Div 1, Chap 1-2: Government

DIVISION 1: PUBLIC JURISPRUDENCE

Chap 1: the Original Principles of Government

• There are two principles which induce men to enter into a civil society:
  1. Principle of authority
  2. Principle of utility
• At the head of every small society, or association of people, is a person of superior abilities.
  • In a warlike society, he is a man of superior strength.
  • In a polished one, he is of superior mental capacity.
• Age and a long possession of power also have a tendency to strengthen authority.
  • Age is naturally in our imagination connected with wisdom and experience.
  • A continuance in power bestows a kind of right to the exercise of it.
• But superior wealth contributes to confer authority more than any of these qualities.
  • This does not proceed from any dependence that the poor have on the rich.
    • For generally the poor are independent and support themselves by their labour.
    • They expect no benefit from the rich them, they have a strong propensity to pay them respect.
  • This principle is fully explained in the Theory of Moral Sentiments.
    • It arises from our sympathy with our superiors being greater than that with our equals or inferiors.
    • We admire their [10] happy situation, enter into it with pleasure, and try to promote it.

 

• Superior abilities of body and mind are not so easily judged of.
  • It is more convenient and common to give the preference to riches.
• An old family, long distinguished by its wealth, has more authority than any other family.
  • An upstart is always disagreeable.
    • We envy his superiority over us
    • We think ourselves just as entitled to wealth as he is.
• If I am told that a man’s grandfather was very poor and dependent on my family, I will grudge very much to see his grandson in a station above me.
  • I will not be much disposed to submit to his authority.
• The four things that give one man authority over another are:
• • Superior age
  • Superior abilities of body and of mind
  • Ancient family
  • Superior wealth

 

• The second principle which induces men to obey the civil magistrate is utility.
  • Everyone knows the need for utility to preserve justice and peace in society.
• By civil institutions the poorest may get redress of injuries from the wealthiest and most powerful.
  • There may be some irregularities in particular cases.
  • But we submit to them to avoid greater evils.
• It is the sense of public utility, more than of private, which influences men to obedience.
  • It may sometimes be for my interest to disobey and to wish government overturned.
  • But I know that other men:
    • think differently, and
    • would not assist me [11] in the enterprise.
• I therefore submit to its decision for the good of the whole.

 

• Authority is perfect if:
  • government has been of a long standing in a country, and
  • it is supported by proper revenues, and
  • it is at the same time in the hands of a man of great abilities.

 

• In all governments, both these principles take place in some degree.
  • But in a monarchy, the principle of authority prevails.
  • In a democracy, the principle of utility prevails.
• Britain has a mixed government.
  • The factions formed some time ago under the names of ‘Whig’ and ‘Tory’.
  • They were influenced by these principles.
  • The Whigs submitted to government because of its utility and the advantages they derived from it.
  • The Tory pretended that:
    • it was of divine institution, and
    • to offend it was equally criminal as for a child to rebel against its parent.
• Men generally follow these principles according to their natural dispositions.
  • The principle of utility predominates in a bold and daring man.
  • A peaceable easy turn of mind is usually pleased with a tame submission to superiority.

 

• It has been a common doctrine in Britain that contract is the foundation of allegiance to the civil magistrate.
• But this is not the case.

 

1. The doctrine of an original contract is peculiar to Great Britain.
   • Yet government takes place where it was never thought of.
   • This is even the case with most of the people in this country.
   • Ask a common [12] porter or day-labourer why he obeys the civil magistrate, he will tell you:
     • that it is right to do so.
     • that he sees others do it
     • that he would be punished if he refused to do it, or perhaps
     • that it is a sin against God not to do it.
   • But you will never hear him mention a contract as the foundation of his obedience.

