The Online Library of Liberty

A project of Liberty Fund, Inc.

• Sawbridge, Mayor.
• Preface to the First Edition.
• Preface to the Fifth Edition.
• Observations, &c.
• Part I.
• Sect. I.: Of the Nature of Liberty In General.
• Sect. II.: Of Civil Liberty and the Principles of Government.
• Sect. III.: Of the Authority of One Country Over Another.
• Part II.
• Sect. I.: Of the Justice of the War With America.
• Sect. II.: Whether the War With America Is Justified By the Principles of the Constitution.
• Sect. III.: Of the Policy of the War With America.
• Sect. IV.: Of the Honour of the Nation As Affected By the War With America.
• Sect. V.: Of the Probability of Succeeding In the War With America.
• Conclusion.
• Appendix.
• Postscript.

SECT. III.

Of the Authority of one Country over another.

FROM the nature and principles of Civil Liberty, as they have been now explained, it is an immediate and necessary inference, that no one community can have any power over the property or legislation of another community, that is not incorporated with it by a just and adequate representation.—Then only, it has been shewn, is a state free, when it is governed by its own will. But a country that is subject to the legislature of another country, in which it has no voice, and over which it has no controul, cannot be said to be governed by its own will. Such a country, therefore, is in a state of slavery. And it deserves to be particularly considered, that such a slavery is worse, on several accounts, than any slavery of private men to one another, or of kingdoms to despots within themselves.—Between one state and another, there is none of that fellow-feeling that takes place between persons in private life. Being detached bodies that never see one another, and residing perhaps in different quarters of the globe, the state that governs cannot be a witness to the sufferings occasioned by its oppressions; or a competent judge of the circumstances and abilities of the people who are governed. They must also have in a great degree separate interests; and the more the one is loaded, the more the other may be eased. The infamy likewise of oppression, being in such circumstances shared among a multitude, is not likely to be much felt or regarded.—On all these accounts there is, in the case of one country subjugated to another, little or nothing to check rapacity; and the most flagrant injustice and cruelty may be practised without remorse or pity.—I will add, that it is particularly difficult to shake off a tyranny of this kind. A single despot, if a people are unanimous and resolute, may be soon subdued. But a despotic state is not easily subdued; and a people subject to it cannot emancipate themselves without entering into a dreadful, and, perhaps, very unequal contest.

I cannot help observing farther, that the slavery of a people to internal despots may be qualified and limited; but I don’t see what can limit the authority of one state over another. The exercise of power in this case can have no other measure than discretion; and, therefore, must be indefinite and absolute.

Once more. It should be considered that the government of one country by another, can only be supported by a military force; and, without such a support, must be destitute of all weight and efficiency.

This will be best explained by putting the following case.—There is, let us suppose, in a province subject to the sovereignty of a distant state, a subordinate legislature consisting of an Assembly chosen by the people; a Council chosen by that Assembly; and a Governor appointed by the Sovereign State, and paid by the Province. There are likewise, judges and other officers, appointed and paid in the same manner, for administering justice agreeably to the laws, by the verdicts of juries fairly and indiscriminately chosen.—This forms a constitution seemingly free, by giving the people a share in their own government, and some check on their rulers. But, while there is a higher legislative power, to the controul of which such a constitution is subject, it does not itself possess Liberty, and therefore, cannot be of any use as a security to Liberty; nor is it possible that it should be of long duration. Laws offensive to the Province will be enacted by the Sovereign State. The legislature of the Province will remonstrate against them. The magistrates will not execute them. Juries will not convict upon them; and consequently, like the Pope’s Bulls which once governed Europe, they will become nothing but forms and empty sounds, to which no regard will be shewn.—In order to remedy this evil, and to give efficiency to its government, the supreme state will naturally be led to withdraw the Governor, the Council, and the Judges(a) from the controul of the Province, by making them entirely dependent on itself for their pay and continuance in office, as well as for their appointment. It will also alter the mode of chusing Juries on purpose to bring them more under its influence: And in some cases, under the pretence of the impossibility of gaining an impartial trial where government is resisted, it will perhaps ordain, that offenders shall be removed from the Province to be tried within its own territories: And it may even go so far in this kind of policy, as to endeavour to prevent the effects of discontents, by forbidding all meetings and associations of the people, except at such times, and for such particular purposes, as shall be permitted them.

Thus will such a Province be exactly in the same state that Britain would be in, were our first executive magistrate, our House of Lords, and our Judges, nothing but the instruments of a foreign democratical power; were our Juries nominated by that power; or were we liable to be transported to a distant country to be tried for offences committed here; and restrained from calling any meetings, consulting about any grievances, or associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy.

It is certain that this is a state of oppression which no country could endure, and to which it would be vain to expect, that any people should submit an hour without an armed force to compel them.

The late transactions in Massachusett’s Bay are a perfect exemplification of what I have now said. The government of Great Britain in that Province has gone on exactly in the train I have described; till at last it became necessary to station troops there, not amenable to the civil power; and all terminated in a government by the Sword. And such, if a people are not sunk below the character of men, will be the issue of all government in similar circumstances.

