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CHAPTER VII: The Rights of the Supreme Power: and the Methods of Acquiring it. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

Edition used:

Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER VII

The Rights of the Supreme Power: and the Methods of Acquiring it.

I. The persons vested with the supreme power, have it <and the consequent rights> with that extent which the constitution or fundamental laws <of the people> have given them.1 The sum of civil power in all states is the same; the same quantity of it in every state resides some-where or other, at least with the body of the people. But the powers vested in the king, or in any councils, in one state, may be very different from what is vested in like persons or councils in others. For in some, certain rights of the people are expresly exempted from the power of any prince or political council; but in others, there’s no such exemptions [all the rights of the people are trust to their wisdom and fidelity]. But as the end of all civil power is acknowledged by all to be the safety and happiness of the whole body; any power not naturally conducive to this end is unjust; which the people, who rashly granted it under an error, may justly abolish again, when they find it necessary to their safety to do so.2 Nor can any thing be conceived more insolent or perfidious, than that persons intrusted with power solely for the good of a people, should strive to retain it by force, for their own grandeur, when it is found destructive to the people.

It were to be wished that in these cases, such powers should be abolished in a peaceable manner, by mutual consent, rather than by force. Nor is it justifiable in a people to have recourse for any lighter causes to violence and civil wars against their rulers, while the publick interests are tolerably secured and consulted. But when it is evident, that the publick liberty and safety is not tolerably secured, and that more mischiefs, and these of a more lasting kind, are like to arise from the continuance of any plan of civil power than are to be feared from the violent efforts for an alteration of it, then it becomes lawful, nay honourable, to make such efforts, and change the plan of government.

What is alleged about some peculiarly divine right, and inviolable sanctity of governors, especially monarchs, is a mere dream of court-flatterers. In one sense every right is divine which is constituted by the law of God and nature. The rights of the people are thus divine, as well as those of princes: nay since the later were constituted for the defence and protection of the former; the former should be deemed the more divine and sacred. The rights of the governor, as they are more important than those of any one private man, may be deemed more sacred than his private rights; but can never be deemed more sacred than the rights of the whole body. A good subject [citizen] ought to bear patiently many injuries done only to himself, rather than take arms against a prince in the main good and useful to the state; provided the danger only extends to himself. But when the common rights of the community are trampled upon; and what at first is attempted against one, is to be made a precedent against all the rest, then as the governor is plainly perfidious to his trust, he has forfeited all the power committed to him.3

II. In every sort of government the people has this right of defending themselves <by violence> against the abuse of power. If the prince’s power be limited, and yet he breaks over its bounds, invading such rights as the people had reserved in the very constitution of the power; the people’s right of resistance is unquestionable. But even in absolute governments they have the same right; if their governor, ceasing to use his power {as if he owned it destined} for the good of the body, should govern the whole state as his own property; and neglecting the common safety of all, turn every thing to the gratification of his own lust or avarice; or if he plainly declares a hatred of his people; or conducts all affairs in such a wretched manner, that not even the most sacred rights of the people, such as are necessary to any tolerable life, remain secure to them.4 Nor does this doctrine of resistance give to the people a civil superiority over their governors: for even slaves adjudged to the most miserable subjection {for their crimes}, may have a right to defend themselves <by violence> against certain [the fiercest] injuries their masters may attempt against them.

As to that question, who shall be judge in this disputed point, whether the governors by their perfidy and mal-administration have forfeited their right? If ’tis alleged, the people cannot judge as they are parties: for the same reason the governors cannot judge. The only recourse then should be to impartial arbiters, either within the state, or in some other nation, if this could be safe: but if not; surely the people have a better claim to judge in this point; since they at first entrusted their governors with such powers, and the powers were designed for the management of the people’s interests, and were constituted for their behoof. ’Tis true there are great dangers of mistakes on this head: but the governors are not exempted from errors more than the people. Men have often erred both about publick rights, and the private ones too of self-defence: but we must not for that reason deny that they have such rights.5

In this most important matter, no doubt, persons concerned are bound to use the utmost caution, and weigh all things on both sides. Nor ought we to involve our fellow-citizens in civil-wars, the most miserable [savage] of all wars, for any such lighter injuries, or wrong conduct of our governors, as may be incident sometimes to persons in the main good and of upright intentions. But when there’s no other way of preserving a people; and when their governors by their perfidious frauds have plainly forfeited their right; they may justly be divested of their power <by violence>, and others put into their places, or a new plan of power established.

