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chapter 19: On the Limits of Sovereign Power and the Right of Resistance 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael [1724]

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Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).

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chapter 19

On the Limits of Sovereign Power and the Right of Resistance1

[Pufendorf contended that the government of any state, whatever its form, must be sovereign, that its actions cannot be rescinded by a superior, inasmuch as there is no body in a civil society superior to the sovereign. Carmichael comments:]

The author has not included the words by a superior without a purpose. For while sovereign power is indeed derived from the consent of the citizens, once it has been conferred it makes the person on whom it has been conferred truly superior to the rest of the citizens not only as individuals but as a whole. Hence it readily follows that the acts of the sovereign cannot be rendered void by anyone, as by a superior. But this does not prevent his actions from being rightly held to be void on some occasions, if it happens that he has clearly exceeded the limits of the power conferred on him, as defined by the very nature of civil government or by fundamental laws. [II.9.1.i]

A sovereign is not liable to human penalties nor to coercion as proceeding from a superior. Nor is there anyone to whom he is accountable. Further, the internal acts of governments, that is, those which terminate within the state itself, must carry a presumption of justice, when this presumption is not manifestly ruled out by signs to the contrary. Certainly no power in the state can be said without contradiction to have equal or superior force to the sovereign power. Yet the sovereign is nonetheless obliged to administer the government in such a way that no occasion will arise for his subjects to think that he is deviating from the public interest or exceeding the bounds of legitimate power. Hence, if public necessity demands from time to time even the appearance of such a deviation, it will also be necessary to explain the reason for that appearance, at the earliest moment. Much more should appropriate justifying reasons be made known to all in the case of external acts of government, in which the state clashes with neighboring states in war, at any rate in offensive war; for, in that case, the presumption of justice, which we spoke of above, is wanting. [II.9.2.i]

In any state, the sovereign has no superior who can impose an obligation on him, and as he cannot obligate himself by means of a law (i.e., by means of a superior), it follows clearly that the acts of a sovereign cannot fall within the jurisdiction of the civil laws. But notwithstanding [the logic of sovereign power]:

1. There can be no doubt that the sovereign is bound by the divine laws, both natural and positive, provided that they have been declared to him. And he is so bound not only as a man, in respect of the duties he shares in common with other men, but also as a sovereign, to administer the government in accordance with those laws.

2. He is also bound by the agreement in accordance with which government was conferred upon him and accepted by him, to exercise his government in the way that will most effectively provide for the safety and security of the people and the promotion of their advantage. Special articles concerning the manner and limits of the exercise of sovereignty may be included in this agreement from the beginning, or subsequently added by mutual consent of sovereign and subjects. Such articles are commonly called fundamental laws. The sovereign will be bound by these, too, not as laws issuing from a superior (although such public acts on the part of a state or sovereign are frequently given the name of laws inasmuch as they establish a rule of procedure) but as agreements into which he has entered. Furthermore, although we would not imagine a sovereign contracting an obligation (which would be quite absurd) but simply accepting the government on the terms on which it was offered to him, yet the sovereign would not be right to extend his power beyond the limits of the rights granted him.

3. It is consistent with this [limitation] that the sovereign be obliged to set limits on the acts of subjects and the consequences of such actions, in accordance with the laws in force in the state at the time. This restraint should be extended even to sovereigns who have the full exercise of legislative power, since new laws are to be applied to future, not to past, cases.

4. The consequences of the private actions of the sovereign, as of anyone else, are to be judged in accordance with the laws concerning such actions which are accepted in the state; unless the sovereign has declared, or circumstances reveal, that it has pleased him to exempt his actions from the force of those laws (as Grotius rightly remarked at II.XIV.2 and 5).

5. In all civil laws which contribute to the good morals of the state, whose content is relevant to the sovereign, Pufendorf gives useful advice at the end of this paragraph [that the sovereign be willing to comply with these laws in his own conduct].2 [II.9.3.i]

[It was Pufendorf’s judgment that citizens should patiently bear the severities of harsh government, that individuals ought to flee the country to escape misfortune rather than take up arms against their government. Carmichael commented at some length on this opinion:]

The author distinguishes individuals in this passage from the whole, or the greater part, of the people. This doctrine of individuals is further modified by Grotius (I.IV.7) and by Pufendorf in his larger work (VII.VIII.7). But Grotius also alleges in the same work that the right [of resistance] granted by nature has been abolished by Christian moral teaching.3 Quite rightly this view does not find favor with the distinguished Huber (On the Rights of Civil Society, I.9.3.33 and 43 ff.), nor with the illustrious Reverend B. Hoadly (Bishop of Hereford, formerly of Bangor): see his treatise published in English under the title, The Measures of Submission to the Civil Magistrate Consider’d.4 On the question of resistance itself, this seems certain: that no man has an unlimited right against another man, and consequently, where the right of one man over another ends, injury begins, and with it, the right of resistance, if we consider only expletive justice as it may be applied to the man who inflicted the injury; consult the remarks of Locke in the Treatise we have often cited, sec. 202.5

