to satisfy both, viz, for the conqueror's losses, and children's
maintenance, he that hath, and to spare, must remit something of his
full satisfaction, and give way to the pressing and preferable title of
those who are in danger to perish without it.
Sect. 184. But supposing the charge and damages of the war are to be
made up to the conqueror, to the utmost farthing; and that the children
of the vanquished, spoiled of all their father's goods, are to be left
to starve and perish; yet the satisfying of what shall, on this score,
be due to the conqueror, will scarce give him a title to any country he
shall conquer: for the damages of war can scarce amount to the value of
any considerable tract of land, in any part of the world, where all the
land is possessed, and none lies waste. And if I have not taken away the
conqueror's land, which, being vanquished, it is impossible I should;
scarce any other spoil I have done him can amount to the value of mine,
supposing it equally cultivated, and of an extent any way coming near
what I had overrun of his. The destruction of a year's product or two
(for it seldom reaches four or five) is the utmost spoil that usually
can be done: for as to money, and such riches and treasure taken away,
these are none of nature's goods, they have but a fantastical imaginary
value: nature has put no such upon them: they are of no more account by
her standard, than the wampompeke of the Americans to an European
prince, or the silver money of Europe would have been formerly to an
American. And five years product is not worth the perpetual inheritance
of land, where all is possessed, and none remains waste, to be taken up
by him that is disseized: which will be easily granted, if one do but
take away the imaginary value of money, the disproportion being more
than between five and five hundred; though, at the same time, half a
year's product is more worth than the inheritance, where there being
more land than the inhabitants possess and make use of, any one has
liberty to make use of the waste: but there conquerors take little care
to possess themselves of the lands of the vanquished, No damage
therefore, that men in the state of nature (as all princes and
governments are in reference to one another) suffer from one another,
can give a conqueror power to dispossess the posterity of the
vanquished, and turn them out of that inheritance, which ought to be the
possession of them and their descendants to all generations. The
conqueror indeed will be apt to think himself master: and it is the very
condition of the subdued not to be able to dispute their right. But if
that be all, it gives no other title than what bare force gives to the
stronger over the weaker: and, by this reason, he that is strongest will
have a right to whatever he pleases to seize on.
Sect. 185. Over those then that joined with him in the war, and over
those of the subdued country that opposed him not, and the posterity
even of those that did, the conqueror, even in a just war, hath, by his
conquest, no right of dominion: they are free from any subjection to
him, and if their former government be dissolved, they are at liberty to
begin and erect another to themselves.
Sect. 186. The conqueror, it is true, usually, by the force he has over
them, compels them, with a sword at their breasts, to stoop to his
conditions, and submit to such a government as he pleases to afford
them; but the enquiry is, what right he has to do so? If it be said,
they submit by their own consent, then this allows their own consent to
be necessary to give the conqueror a title to rule over them. It remains
only to be considered, whether promises extorted by force, without
right, can be thought consent, and how far they bind. To which I shall
say, they bind not at all; because whatsoever another gets from me by
force, I still retain the right of, and he is obliged presently to
restore. He that forces my horse from me, ought presently to restore
him, and I have still a right to retake him. By the same reason, he that
forced a promise from me, ought presently to restore it, i.e. quit me of
the obligation of it; or I may resume it myself, i.e.
chuse whether I
will perform it: for the law of nature laying an obligation on me only
by the rules she prescribes, cannot oblige me by the violation of her
rules: such is the extorting any thing from me by force.
Nor does it at
all alter the case to say, I gave my promise, no more than it excuses
the force, and passes the right, when I put my hand in my pocket, and
deliver my purse myself to a thief, who demands it with a pistol at my
breast.
Sect. 187. From all which it follows, that the government of a
conqueror, imposed by force on the subdued, against whom he had no right
of war, or who joined not in the war against him, where he had right,
has no obligation upon them.
Sect. 188. But let us suppose, that all the men of that community, being
all members of the same body politic, may be taken to have joined in
that unjust war wherein they are subdued, and so their lives are at the
mercy of the conqueror.
Sect. 189. I say this concerns not their children who are in their
minority: for since a father hath not, in himself, a power over the life
or liberty of his child, no act of his can possibly forfeit it. So that
the children, whatever may have happened to the fathers, are freemen,
and the absolute power of the conqueror reaches no farther than the
persons of the men that were subdued by him, and dies with them: and
should he govern them as slaves, subjected to his absolute arbitrary
power, he has no such right of dominion over their children. He can have
no power over them but by their own consent, whatever he may drive them
to say or do; and he has no lawfull authority, whilst force, and not
choice, compels them to submission.