Nor does this doctrine of the right of resistance in defence of the rights of a people, naturally tend to excite seditions and civil wars. Nay they have been more frequently occasioned by the contrary tenets.6 In all ages there has been too much patience in the body of the people, and too stupid a veneration for their princes or rulers; which {for each one free kingdom or state} <in the whole world> has produced many monstrous <states or rather> herds of miserable abject slaves or beasts of burden, {rather than civil polities of rational creatures}, under the most inhuman and worthless masters, trampling upon all things human and divine with the utmost effrontery.

III. Upon dethroning a tyrant, or upon the natural extinction of a royal family, or the death of an elective prince<, where there is no rule of succession>, there arises an interregnum. In which case, even altho’ there be nothing expresly provided in the constitution, yet the political union of the people is not quite dissolved. They all continue bound by that first covenant we mentioned, to consult their common interest by joint counsels.7 They seem to be in a sort of {simple} democracy for some time; in which it should be determined by plurality of votes of the whole, or of those at least who used to be concerned in the publick affairs, what shall be their future form of polity and who are to be promoted to the government.8 Nor is it just that any smaller part, without consent of the rest, should break off from the political union; unless the majority are setting up some unjust or destructive plan of polity.

IV. To princes, or rulers of any kind, who have evidenced integrity and fidelity in their trust, the highest deference and honour is due {from their subjects}; they should be supported and defended with the lives and fortunes of all, whether against rebels or foreign enemies. Nor are subjects [citizen] freed from this obligation, by any such lighter faults or mistakes of their governors, as may be incident to men in the main upright {and faithful to their trust}. But if {after all the efforts of their subjects,} such princes are conquered and dethroned, either by some competitor or some foreign power, so that there remain no probable hopes of their recovering their just rights; ’tis their duty in such cases to quit their claim: nay ’tis justly deemed extinct: since all obligations between governors and subjects are mutual, depending upon mutual offices. And when it becomes impossible for one side to perform his part, the other is freed from his obligation. The people therefor, after their utmost efforts for their old rulers have proved unsuccessful, may justly submit to the conqueror, when they cannot otherways consult their own safety. It would indeed be strange arrogance in any prince to expect that a whole people should be bound, by a vain zeal for his dignity and interest, to expose themselves to all the rage and fury of a conqueror{, to no valuable purpose}.9

V. As natural liberty is “the right of acting as one inclines within the bounds of the law of nature”; (nor could we hold any such liberty were there no laws to defend it from the force of the stronger:) so we say a people enjoys liberty when “each one is allowed to act as he inclines, within the bounds of civil law, and not subjected to the caprice of any other.” We should never look upon laws as eversive of liberty; but that ’tis sole enemy is the capricious humourous will or command of men in power. The Romans indeed in speaking of a free people, generally meant a democratical state; where men had their turns of commanding, as well as of obeying.10

VI. It was already shewn that civil power can scarce be constituted justly any other way than by the consent of the people; and that rulers have no other sacred rights or majesty, than what may arise from this: that of a large multitude of men, each one for himself subjected part of his rights to the administration of a certain person or council. And thus from a part of our natural liberty transferred to the ruler, and our property in a certain degree subjected to his disposal, arises the legislative power. In natural liberty also each one had a right to expose his life to the greatest dangers, in any honourable services in defence of his family or his neighbours, and when the common interest required it he could commit himself to the direction of others in such services; and hence the right of military command. <In natural liberty> Men had also this right of repelling injuries, and punishing by violence any one who attempted or executed any injury, and even of putting him to death if this was necessary for the common safety: and hence arises all criminal jurisdiction, even to the inflicting of capital punishments [or the right of imposing just punishments on crimes]. Nor need we have recourse to any extraordinary grants or commissions from God to explain any of these rights of civil sovereigns.

VII. Nor can any one form of government be esteemed more divine than others, on any other account than that it is better adapted to promote the prosperity of the community; which can least of all be alleged of absolute hereditary monarchies. Need we suggest here that no divine law natural or positive determines the order of succession to monarchies, whether the general hereditary, and that either by males only, or also by females; or the lineal hereditary.11 In the succession to private fortunes, tho’ this be manifest in general, that the goods plainly acquired for the behoof of a man’s family and kinsmen, should descend to his family or kinsmen upon his decease; yet there are not a few difficulties in determining the proportions. But as to civil governments, which, ’tis obvious, were never constituted for the behoof of a family, but for the interest of a whole nation; there seems no natural reasons that the succession to them should depend upon the proximity of blood to the former possessor; and much less that the lineal succession should be regarded.* All such right of succession must arise from human laws, or decrees of a people, and these sometimes very incautious and imprudent.