In these cases one must consider not only what one can do to defend oneself when a ruler manifestly exceeds the limits of the power conferred upon him, one must also consider one’s duty to one’s native land and one’s obligation to ensure the safety and security of many innocent citizens. For this reason it would be both wicked and stupid to attempt to involve the state in the calamities of civil war for an injury, however atrocious, which only one man, or a few men, had actually suffered. Certainly it does not seem that anyone of sound mind would lightly initiate a resistance which had that aim, unless he expected that the great mass of citizens would support him. And he could scarcely expect such support, however he might delude himself with vain hopes, if in such a case he spoke of injuries which were either tolerable, or which had not yet directly affected the great majority of the people. See again the Treatise of Locke, sec. 208.

But there are cases where the attacks of the sovereign do injury not so much to the private rights of individuals as to public rights, i.e., those rights which are understood to be transferred by individuals to civil government when they enter civil society. If for example a king who is limited by laws behaves like an absolute monarch, it is within the power of the civil society to defend these rights, although violent resistance should not be offered on these grounds before clear signs have shown that the people or the majority of the people wish it. When I use the word people, I mean the citizens who are so called in a more eminent sense, more or less as Pufendorf describes them above (On the Duty of Man and Citizen, II.6.13), i.e., those who by direct consent and agreement made with the sovereign himself, originally instituted the state, and those who have succeeded to the rights they possessed relating to their public position. But who are to be included in this number? We have pointed out that not all heads of households qualify (pp. 154–55). The composition of the body of citizens, properly so called, is to be inferred from the fundamental laws and customs of each state. It must also be determined, by those laws and customs, whether the citizens are to be counted as individuals, or by certain divisions, as members of which they have the right of casting a vote in public assemblies through delegates. However, in order that their will to resist may become known in such a case, it is not always necessary for them to declare their will gathered in assembly. For it sometimes happens that assemblies in which the genuine will of the state could express itself in a regular manner cannot be held without first offering violent resistance. In this case necessity requires that the public will be inferred from other signs, which are usually apparent, as was the case in the British Kingdoms in 1688, when under the providence of God, the happy liberator of these islands delivered them from the jaws of papal tyranny when they were all but devoured.

If, in addition to those grave causes which arouse just and necessary public resistance, there is a pertinacious cunning which manifestly intends to devise similar injuries in future, so far as situation and opportunity permit, the people are no longer bound to leave the guardianship of their rights to one who has by his actions openly declared himself an enemy of those rights.6 For nothing is more absurd than that the right of government should come into collision with the end of government. Further, anyone who assumes a duty on another’s behalf, and then proclaims by words or deeds that he refuses to perform it within the conditions under which and for which it was entrusted to him, should by that very fact be considered to have renounced it.

However, not even in cases of this kind can a government which has once been legitimately established be completely rejected or abjured before the will of the people has been solemnly declared. It is true that the dissolution of the obligation toward a ruler is not to be sought so much in the decision of the people (as if this alone could deprive a sovereign of power in the way that a lower magistrate is deprived by decision of a higher magistrate) as from the evidence of the situation itself; that is, from the fact that the sovereign has notoriously and persistently exceeded the limits of the power conferred upon him, has abused it to bring disaster on the civil society, and has sufficiently revealed his intention of abusing it in future. Yet even granted the abuse, which ought to be manifest in itself, it is still for the people to determine what particular means are appropriate for public precaution against future abuse. They must decide whether it should be by curtailing the resources of the sovereign ruler or by entrusting the government to someone else. Therefore even in those extreme cases which demand an extraordinary remedy, nothing more should be permitted to individuals than to repel present force by force, and to ensure that there is opportunity for the state to provide against the common danger by common counsel.