 

• Secondly, when certain powers of government were at first entrusted to certain persons on certain conditions, the obedience of those who entrusted it might be founded on a contract.
  • But their posterity have nothing to do with it.
  • They are not conscious of it.
  • Therefore, they cannot be bound by it.
• By remaining in the country you tacitly consent to the contract and are bound by it.
  • But how can you avoid staying in it?
• You were not consulted whether you should be born in it or not.
  • How can you get out of it?
• Most people:
  • know no other language nor country
  • are poor
  • are obliged:
    • to stay near the place where they were born, and
    • to labour for a subsistence.
• Therefore, cannot consent to a contract, though they may have the strongest sense of obedience.
• To say that by staying in a country, a man agrees to a contract of obedience to government is the same with carrying a man into a ship and, after he is far from land, to tell him that he has contracted to obey the master, by being in the ship.
  • The foundation of a duty cannot be a principle with which mankind is entirely unacquainted.
  • They must have some idea, however confused, of the principle on which they act.

 

• [13] But by the supposition of an original contract, by leaving the state you expressly declare that you will no longer continue a subject of it and are freed from the obligation which you owed it.
• Yet every state claims its own subjects and punishes them for such practices, which would be the highest injustice if their living in the country implies a consent to a former agreement.
• Again, if there be such a thing as an original contract, aliens who come into a country, preferring it to others, give the most express consent to it.
• Yet a state always suspects aliens as retaining a prejudice in favour of their mother country, and they are never so much depended upon as free-born subjects.
• English law is so influenced by this principle that no alien can hold a place under the government, even though he were naturalized by act of parliament.
  • Besides, if such a contract were supposed, why should the state require an oath of allegiance, whenever a man enters on any office?
  • For if they supposed a previous contract, what occasion is there for renewing it?
• Breach of allegiance or high treason is a much greater crime.
  • It is more severely punished in all nations than breach of contract, in which no more but fulfillment is required.
• Therefore, they must be on a different footing.
  • The lesser contract cannot involve in it the greater contract.
• Therefore, contract is not the principle of obedience to civil government, but the principles of authority and utility formerly explained.

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CHAPTER 2: THE NATURE OF GOVERNMENT AND ITS PROGRESS IN THE FIRST AGES OF SOCIETY

• We shall now explain:
  • the nature of government,
  • its different forms,
  • what circumstances gave occasion for it, and
  • by what it is maintained.

 

• The forms of government may be reduced to three:
  • monarchical
  • aristocratical
  • democratical.
• These may be blended in many ways.
• We usually denominate the government from that one which prevails.

 

• A monarchical government is where the supreme power is vested in one who can:
  • do what he pleases,
  • make peace and war,
  • impose taxes, etc.

 

• Aristocratical government is where a certain order of people in the state, either of the richest or of certain families, have the power to choose magistrates who manage the state.

 

• Democratical government is where the management of affairs belongs to the whole body of the people together.

 

• Aristocratical and democratical governments may be called republican.
• The division of government is into monarchical and republican.

 

• To acquire proper notions of government, it is necessary to:
  • consider its first form of it
  • observe how the other forms arose out of it.

 

• In a nation of hunters there is no government at all.
• The society consists of a few independent families [15] who:
  • live in the same village,
  • speak the same language, and
  • have agreed among themselves to keep together for their mutual safety
• But they have no authority one over another.
• The whole society interests itself in any offence.
  • If possible they make it up between the parties, if not they banish from their society, kill or deliver up to the resentment of the injured him who has committed the crime.
• But this is no regular government.
• for though there may be some among them who are much respected, and have great influence in their determinations, yet he never can do anything without the consent of the whole.

 

• Thus among hunters there is no regular government, they live according to the laws of nature.

 

• The appropriation of herds and flocks introduced an inequality of fortune.
  • It first gave rise to regular government.
• Until there is property, there can be no government.
  • The very end of government is to:
    • secure wealth, and
    • defend the rich from the poor.
• In this age of shepherds, if one man possessed 500 oxen, and another had none at all, he would not be allowed to possess them unless there were some government to secure them to him.
  • This inequality of fortune makes a distinction between the rich and the poor.
  • It gave the rich much influence over the ooor.
    • Those who had no herds must have depended on those who had them.
    • Because they could not now gain a subsistence from hunting, as the rich had made the game, now become tame, their own property.
• They therefore who had appropriated a number of flocks and herds, necessarily [16] came to have great influence over the rest.
• Accordingly, we find in the Old Testament that Abraham, Lot, and the other patriarchs were like little petty princes.
• This inequality of fortune in a nation of shepherds occasioned greater influence than in any period after that.
• At present, a man may spend a great estate and yet acquire no dependents.
• Arts and manufactures are increased by it, but it may make very few persons dependent.
• In a nation of shepherds, it is quite otherways.
  • They have no means of spending their property, having no domestic luxury, but by giving it in presents to the poor.
  • Through this, they attain such influence over them as to make them their slaves.