VIII. As to that much celebrated right of conquest, by which the conqueror claims the civil power to himself {and his heirs} over the conquered people; it has little better foundation generally than the claim of robbers and pirates {upon persons and their goods which have fallen into their hands}.{* } For first, unless the conqueror had a just cause, he acquires <and detains> no right. And then tho’ his cause was just [suppose his cause the most just], yet, as we said above,‡ his claim has certain bounds; nor has he a right to exact more from the vanquished than what is requisite <or useful> to repell the injury attempted, to repair all damages done, or to obtain sufficient security against injuries for the future. If he insists on more, he has no justice on his side in such demands. Now it is never necessary <or advantageous>, either for averting of injuries, or repairing of damages, that the conquered should be deprived of their liberty, or independency, and be reduced into the form of a province to the conqueror. Nay ’tis generally very pernicious to the common interests of mankind, that states should thus enlarge their power, and make it formidable to all around them. All present danger to the victorious is averted, and full reparation of damages generally obtained, long before their enemies are entirely subdued {and over-run by their arms}. The conquerors generally soon take to themselves abundant compensation out of the moveable goods of the conquered: and every state when thoroughly defeated, would always consent to make compensation this way, nay would pay an annual contribution for a certain term, to make up what was awanting; rather than lose their liberty and sovereignty, and be subjected to foreigners. And surely by these ways all damages could be abundantly repaired.{‡ }

As to securities against future injuries: surely such securities as are universally allowed to be sufficient against a state yet retaining much of its strength, shall be more than sufficient against one wholly exhausted and almost ruined by war: now {in all treaties,} these are deemed sufficient securities against states yet retaining much of their force, if they deliver hostages, give up their fleets, {or a great part of them,} surrender frontier towns with their fortifications, or receive garrisons of their neighbours into them [into their walled cities], or even if they dismantle them{, or demolish all the fortifications}. Nor is there any state that would not rather consent to all these, rather than become a province subjected to another [to a neigbour-state].

IX. If it be alleged that punishments should also be inflicted as a further security by deterring others: yet surely none should be punished but the guilty. Now the far greater part of any conquered people were involved in no guilt by their governors having entered into even the most unjust wars.{* } The conqueror therefor can demand no more of the body of a people than that they either give up their injurious governors, or desist to defend them any further, that the victor may punish them as they deserve. But as to any thing done unjustly or inhumanly in publick wars, the common interest of mankind would dissuade from making it matter of proper punishment. Within the bounds of any regular polity, ’tis generally highly probable or certain that the power of the laws and magistrates will be superiour to that of any criminal citizens; and that therefor they may be brought to justice. But in publick wars, the forces of the parties by their confederates and allies are so generally brought to a parity, that the event is very uncertain: and the just cause is often unsuccessful. This should restrain conquerors even in the justest causes from any severities{, under the notion of punishment}; as they will become precedents to others in very bad causes, which yet they may judge to be just. The victorious therefor should beware of establishing a precedent, which may be followed thereafter against themselves or their friends.

’Tis vain to allege any tacit convention between the parties in war, that that side shall have the civil power over both which happens to be victorious. Taking arms is rather an open declaration of the contrary, that neither side intends to submit its rights of any sort to the other; unless in those cases where there has been such covenants expresly made; nor was it ever, in any other case, deemed perfidious, that the party defeated rallys its forces, {makes new levies,} or gets new allies to continue the war. Can any one pretend, that that side which has a just cause [which judges his cause to be just], {defending or prosecuting its own rights,} makes any such convention? and if one side is known not to do it, we can never presume it on the other side <however it judges its own cause>. The patrons of this right of conquest too, can allege only that the supreme governors consented, and not the body of the people: but with what shadow of right can any governors, whose power was granted to them only in trust for protection of the people, pretend to alienate or transfer the whole people with all their rights to another, either absolutely or upon any contingency? suppose the governors made such an express convention: by this audacious perfidy they plainly forfeit their power; nor is the state bound by such a deed.