It may be asked—“Are there not causes by which one state may acquire a rightful authority over another, though not consolidated by an adequate Representation?”—I answer, that there are no such causes.—All the causes to which such an effect can be ascribed are Conquest, Compact, or Obligations conferred.

Much has been said of the right of conquest; and history contains little more than accounts of kingdoms reduced by it under the dominion of other kingdoms, and of the havock it has made among mankind. But the authority derived from hence, being founded on violence, is never rightful. The Roman Republic was nothing but a faction against the general liberties of the world; and had no more right to give law to the Provinces subject to it, than thieves have to the property they seize, or to the houses into which they break.—Even in the case of a just war undertaken by one people to defend itself against the oppressions of another people, conquest gives only a right to an indemnification for the injury which occasioned the war, and a reasonable security against future injury.

Neither can any state require such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil Liberty is, in this respect, on the same footing with Religious Liberty. As no people can lawfully surrender their Religious Liberty, by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise; so neither can any civil societies lawfully surrender their Civil Liberty, by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property. Such a cession, being inconsistent with the unalienable rights of human nature, would either not bind at all; or bind only the individuals who made it. This is a blessing which no one generation of men can give up for another; and which, when lost, a people have always a right to resume.—Had our ancestors in this country been so mad as to have subjected themselves to any foreign Community, we could not have been under any obligation to continue in such a state. And all the nations now in the world who, in consequence of the tameness and folly of their predecessors, are subject to arbitrary power, have a right to emancipate themselves as soon as they can.

If neither conquest nor compact can give such an authority, much less can any favours received, or any services performed by one state for another.—Let the favour received be what it will, Liberty is too dear a price for it. A state that has been obliged is not, therefore, bound to be enslaved. It ought, if possible, to make an adequate return for the services done to it; but to suppose that it ought to give up the power of governing itself, and the disposal of its property, would be to suppose, that, in order to shew its gratitude, it ought to part with the power of ever afterwards exercising gratitude.—How much has been done by this kingdom for Hanover? But no one will say that on this account, we have a right to make the laws of Hanover; or even to draw a single penny from it without its own consent.

After what has been said it will, I am afraid, be trifling to apply the preceding arguments to the case of different communities, which are considered as different parts of the same Empire. But there are reasons which render it necessary for me to be explicit in making this application.

What I mean here is just to point out the difference of situation between communities forming an Empire; and particular bodies or classes of men forming different parts of a Kingdom. Different communities forming an Empire have no connexions, which produce a necessary reciprocation of interests between them. They inhabit different districts, and are governed by different legislatures.—On the contrary. The different classes of men within a kingdom are all placed on the same ground. Their concerns and interests are the same; and what is done to one part must affect all.—These are situations totally different; and a constitution of government that may be consistent with Liberty in one of them, may be entirely inconsistent with it in the other. It is, however, certain that, even in the last of these situations, no one part ought to govern the rest. In order to a fair and equal government, there ought to be a fair and equal representation of all that are governed; and as far as this is wanting in any government, it deviates from the principles of Liberty, and becomes unjust and oppressive.—But in the circumstances of different communities, all this holds with unspeakably more force. The government of a part in this case becomes complete tyranny; and subjection to it becomes complete slavery.

But ought there not, it is asked, to exist somewhere in an Empire a supreme legislative authority over the whole; or a power to controul and bind all the different states of which it consists?—This enquiry has been already answered. The truth is, that such a supreme controuling power ought to exist no-where except in such a Senate or body of delegates as that described in page 7; and that the authority or supremacy of even this senate ought to be limited to the common concerns of the Empire.—I think I have proved that the fundamental principles of Liberty necessarily require this.

In a word. An Empire is a collection of states or communities united by some common bond or tye. If these states have each of them free constitutions of government, and, with respect to taxation and internal legislation, are independent of the other states, but united by compacts, or alliances, or subjection to a Great Council, representing the whole, or to one monarch entrusted with the supreme executive power: In these circumstances, the Empire will be an Empire of Freemen.—If, on the contrary, like the different provinces subject to the Grand Seignior, none of the states possess any independent legislative authority; but are all subject to an absolute monarch, whose will is their law, then is the Empire an Empire of Slaves.—If one of the states is free, but governs by its will all the other states; then is the Empire, like that of the Romans in the times of the republic, an Empire consisting of one state free, and the rest in slavery: Nor does it make any more difference in this case, that the governing state is itself free, than it does in the case of a kingdom subject to a despot, that this despot is himself free. I have before observed, that this only makes the slavery worse. There is, in the one case, a chance, that in the quick succession of despots, a good one will sometimes arise. But bodies of men continue the same; and have generally proved the most unrelenting of all tyrants.

A great writer before(a) quoted, observes of the Roman Empire, that while Liberty was at the center, tyranny prevailed in the distant provinces; that such as were free under it were extremely so, while those who were slaves groaned under the extremity of slavery; and that the same events that destroyed the liberty of the former, gave liberty to the latter.