Sect. 190. Every man is born with a double right: first, a right of
freedom to his person, which no other man has a power over, but the free
disposal of it lies in himself. Secondly, a right, before any other man,
to inherit with his brethren his father's goods.
Sect. 191. By the first of these, a man is naturally free from
subjection to any government, tho' he be born in a place under its
jurisdiction; but if he disclaim the lawful government of the country he
was born in, he must also quit the right that belonged to him by the
laws of it, and the possessions there descending to him from his
ancestors, if it were a government made by their consent.
Sect. 192. By the second, the inhabitants of any country, who are
descended, and derive a title to their estates from those who are
subdued, and had a government forced upon them against their free
consents, retain a right to the possession of their ancestors, though
they consent not freely to the government, whose hard conditions were by
force imposed on the possessors of that country: for the first conqueror
never having had a title to the land of that country, the people who are
the descendants of, or claim under those who were forced to submit to
the yoke of a government by constraint, have always a right to shake it
off, and free themselves from the usurpation or tyranny which the sword
hath brought in upon them, till their rulers put them under such a frame
of government as they willingly and of choice consent to. Who doubts but
the Grecian Christians, descendants of the ancient possessors of that
country, may justly cast off the Turkish yoke, which they have so long
groaned under, whenever they have an opportunity to do it? For no
government can have a right to obedience from a people who have not
freely consented to it; which they can never be supposed to do, till
either they are put in a full state of liberty to chuse their government
and governors, or at least till they have such standing laws, to which
they have by themselves or their representatives given their free
consent, and also till they are allowed their due property, which is so
to be proprietors of what they have, that no body can take away any part
of it without their own consent, without which, men under any government
are not in the state of freemen, but are direct slaves under the force
of war.
Sect. 193. But granting that the conqueror in a just war has a right to
the estates, as well as power over the persons, of the conquered; which,
it is plain, he hath not: nothing of absolute power will follow from
hence, in the continuance of the government; because the descendants of
these being all freemen, if he grants them estates and possessions to
inhabit his country, (without which it would be worth nothing)
whatsoever he grants them, they have, so far as it is granted, property
in. The nature whereof is, that without a man's own consent it cannot be
taken from him.
Sect. 194. Their persons are free by a native right, and their
properties, be they more or less, are their own, and at their own
dispose, and not at his; or else it is no property.
Supposing the
conqueror gives to one man a thousand acres, to him and his heirs for
ever; to another he lets a thousand acres for his life, under the rent
of 50_l_. or 500_l_. per arm. has not the one of these a right to his
thousand acres for ever, and the other, during his life, paying the said
rent? and hath not the tenant for life a property in all that he gets
over and above his rent, by his labour and industry during the said
term, supposing it be double the rent? Can any one say, the king, or
conqueror, after his grant, may by his power of conqueror take away all,
or part of the land from the heirs of one, or from the other during his
life, he paying the rent? or can he take away from either the goods or
money they have got upon the said land, at his pleasure?
If he can, then
all free and voluntary contracts cease, and are void in the world; there
needs nothing to dissolve them at any time, but power enough: and all
the grants and promises of men in power are but mockery and collusion:
for can there be any thing more ridiculous than to say, I give you and
your's this for ever, and that in the surest and most solemn way of
conveyance can be devised; and yet it is to be understood, that I have
right, if I please, to take it away from you again to morrow?
Sect. 195. I will not dispute now whether princes are exempt from the
laws of their country; but this I am sure, they owe subjection to the
laws of God and nature. No body, no power, can exempt them from the
obligations of that eternal law. Those are so great, and so strong, in
the case of promises, that omnipotency itself can be tied by them.
Grants, promises, and oaths, are bonds that hold the Almighty: whatever
some flatterers say to princes of the world, who all together, with all
their people joined to them, are, in comparison of the great God, but as
a drop of the bucket, or a dust on the balance, inconsiderable, nothing!
Sect. 196. The short of the case in conquest is this: the conqueror, if
he have a just cause, has a despotical right over the persons of all,
that actually aided, and concurred in the war against him, and a right
to make up his damage and cost out of their labour and estates, so he
injure not the right of any other. Over the rest of the people, if there
were any that consented not to the war, and over the children of the
captives themselves, or the possessions of either, he has no power; and
so can have, by virtue of conquest, no lawful title himself to dominion
over them, or derive it to his posterity; but is an aggressor, if he
attempts upon their properties, and thereby puts himself in a state of
war against them, and has no better a right of principality, he, nor any
of his successors, than Hingar, or Hubba, the Danes, had here in
England; or Spartacus, had he conquered Italy, would have had; which is
to have their yoke cast off, as soon as God shall give those under their
subjection courage and opportunity to do it. Thus, notwithstanding
whatever title the kings of Assyria had over Judah, by the sword, God
assisted Hezekiah to throw off the dominion of that conquering empire.