X. Since therefor all the authors who plead that certain civil sovereignties are patrimonial, so that they may be sold, divided{, or any way transferred}at the pleasure of the sovereign, suppose also that they are generally founded in conquest; what is said above shews that such power has no just foundation.12 Nay if it should happen that a state in the greatest consternation, upon an invasion from barbarians [enemies], should by their own deed submit themselves and all their rights to some potent neighbour, demanding nothing from them but protection; yet even such a deed cannot constitute a patrimonial power.* For not to mention the exception of unjust force and terror; or that this covenant being plainly of the onerous kind, yet does not maintain the essential equality: the very nature of the covenant, and the matter of it, shews that no patrimonial power could be intended in it. A state by submitting itself to a humane, civilized neighbour which exercised a gentle rule over its subjects, cannot be deemed to have consented also to any manner of oppression or vexations that thereafter this neighbour may inflict on them; nor that they should be made over to any barbarous prince or people at the pleasure of those entrusted themselves to. Nay if this superior state should attempt any thing very oppressive of this nature, the subject-people may justly shake off the yoke: since it was plainly upon other terms that they subjected themselves. They have a right to demand arbitration, as to the equity of any thing imposed beyond what should be deemed a just compensation for the protection received.

Nor can any right of sovereignty arise from any seeming consent of the conquered, which was only extorted by present force. For we shewed* above that such force is plainly unjust. But if the victor establishes among the vanquished such an equitable plan of civil power, as sufficiently consults their future safety and prosperity, so that upon experience of it they are truly satisfied to submit to it; this subsequent consent becomes a just foundation of his power, and is a sort of civil expiation of the injury done in the conquest.

XI. But further, as the right of any person of the royal-blood to succeed upon the demise of his predecessor, is not founded on any natural causes, but solely upon some {old law or} decree of the state [people]: the words of such laws or deeds are to be understood in the same way as like words about other matters deemed hereditary; and thus we are to collect from them what was the intention of the people in such deeds. When therefor this universally obtained in any country, that when the present possessor of any thing hereditary forfeits it, he forfeits not only for himself but all his kindred; we justly conclude that the peoples intention was that the forfeitures of the hereditary sovereignty should be in the same manner. The plea against extending forfeitures to the whole kindred of the person forfeiting, is very strong and plausible as to private fortunes, which all know were acquired chiefly for the behoof of the proprietor and his family; and this according to a natural obligation: so that children and kinsmen too have a natural claim to be supported and have their condition advanced out of such fortunes: and ’tis unjust that the fault of one of the joint proprietors should prejudice the rest, and prevent their obtaining what they are naturally entitled to. But as to hereditary sovereignties the case is quite different. They were not constituted for the behoof of the royal family, nor founded in consequence of any just claim they had for their own behoof; but for the interest of the whole nation, and chiefly to prevent the mischiefs to be apprehended in new elections of sovereigns: and therefore they are much more justly made liable to entire forfeitures from the whole family, than any private fortunes.

As therefor a people may justly dethrone a perfidious prince; they have a better right to exclude from the succession any one who shews himself plainly unfit for the trust: and such are those who hold tenets {about divine rights} which must excite them to trample upon the most sacred rights of the people, as soon as they get into power; or those who possessed with some furious superstition will subject their crown, or alienate no small parts of the supreme power, to some foreign prince, under the shew of a religious character [under the false name of pontifex];13 and at the same time think themselves commissioned by God to break through in the most audacious manner the fundamental laws or constitution, and all limits set by it to their power; and to force the subjects by the severest tortures either to believe, or falsely profess to believe, the most monstrous absurdities in religion, and to worship God in a way they judge impious. Any heir apparent who professes such tenets, or refuses upon a just demand to renounce and abjure them in the most solemn manner, may be excluded from succession with much better ground than if he were an ideot or a madman; as the holding of such tenets must make him more dangerous to a free people than any folly or madness.

: What we have said relates not only to monarchs but all sorts of governours, and to the power of a state itself over its colonies, or provinces. If any citizens, with permission of the <people or> government, leave their country, and at their own expence find new habitations; they may justly constitute themselves into an independent state{, in amity with their mother-country}. If any are sent off at the publick charge as a colony, to make settlements subject to the state, for augmenting its commerce and power; such persons should hold all the rights of the other subjects, and whatever grants are made to them are to be faithfully observed. If the mother-country attempts any thing oppressive toward a colony, and the colony be able to subsist as a sovereign state by itself; or if the mother-country lose its liberty, or have its plan of polity miserably changed to the worse: the colony is not bound to remain subject any longer: ’tis enough that it remain a friendly state. Nor are we to imagine that any early covenants founded upon errors about the most essential points in view, can still bind large societies of men fit to subsist as happy independent states, to continue in a submission eversive of all prosperity and safety. Nor has any thing occasioned more misery in human life than a vain and insolent ambition, both in princes and popular states of extending their empires, and bringing every neighbouring state under subjection to them; without consulting the real felicity either of their own people or of their new acquisitions. And hence have arose these vast unwieldy empires; the plagues of all around them; which after some time are ruined by their own bulk, with vast destruction of mankind.14