 

• We now explain:
  • how one man came to have more authority than the rest, and
  • how chieftains were introduced.
• A nation consists of many families who have met together, and agreed to live with one another.
  • At their public meetings there will always be one of superior influence to the rest.
  • He will direct and govern their resolutions, which is all the authority of a chieftain in a barbarous country.
• The chieftain is the leader of the nation.
  • His son naturally becomes the chief of the young people.
  • On the fathers’ death, the son succeeds to his authority.
• Thus chieftainship becomes hereditary.
  • This power of chieftainship comes in the progress of society to be increased by a variety of circumstances.
• The number of presents which he receives, increase his fortune, and consequently his authority.
• Among barbarous nations, nobody goes to the chieftain, or makes any application for his interest, without something in his hand.
  • In a civilized nation the man who gives the present is superior to the person who receives it, but in a barbarous nation the case is directly opposite.

[17]

• We shall now consider the different powers which naturally belong to government, how they are distributed, and what is their progress in the first periods of society.

 

• The powers of government are three, to wit, the legislative, which makes laws for the public good: the judicial, or that which obliges private persons to obey these laws, and punishes those who disobey:
• the executive, or as some call it, the federal power, to which belongs the making war and peace.

 

• All these powers in the original form of government belonged to the whole body of the people.
• It was indeed long before the legislative power was introduced, as it is the highest exertion of government to make laws and lay down rules to bind not only ourselves, but also our posterity, and those who never gave any consent to the making them.
• As for the judicial power, when two persons quarrelled between themselves, the whole society naturally interposed, and when they could not make up matters, turned them out of the society.
• During this early age crimes were few, and it was long before the punishment was made equal to the crime.

 

• Cowardice and treason were the first crimes punished.
• Cowardice among hunters is considered as treason.
  • Because when they went out in small numbers, if their enemy attacked them, and some of their party deserted them, the rest might suffer by it.
  • Therefore those who deserted were punished for treason.

 

• The priest generally inflicted the punishment, as it were by command of the gods.
  • The government was so weak at that time.
• The power of making peace and war belonged to the people.
  • All the heads of families were consulted about it.

 

• The judicial power which concerns individuals [18] was long precarious.
  • The executive power came very soon to be exerted absolutely as the society first interposed as friends and then as arbitrators.
• When any private quarrel happens on the property of this cow, society is not immediately concerned.
  • But it is deeply interested in making peace and war.
• In the age of shepherds this power is absolutely exerted.
• In Great Britain, we can observe vestiges of the precariousness of the judicial power, but none of the executive.
  • When a criminal was tried, he was asked how he his cause should be decided, whether by:
    • combat,
    • the ordeal trial, or
    • the laws of his country.
  • The society only obliged him not to disturb them in the decision.
  • In England the question still remains, though the answer is not now arbitrary.
• It was very common in the ruder ages to demand a trial by dipping their hands in boiling water.
  • In that way, almost everyone was found innocent, though now scarce any one would escape by this means.
• When people were constantly exposed to the weather, boiling water could have little effect upon them, though now, when we are quite covered, it must have a contrary effect.
  • This choice of trial shows the weakness of the judicial laws.
  • We find that the judicial combat continued in England as late as the days of Queen Elizabeth.
  • It has now worn out gradually and insensibly without so much as a law or a rule of court made against it.