And the lord was with Hezekiah, and he prospered; wherefore he went
forth, and he rebelled against the king of Assyria, and served him not,
2 Kings xviii. 7. Whence it is plain, that shaking off a power, which
force, and not right, hath set over any one, though it hath the name of
rebellion, yet is no offence before God, but is that which he allows and
countenances, though even promises and covenants, when obtained by
force, have intervened: for it is very probable, to any one that reads
the story of Ahaz and Hezekiah attentively, that the Assyrians subdued
Ahaz, and deposed him, and made Hezekiah king in his father's lifetime;
and that Hezekiah by agreement had done him homage, and paid him tribute
all this time.
CHAPTER. XVII.
OF USURPATION.
Sect. 197. AS conquest may be called a foreign usurpation, so usurpation
is a kind of domestic conquest, with this difference, that an usurper
can never have right on his side, it being no usurpation, but where one
is got into the possession of what another has right to.
This, so far as
it is usurpation, is a change only of persons, but not of the forms and
rules of the government: for if the usurper extend his power beyond what
of right belonged to the lawful princes, or governors of the
commonwealth, it is tyranny added to usurpation.
Sect. 198. In all lawful governments, the designation of the persons,
who are to bear rule, is as natural and necessary a part as the form of
the government itself, and is that which had its establishment
originally from the people; the anarchy being much alike, to have no
form of government at all; or to agree, that it shall be monarchical,
but to appoint no way to design the person that shall have the power,
and be the monarch. Hence all commonwealths, with the form of government
established, have rules also of appointing those who are to have any
share in the public authority, and settled methods of conveying the
right to them: for the anarchy is much alike, to have no form of
government at all; or to agree that it shall be monarchical, but to
appoint no way to know or design the person that shall have the power,
and be the monarch. Whoever gets into the exercise of any part of the
power, by other ways than what the laws of the community have
prescribed, hath no right to be obeyed, though the form of the
commonwealth be still preserved; since he is not the person the laws
have appointed, and consequently not the person the people have
consented to. Nor can such an usurper, or any deriving from him, ever
have a title, till the people are both at liberty to consent, and have
actually consented to allow, and confirm in him the power he hath till
then usurped.
CHAPTER. XVIII.
OF TYRANNY.
Sect. 199. AS usurpation is the exercise of power, which another hath a
right to; so tyranny is the exercise of power beyond right, which no
body can have a right to. And this is making use of the power any one
has in his hands, not for the good of those who are under it, but for
his own private separate advantage. When the governor, however intitled,
makes not the law, but his will, the rule; and his commands and actions
are not directed to the preservation of the properties of his people,
but the satisfaction of his own ambition, revenge, covetousness, or any
other irregular passion.
Sect. 200. If one can doubt this to be truth, or reason, because it
comes from the obscure hand of a subject, I hope the authority of a king
will make it pass with him. King James the first, in his speech to the
parliament, 1603, tells them thus,
/#
I will ever prefer the weal of the public, and of the whole
commonwealth, in making of good laws and constitutions, to any
particular and private ends of mine; thinking ever the wealth and
weal of the commonwealth to be my greatest weal and worldly
felicity; a point wherein a lawful king doth directly differ from a
tyrant: for I do acknowledge, that the special and greatest point
of difference that is between a rightful king and an usurping
tyrant, is this, that whereas the proud and ambitious tyrant doth
think his kingdom and people are only ordained for satisfaction of
his desires and unreasonable appetites, the righteous and just king
doth by the contrary acknowledge himself to be ordained for the
procuring of the wealth and property of his people.
#/
And again, in his speech to the parliament, 1609, he hath these words:
/#
The king binds himself by a double oath, to the observation of the
fundamental laws of his kingdom; tacitly, as by being a king, and
so bound to protect as well the people, as the laws of his kingdom;
and expressly, by his oath at his coronation, so as every just
king, in a settled kingdom, is bound to observe that paction made
to his people, by his laws, in framing his government agreeable
thereunto, according to that paction which God made with Noah after
the deluge. Hereafter, seed-time and harvest, and cold and heat,
and summer and winter, and day and night, shall not cease while the
earth remaineth. And therefore a king governing in a settled
kingdom, leaves to be a king, and degenerates into a tyrant, as
soon as he leaves off to rule according to his laws.