[1. ]See System 3.7.1, vol. II, p. 266. These opening paragraphs are to be contrasted with what Pufendorf says in De officio 2.9 on the supremacy, superiority and particular sanctity of the sovereign authority. See also Carmichael, Notes on Puf., pp. 162–65.

[2. ]See System 3.7.3, vol. II, p. 271, and vol. 4, p. 276.

[3. ]See System 3.7.2, vol. II, p. 268–70.

[4. ]Hutcheson, as well as Carmichael (Notes on Puf., pp. 169–71), plays down the differences between absolute and limited governments made by Pufendorf in relation to the people’s right of resistance.

[5. ]See System 3.7.4, vol. II, p. 273–74.

[6. ]Cf. System 3.7.6, vol. II, pp. 279–80, and Locke, Two Treatises 2.18, sections 207–8, and 2.19, sections 223–26.

[7. ]See Pufendorf, De officio 2.10.4 and De Iure nat. 7.7.7–10.

[8. ]That “interregna have the character of a temporary democracy” is what Pufendorf says in De interregnis (Dissertationes academicae selectae, Upsaliae 1677, pp. 261–301), and Carmichael quotes approvingly (Notes on Puf., p. 184).

[9. ]See System 3.7.5, vol. II, pp. 278–79.

[10. ]See System 3.7.7, vol. II, p. 281–82.

[11. ]See System 3.8.3, vol. II, pp. 286–89, where Hutcheson refers to Locke, Two Treatises 1.11. Hutcheson, following Locke’s arguments against Robert Filmer, sees a contradiction between the pretended divine institution of hereditary government and the positive character of the laws of succession.

[* ]See Book II. Ch. 8. 4. {The decisions of some questions about the succession in hereditary lineal kingdoms, turn upon very fantastick reasons. Some allege proximity as a natural reason; and yet an elder cousin-germain’s grandchild, shall often be preferred to a younger cousin-germain. They say too that seniority is a natural reason of preference; and yet the infant-grandchild of a deceased elder-brother takes before a second-brother of mature years. The preeminence of sex too is made a great matter; and yet the infant-grand-daughter by an elder-uncle deceased, shall take before a younger-uncle. In general, these potent causes of preference, proximity, seniority, and the sex, are not regarded as they are found in the competitors themselves; but as they were perhaps in their great-grandfathers or great-grandmothers, deceased an age or two before.} [This added footnote derives from what Hutcheson says in System 3.8.3, vol. II, p. 287–88.]

[* ]{Upon this subject see Locke on Government; whose reasonings are well abridged in Mr. Carmichaell’s notes on Puffendorf’s smaller book. Book II. ch. x.} [See Locke, Two Treatises 2. 16 and Carmichael, Notes on Puf., pp. 175–80.]

[‡ ]Book II. ch. xv. 5. 8. and Book III. ch. iii. 2.

[‡ ]{The reasonings in this and the following articles are designed against the pleas of Grotius and Puffendorf for the rights of conquest, and patrimonial kingdoms, or principalities, founded on it.}

[* ]{See Book III. ch. iii. 2.}

[12. ]For the patrimonial kingdoms, see Pufendorf, De officio 2.9.7 and De iure nat. 7.6.16; Carmichael says that “patrimonial kingdoms scarcely ever have a just beginning,” that they “are imperfect states,” that their ownership “does not include civil government over the people” (Notes on Puf., pp. 180–82).

[* ]The reasons here confuted are found in Grotius, L. I. iv. [The corresponding footnote of the Institutio refers to De jure belli 1.3.12. See also System 3.8.7, vol. II, pp. 297–99.]

[* ]§ 8th of this chap. [The Institutio rightly refers to 2.15.5 and 8 and 3.3.2.]

[13. ]The reference to King James II is as explicit here as in System 3.8.11, vol. II, p. 305–6. A more serene condemnation of the king is in Carmichael, Notes on Puf., pp. 185–87.

[14. ]For the same defense of the rights of the American colonies see System 3.8.12, vol. II, pp. 306–9.