Much less is it right for individuals to punish a sovereign, however delinquent. It is certainly obvious that this is not permitted, so long as he retains the government; and in most monarchies, it is accepted by law or custom that the person of the king be considered sacrosanct. But once he has fallen from power, power devolves upon the civil society, and it is there therefore that the capacity lies to make a decision in so grave a matter as the punishment of one who recently held sovereign power. There is further the question of the penalty to be inflicted in this case by the people themselves or by his successor in government, a particularly difficult and dangerous question, as the distinguished Huber recognizes (On the Rights of Civil Society, I.9.4.40 ff.). For it seems absurd even to suppose, as Huber warns us, that he who has once held a legitimately acquired kingship should be brought to judgment by those who have been his subjects, be compelled to plead his cause, and submit to condemnation and punishment; it cannot but move men’s indignation; it is unheard of in any age, except in the example which a furious faction gave in this island in the last century, a faction which had previously oppressed the state itself with armed violence. But even in a case of this kind it is a no less outrageous species of crime secretly to kill or to overwhelm by popular attack one who is already stripped of the power to do harm. Hence the author we have just cited rightly concludes that the better counsel is with those who wish to protect the public security by restricting the punishment of a deposed king to simple exile or perpetual imprisonment.7 In addition there is no doubt that it is right to use his wealth and resources to repair the harm he did to the society or to individuals.

As far as concerns the seven cases surveyed by Grotius (I.IV.8–14), it may be questioned whether the kind of resistance justified above, which was also adopted in the happy Revolution of these Kingdoms, falls under any or all of these cases, as they are understood by that eminent man. However, I have no doubt that this resistance can be defended on the basis of some of them for an obviously similar reason. For it is not only the man who openly professes himself an enemy of the whole people who is to be considered as bent on the destruction of a people, and as having the intention to ruin it (sec. 11); but also he whose administration tends notoriously and persistently to bring disaster on the people (compare Locke’s Treatise, sec. 210). Moreover a government, like a marriage, can be regarded as a trust (see Grotius, sec. 12) in which the essential articles of the agreement on which it was founded have been violated, and the end for which it was established frustrated; even if a trust clause was not expressly included. So too he who confers on another a right against himself, within certain limits and for a specific purpose, need not add that he will be allowed to resist (see Grotius, sec. 14) if the other should make demands that obviously exceed the prescribed limits, or manifestly deviates from the intended purpose. Hence, in particular, a king’s power may be circumscribed by the explicit limitation that he may not alter the laws, or make new laws, unless the people consents, either directly or through its delegates meeting in assemblies. Whether this arrangement should be called, according to the view of Grotius (sec. 13), a division of sovereignty between king and people or not, at any rate it includes a right in the people not to be compelled to observe laws to which it has not given its consent. It therefore includes also the capacity to resist any force which attempts to violate this right of the people, i.e., the right to demand the observance of such laws or to take action against those who do not observe them. For no conception of a perfect right, and this applies particularly to the power of government, can fail to include the capacity to protect that right; nor should this capacity be thought to have been abolished by the Gospel, whether in respect of other rights or above all in respect of government. Therefore it was not without reason that the doctrine of this section (Grotius, sec. 13) was considered to be applicable to the case we are discussing here by the noble Stanhope, distinguished in the arts of peace and war alike, whose death was lamented by good men everywhere, in his public case against Sacheverell.8

I feel that this disquisition has expanded further than the plan of our work required. But I am not afraid that fair judges will find it inappropriate in the reign of an excellent king, against whom no resistance from his subjects ever was or is to be feared, except by partisans of the doctrine which condemns all resistance indiscriminately. That their designs, which have in the past been utterly crushed, may finally cease or always be in vain, may God ensure in his providential care for the religion and liberty of the British peoples. [II.9.4.i]

Here we must be careful that we do not confound things which are distinct; many people go wildly astray on this subject. For a limited government does not cease to be sovereign, nor should a limited monarchy be confused with a mere principate. In the former the prince truly enjoys sovereign power, even though he exercises it within certain limits established in the conferral of power, and may require the consent of the people to exercise some part of it. In the latter the prince is only a distinguished magistrate whose acts can be declared null and void by the senate and people by force of their superior authority. Also absolute government provided it is understood as civil government must not be confused with despotism. For civil government is only the authority to rule others for their common safety and the preservation of their liberty and property. And an absolute government differs from a limited government only in the means employed by the sovereign to pursue those ends. Whereas a limited monarch governs for the benefit of civil society within prescribed limits and with the consent of others to use means of certain kinds, an absolute monarch pursues the same objectives guided only by his own judgment and by taking whatever measures seem best to him. In contrast [to these forms of civil government] a despotic government employs the services and property of his subjects at his pleasure and for the benefit of himself alone. Such governments cannot be acquired by right, I would say, over any entire people, nor can they be maintained through successive generations. For I have shown above (pp. 139–40) that the justification of the imposition of servitude on men against their will applies only to a few individuals, never to an entire existing people, and therefore even less to its future members. And there are certainly far fewer people who would want to consent to this condition of their own will.