 

• In the periods of hunters and fishers, and in that of shepherds, as was before observed, crimes are few; small crimes passed without any notice.
  • In those ages no controversies arose from interpretations of testaments, settlements, contracts, which render our law-suits so numerous, [19] for these were unknown among them.
• When these took place and difficult trades began to be practised, controversies became more frequent.
  • But as men were generally employed in some branch of trade or another, without great detriment to themselves they could not spare time to wait on them.
• All causes must be left undecided.
  • This would cause every inconvenience, or
  • they must fall upon some other method more suitable to the several members of society.
• The natural means they end up with would be to choose some of their number to whom all causes should be referred.
• The chieftain who was before this distinguished by his superior influence, when this comes to be the case, would preserve his wonted precedence, and
• would naturally be one of those who were chosen for this purpose.
• A certain number would be chosen to sit along with him.
  • In the first ages of society, this number was always big.
• They would be afraid to trust matters of importance to a few.
• Accordingly, we find that at Athens there were 500 judges at the same time.
• By this means, the chieftain would still further increase his authority, and
• the government would appear in some degree monarchical.
• But this is only in appearance, for the final decision is still in the whole body of the people, and the government is really democratical.

 

• The power of making peace and war was at first lodged in the people.
  • But when society advanced and towns were fortified, magazines prepared, stocks of money got together, generals and officers appointed, the people could not attend to deliberations of this kind.
• This province would either:
  • fall to the court of justice, or [20]
  • there would be another set of people appointed for this purpose, though it would naturally at first fall to the court of justice.
• This is properly called the senatorial power, which at Rome took care of the public revenue, public buildings, and the like.
• But afterwards at Rome, the court of justice and the senatorial one became quite distinct. The same may be said of the Areopagite court at Athens.

 

• We shall now observe nations in the two first periods of society, those of hunters and shepherds.

 

• In a nation of hunters and fishers, few people can live together.
  • For in a short time, any considerable number would destroy all the game in the country, and consequently would want a means of subsistence.
  • Twenty or thirty families are the most that can live together, and these make up a village.
• But as they live together for their mutual defence, and to assist one another, their villages are not far distant from each other.
• When any controversy happens between persons of different villages, it is decided by a general assembly of both villages.
• As each particular village has its own leader, so there is one who is the leader of the whole nation.
• The nation consists of an alliance of the different villages, and the chieftains have great influence on their resolutions, especially among shepherds. In no age is antiquity of family more respected than in this.
• The principle of authority operates very strongly, and they have the liveliest sense of utility in the maintenance of law and government.

 

• The difference of the conduct of these nations in peace and war is worth our observation.

 

• The exploits of hunters are never very considerable.
  • Few of them can march together.
  • Their number seldom exceeds 200 men.
  • Even these cannot be supported above 14 days.
  • Therefore, there is very little danger from a nation of hunters.
  • Our colonies are much afraid of them without any just grounds. [21]
  • They may give them some trouble by their inroads and excursions.
  • But can never be very formidable.
• On the other hand, a much greater number of shepherds can live together.
  • There may be 1,000 families in the same village.
  • The Arabs and Tartars have always been shepherds.
  • They have made the most dreadful havoc many times.
  • A Tartar chief is extremely formidable.
  • When one of them gets the better of another, the most dreadful and violent revolutions always happens.
  • They take their whole flocks and herds into the field with them.
  • Whoever is overcome loses his people and wealth.
  • The victorious nation follows its flocks and pursues its conquest.
  • If it comes into a cultivated country with such numbers of men, it is quite irresistible.
  • This is how Mohammad ravaged all Asia.

 

• There is a very great difference between barbarous nations and those that are a little civilized.
  • People can have no attachment to the soil where:
    • the land is not divided, and
    • the people live in huts which they carry with them.
  • All their property consists in living goods which they can easily carry.
• On this account, barbarous nations are always disposed to quit their country.
  • Thus we find such migrations among the Helvetii, Teutones, and Cimbrians.
  • The Huns dwelt for a long time on the north of the Chinese wall.
    • They drove out the Astrogoths on the other side of the Palus Maeotis, they again the Wisigoths, etc.

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