like in Favour of themselves. The Motives of his Action, it must be confessed, were not the purest, nor the most patriotic. But nevertheless the People in general reaped the Benefit. And thus it came to pass, that the Mass of the People of England, by a lucky Concurrence of Circumstances, and without any intentional Efforts of their own, got considerably by that famous Struggle, and thereby laid the happy Foundation of their future Greatness.
Now after having said so much in regard to England, we may be allowed to be very brief in respect to Scotland: For most undoubtedly, neither the great House of Douglas, in all their Civil Wars with the Crown, nor any of the Lords in the Lowlands, nor Chieftains in the Highlands harboured so much as a Wish to have their Power abridged over their respective Clans, Vassals, and Dependents, by their Attempts to abridge the Power of the Crown over themselves. As soon therefore should I believe that the late Mr. Beckford of famous, and patriotic Memory, in his Vociferation for Liberty, intended to set the wretched Slaves on his numerous Plantations in Jamaica free, as I could suppose, that a Gothic Baron meant to part with his Power over his own Vassals and Dependents, when he contended to abridge the regal Power over himself, and his Fellow Barons. And were the Planters in Jamaica to imitate their Brethren on the Continent, by setting up an intire Independence [Would to God, that not only they but all the Leeward-Islands were to do the like!—And that England had the Wisdom and good Sense to permit them to do it!] Were, I say, these Planters, to set up an independent Government, and to elect a King of their own,—there is no Doubt to be made, but that they would tie up his Majesty’s Hands as much as possible, and make him little more than a Cypher;—at the same Time, that they would expect to be at full Liberty themselves to whip and scourge, and torture their poor Negroes, according to their own brutal Will and Pleasure. Nay, it is very observable, that the most eminent Republican Writers, such as Locke, Fletcher of Sallown, and Rousseau himself, pretend to justify the making Slaves of others, whilst they are pleading so warmly for Liberty for themselves. And what is still more extraordinary, the greatest American Champions for the unalienable Right of Mankind, one the Generalissimo of the Republican Army, and the other lately the President of the Congress, have shewn by their own Example, that they have no Objections against Slavery, provided they shall be free themselves, and have the Power of enslaving others: For Mr. Washington, I am credibly informed, has several Slaves now on his Plantations, and Mr. Lawrens got his Fortune by acting as a Kind of Broker in the Slave Trade, buying and selling his Fellow-Creatures on Commission.
[* ]It was a great Mistake in a late noble Author to assert, That the Army of the Barons at Running-Mead was an Assembly of the People, demanding a Restitution of their Rights from a tyrannical Prince.—No: The Fact was just the contrary. For it was this tyrannical Prince, who took the People’s Part, even whilst they themselves were ignorant of the Matter, in order to raise a Power towards counter-balancing the Aristocracy of his great Barons.—I am credibly informed, That there is a Copy now extant of the very Magna-Charta, which the Barons intended should have passed, had their Plan succeeded in all Respects, in which there are none, or next to none of those great Advantages in Favour of the Bulk of the People, which the real Magna-Charta now contains. But it was hardly possible for them to withstand the Force of that Argument urged by the Royal Party, [and that too in the Presence of their own Vassals, then in Arms for their Sakes,] which was to this Effect:—“As you, who are the Vassals of the Crown, demand such and such Concessions from your Prince, you must grant the like Concessions to your own Vassals, to be inserted in the same Magna-Charta.”—See particularly the 69th Clause of Magna-Charta.