Nor can the use of the land for the sake of which civil government is established forever, as we said above (pp. 150–53), be linked with an obligation of servile subjection. The owner of the land certainly has the right to dispose of his property as he wishes, but it must be in such a way that his property serves the natural uses for the sake of which property was granted to men by God. Hence the owner of a large tract of land, sufficient for the habitation of many men, or many households, cannot rightly require that anyone who may live on that land must be willing to submit to the yoke of his own despotic government; nor can he transfer to anyone else the right to impose such a condition. For men could not tolerate this iniquitous condition, hence it would tend to subvert the working out of the divine plan by which the surface of the earth has been granted to the human race for habitation.

Nevertheless, civil government may rightly be established over entire peoples, in both its limited and its absolute forms, and over certain individual men also in its despotic form. Some governments however qualify as tyrannical: a government assumed by someone to whom it does not belong by right, or a limited government assumed by someone to whom it belongs within certain limits, but exercised beyond those limits notoriously and persistently. Hence limited government, if exercised as absolute, and absolute civil government, if exercised as despotic, and despotic government itself, if exercised with brutal and intolerable cruelty to the person of the slave, is to be branded with the stigma of tyranny. For it is obvious from what has been said, that every human government over other men has its bounds and limits. And there is no government which does not admit of some abuses to which a just resistance may be opposed. As for the right of putting a man to death for a capital crime (which, as we taught above,9 belongs in the natural state to each man individually), it would be quite improper to call it a power of government. And yet it would be possible to threaten a man whom one had the right to kill, with injuries which he could not only resist legitimately but which he ought to resist; thus even in this case the license of one man against another would have its limits.

I cannot imagine what Master Spavan had in mind, in his English epitome of Pufendorf’s work Of the Law of Nature and Nations,10 illustrated with notes which he drew, as he himself says, from the storehouse of Barbeyrac, when he chose to gloss these words of the author (which Barbeyrac does not annotate) with a paragraph from the Jus Regium of our countryman Mackenzie, which begins with these words, I cannot but highly praise our ancestors who so prudently chose absolute monarchy, etc.11 I pass over the question, whether by these words Mackenzie has contradicted himself by deriving absolute monarchy from the choice of the people, since he elsewhere carefully insists that it was established by God himself and by Nature. But it cannot be accepted that he should describe the monarchy of the Scots as absolute, without adding any qualifications. For among the Scots it was never in the power of the king either to make laws or to impose taxes, unless the orders of the kingdom agreed. And it is well known that political writers refer to such a government not as an absolute but as a limited monarchy. As for the curious reasons which Mackenzie offers in the passage cited and elsewhere in the same book, in his effort to disparage the familiar constitution of his native country, these reasons, by his own admission, had no more weight than the authority of the decrees which had been published shortly before by his patrons (the Oxford men) and signally deserved to go up in smoke in the same flames. (See the Dedicatory Epistle in that book, and compare the last part of the “Judgement against Sacheverell.”)12 However, I would not like this to be taken to imply that I do not myself equally detest a good many of the propositions condemned by those decrees, or that I would in any way detract from the wholly justified reputation which that most ancient and distinguished university enjoys among all those who cultivate letters. As Oxford has always flourished in esteem for every kind of learning, so has it not failed from time to time to assert the just cause of liberty, nor will it cherish forever (we believe) sentiments hostile to that cause. [II.9.5.i]

It may be understood from the observations contained in the above paragraphs that these [limitations] are not laws properly so called nor precepts that proceed as from a superior. They are agreements, or rather articles of the fundamental agreement by which government is conferred. One may readily draw the following conclusions.

1. Civil government, even at its most extensive, is said to be absolute, not simply but in a qualified sense, i.e., it does not exclude all limitations, but only specifically expressed limitations, which do not flow of their own nature from the end for which civil society is established.

2.Specific, as well as general, limitations might be valid, even if the sovereign were assumed to have taken no obligation upon himself. For in order not to owe obedience beyond certain limits, it is enough not to have obligated oneself beyond those limits. And yet it is entirely abhorrent to the end for which civil government is instituted to believe that individuals or groups confer its exercise over themselves on someone who is not in turn obliged to conduct his government within the limits and according to the ends for which it was established. And certainly an obligation of this kind, as it applies to the positive acts [of a sovereign], can be constituted only by an agreement.

3. Neither an agreement nor any special limitations on government established by agreement, invests the government in the people, as distinct from the ruler (not even if the agreement includes a provision that the ruler can only perform certain acts of government with the consent of the people). Even less may such agreements permit the people to exercise government over the king himself.