The Liberty of the Romans, therefore, was only an additional calamity to the provinces governed by them; and though it might have been said of the citizens of Rome, that they were the “freest members of any civil society in the known world;” yet of the subjects of Rome, it must have been said, that they were the completest slaves in the known world.—How remarkable is it, that this very people, once the freest of mankind, but at the same time the most proud and tyrannical, should become at last the most contemptible and abject slaves that ever existed?

PART II.

IN the foregoing disquisitions, I have, from one leading principle, deduced a number of consequences, that seems to me incapable of being disputed. I have meant that they should be applied to the great question between this kingdom and the Colonies which has occasioned the present war with them.

It is impossible but my readers must have been all along making this application; and if they still think that the claims of this kingdom are reconcilable to the principles of true liberty and legitimate government, I am afraid, that nothing I shall farther say will have any effect on their judgments. I wish, however, they would have the patience and candour to go with me, and grant me a hearing some time longer.

Though clearly decided in my own judgment on this subject, I am inclined to make great allowances for the different judgments of others. We have been so used to speak of the Colonies as our Colonies, and to think of them as in a state of subordination to us, and as holding their existence in America only for our use, that it is no wonder the prejudices of many are alarmed, when they find a different doctrine maintained. The meanest person among us is disposed to look upon himself as having a body of subjects in America; and to be offended at the denial of his right to make laws for them, though perhaps he does not know what colour they are of, or what language they talk—Such are the natural prejudices of this country.—But the time is coming, I hope, when the unreasonableness of them will be seen; and more just sentiments prevail.

Before I proceed, I beg it may be attended to, that I have chosen to try this question by the general principles of Civil Liberty; and not by the practice of former times; or by the Charters granted the colonies.—The arguments for them, drawn from these last topics, appear to me greatly to outweigh the arguments against them. But I wish to have this question brought to a higher test, and surer issue. The question with all liberal enquirers ought to be, not what jurisdiction over them Precedents, Statutes, and Charters give, but what reason and equity, and the rights of humanity give.—This is, in truth, a question which no kingdom has ever before had occasion to agitate. The case of a free country branching itself out in the manner Britain has done, and sending to a distant world colonies which have there, from small beginnings, and under free legislatures of their own, increased, and formed a body of powerful states, likely soon to become superior to the parent state—This is a case which is new in the history of mankind; and it is extremely improper to judge of it by the rules of any narrow and partial policy; or to consider it on any other ground than the general one of reason and justice.—Those who will be candid enough to judge on this ground, and who can divest themselves of national prejudices, will not, I fancy, remain long unsatisfied.—But alas! Matters are gone too far. The dispute probably must be settled another way; and the sword alone, I am afraid, is now to determine what the rights of Britain and America are.—Shocking situation!—Detested be the measures which have brought us into it: And, if we are endeavouring to enforce injustice, cursed will be the war.—A retreat, however, is not yet impracticable. The duty we owe our gracious sovereign obliges us to rely on his disposition to stay the sword, and to promote the happiness of all the different parts of the Empire at the head of which he is placed. With some hopes, therefore, that it may not be too late to reason on this subject, I will, in the following Sections, enquire what the war with America is in the following respects.

• 1. In respect of Justice.
• 2. The Principles of the Constitution.
• 3. In respect of Policy and Humanity.
• 4. The Honour of the Kingdom.

And lastly, The Probability of succeeding in it.

[(a)]The independency of the Judges we esteem in this country one of our greatest privileges.—Before the revolution they generally, I believe, held their places during pleasure. King William gave them their places during good behaviour. At the accession of the present Royal Family their places were given them during good behaviour, in consequence of the Act of Settlement, 12 and 13 W. III. C. 2. But an opinion having been entertained by some, that though their commissions were made under the Act of Settlement to continue, during good behaviour, yet that they determined on the demise of the Crown; it was enacted by a statute made in the first year of his present Majesty, Chap. 23. “That the commissions of Judges for the time being shall be, continue, and remain in full force, during their good behaviour, notwithstanding the demise of his Majesty, or of any of his Heirs and Successors;” with a proviso, “that it may be lawful for his Majesty, his Heirs and Successors, to remove any Judge upon the address of both Houses of Parliament.” And by the same Statute their salaries are secured to them during the continuance of their commissions: His Majesty, according to the preamble of the Statute, having been pleased to declare from the Throne to both Houses of Parliament, “That he looked upon the independency and uprightness of Judges as essential to the impartial administration of Justice, at one of the best securities to the Rights and Liberties of his loving subjects, and as most conducive to the honour of his Crown.”

A worthy friend and able Lawyer has supplied me with this note. It affords, when contrasted with that dependence of the Judges which has been thought reasonable in America, a sad specimen of the different manner in which a kingdom may think proper to govern itself, and the provinces subject to it.

[(a)]Montesquieu’s Spirit of Laws, Vol. I. Book 11. C. xix.