#/
And a little after,
/#
Therefore all kings that are not tyrants, or perjured, will be glad
to bound themselves within the limits of their laws; and they that
persuade them the contrary, are vipers, and pests both against them
and the commonwealth.
#/
Thus that learned king, who well understood the notion of things, makes
the difference betwixt a king and a tyrant to consist only in this, that
one makes the laws the bounds of his power, and the good of the public,
the end of his government; the other makes all give way to his own will
and appetite.
Sect. 201. It is a mistake, to think this fault is proper only to
monarchies; other forms of government are liable to it, as well as that:
for wherever the power, that is put in any hands for the government of
the people, and the preservation of their properties, is applied to
other ends, and made use of to impoverish, harass, or subdue them to the
arbitrary and irregular commands of those that have it; there it
presently becomes tyranny, whether those that thus use it are one or
many. Thus we read of the thirty tyrants at Athens, as well as one at
Syracuse; and the intolerable dominion of the Decemviri at Rome was
nothing better.
Sect. 202. Where-ever law ends, tyranny begins, if the law be
transgressed to another's harm; and whosoever in authority exceeds the
power given him by the law, and makes use of the force he has under his
command, to compass that upon the subject, which the law allows not,
ceases in that to be a magistrate; and, acting without authority, may be
opposed, as any other man, who by force invades the right of another.
This is acknowledged in subordinate magistrates. He that hath authority
to seize my person in the street, may be opposed as a thief and a
robber, if he endeavours to break into my house to execute a writ,
notwithstanding that I know he has such a warrant, and such a legal
authority, as will impower him to arrest me abroad. And why this should
not hold in the highest, as well as in the most inferior magistrate, I
would gladly be informed. Is it reasonable, that the eldest brother,
because he has the greatest part of his father's estate, should thereby
have a right to take away any of his younger brothers portions? or that
a rich man, who possessed a whole country, should from thence have a
right to seize, when he pleased, the cottage and garden of his poor
neighbour? The being rightfully possessed of great power and riches,
exceedingly beyond the greatest part of the sons of Adam, is so far from
being an excuse, much less a reason, for rapine and oppression, which
the endamaging another without authority is, that it is a great
aggravation of it: for the exceeding the bounds of authority is no more
a right in a great, than in a petty officer; no more justifiable in a
king than a constable; but is so much the worse in him, in that he has
more trust put in him, has already a much greater share than the rest of
his brethren, and is supposed, from the advantages of his education,
employment, and counsellors, to be more knowing in the measures of right
and wrong.
Sect. 203. May the commands then of a prince be opposed?
may he be
resisted as often as any one shall find himself aggrieved, and but
imagine he has not right done him? This will unhinge and overturn all
polities, and, instead of government and order, leave nothing but
anarchy and confusion.
Sect. 204. To this I answer, that force is to be opposed to nothing, but
to unjust and unlawful force; whoever makes any opposition in any other
case, draws on himself a just condemnation both from God and man; and so
no such danger or confusion will follow, as is often suggested: for,
Sect. 205. First, As, in some countries, the person of the prince by the
law is sacred; and so, whatever he commands or does, his person is still
free from all question or violence, not liable to force, or any judicial
censure or condemnation. But yet opposition may be made to the illegal
acts of any inferior officer, or other commissioned by him; unless he
will, by actually putting himself into a state of war with his people,
dissolve the government, and leave them to that defence which belongs to
every one in the state of nature: for of such things who can tell what
the end will be? and a neighbour kingdom has shewed the world an odd
example. In all other cases the sacredness of the person exempts him
from all inconveniencies, whereby he is secure, whilst the government
stands, from all violence and harm whatsoever; than which there cannot
be a wiser constitution: for the harm he can do in his own person not
being likely to happen often, nor to extend itself far; nor being able
by his single strength to subvert the laws, nor oppress the body of the
people, should any prince have so much weakness, and ill nature as to be
willing to do it, the inconveniency of some particular mischiefs, that
may happen sometimes, when a heady prince comes to the throne, are well
recompensed by the peace of the public, and security of the government,
in the person of the chief magistrate, thus set out of the reach of
danger: it being safer for the body, that some few private men should be
sometimes in danger to suffer, than that the head of the republic should
be easily, and upon slight occasions, exposed.
Sect. 206. Secondly, But this privilege, belonging only to the king's
person, hinders not, but they may be questioned, opposed, and resisted,
who use u