4. In order to justify resistance against a ruler in certain extreme circumstances, there is no need to take refuge in an agreement by which the ruler obligated himself, nor to assume special limitations of power, nor to ascribe government or a part of it to the people itself. It is enough that he has manifestly exceeded the limitations which may be satisfactorily inferred simply from the purpose of establishing a civil society. However I do not deny that this judgment comes much more easily, and provides much readier means of protecting liberty, when special limits have been set to government by some positive constitution, or by a uniformly accepted custom. Hence there is no doubt that the public safety is better guarded in a monarchy or aristocracy if it is limited than if it is absolute.

5. In every state properly so called it is the normal situation, as the author points out (Of the Law of Nature and Nations, VII.VI.7, toward the end), that there is an absolute power, habitually at least, if not always in practice, since what a king or senate may lack with respect to absolute power is understood to be in the hands of the people, and can be furnished by it. For it is not easy in practice for individuals entering the civil state to add special limitations or exceptions to the agreement by which each subjects his own will to the will of all; yet if it were agreed that they had been added, there is no doubt that they would be valid. Hence it is not at all abhorrent to reason, that when two independent states move to amalgamate into one, they may each insist that certain particular rights, which would otherwise be at the discretion of the civil government, are rights which they do not submit to the judgment either of the prince or of the whole state which has been made from the union of the two. It would be absurd to object here that reservations of this kind are no more than laws which later laws might abrogate; for it is quite clear that they are the means by which one or other section of the united state acquires, or rather retains, a right which cannot rightly be taken from it against its will. And yet this section is not regarded as deciding this either by the will of the whole or of a majority, because it is a matter which it intended explicitly to exempt from the discretion of the majority. Rights therefore which are reserved in this manner at the time of the union of the states are as valid for either section of the state against the whole as the rights received in the transfer of a limited monarchy are valid for the people itself against the king; and it is for the same reason, namely the internal quality of the consent by which the government is conferred. [II.9.6.i]

[1.] From the notes to bk. II, ch. 9, “On the Characteristics of Civil Government.”

[2.] It was a persistent theme of the natural law theories of Samuel Pufendorf, Ulrich Huber, and Gershom Carmichael that government could be sovereign and also limited. For discussion of their theories of limited sovereignty and its application to the governments of their own countries, see Moore and Silverthorne, “Protestant Theologies,” pp. 171–97.

[3.] Rights of War and Peace, I.III.7 ff.

[4.] Hoadly, The Measures of Submission.

[5.] For expletive justice, see above, pp. 43–44. Locke’s and Carmichael’s justification of the right to resist tyranny was not a right of retribution so much as a right of restraint and reparation, consistent with Locke’s theory of the right to punish as described in the Second Treatise of Government, ch. 2, secs. 8–11, pp. 272–74; and by Carmichael in ch. 7 above, pp. 69–71. See also below, pp. 275 ff.

[6.] Barbeyrac also defended, against Pufendorf and other commentators on the work of Pufendorf, the right of subjects to defend themselves against a government that violated the natural rights of the subjects. He concluded his comprehensive rebuttal of other jurists on this subject by observing with pleasure that Carmichael had followed the opinions of Grotius and Locke on the right of resistance, and not allowed himself to be misled by Pufendorf (Of the Law of Nature and Nations, VIII.III.4, n. 8, pp. 762–63).

[7.] Huber, De Jure Civitas, p. 263; and Moore and Silverthorne, “Protestant Theologies,” pp. 196–97.

[8.] The speech given by the secretary of state, Sir James Stanhope, one of the six managers of the impeachment of the High Tory clergyman Dr. Henry Sacheverell for sedition and subversion of “her Majesty’s government and the Protestant succession as by law established …” (Articles of Impeachment, Preamble) before the House of Lords in 1710 went furthest in proclaiming an original contract and the right of resistance to be the basis of civil government. The speech is printed in The Tryal of Dr. Henry Sacheverell, pp. 71–77. See Holmes, The Trial of Dr. Sacheverell, pp. 139–40.

[9.] See above, pp. 69–71.

[10.] J. Spavan, Pufendorf’s Law of Nature and Nations, vol. II, pp. 219–21, n. (b). Spavan’s commentary on Pufendorf was studied in dissenting academies in England. See MacLachlan, English Education under the Test Acts, p. 132.

[11.] Mackenzie, Jus Regium, p. 42.

[12.] Ibid., pp. i–iii; and The Tryal of Dr. Henry Sacheverell, pp. 261 and 327.