Essay on the First Principles of Government, 2nd Edition (1771)/chapter 3
SECTION III.
OF
CIVIL LIBERTY.
SECT. I.
Of the nature of Civil Liberty in general.
IT is a matter of the greatest importance, that we carefully distinguish between the form and the extent of power in a government; for many maxims in politics depend upon the one, which are too generally ascribed to the other.
It is comparatively of small consequence, who, or how many be our governors, or how long their office continues, provided their power be the same while they are in office, and the administration be uniform and certain. All the difference which can arise to states from diversities, in the number or continuance of governors, can only flow from the motives and opportunities, which those different circumstances may give their deputies, of extending, or making a bad use of their power. But whether a people enjoy more or fewer of their natural rights, under any form of government, is a matter of the last importance; and upon this depends, what, I should chuse to call, the civil liberty of the state, as distinct from its political liberty.
If the power of government be very extensive, and the subjects of it have, consequently, little power over their own actions, that government is tyrannical, and oppressive; whether, with respect to its form, it be a monarchy, an aristocracy, or even a republic. For the government of the temporary magistrates of a democracy, or even the laws themselves may be as tyrannical as the maxims of the most despotic monarchy, and the administration of the government may be as destructive of private happiness. The only consolation that a democracy suggests in those circumstances is, that every member of the state has a chance of arriving at a share in the chief magistracy, and consequently of playing the tyrant in his turn; and as there is no government in the world so perfectly democratical, as that every member of the state, without exception, has a right of being admitted into the administration, great numbers will be in the same condition as if they had lived under the most absolute monarchy; and this is, in fact, almost universally the case with the poor, in all governments.
For the same reason, if there were no fixed laws, but every thing was decided according to the will of the persons in power; who is there that would think it of much consequence, whether his life, his liberty, or his property were at the mercy of one, of a few, or of a great number of people, that is, of a mob, liable to the worst of influences. So far, therefore, we may safely say, with Mr. Pope, that those governments which are best administered are best:—that is, provided the power of government be moderate, and leave a man the most valuable of his private rights; provided the laws be certainly known to every one, and the administration of them be uniform, it is of no consequence how many, or how few persons are employed in the administration. But it must be allowed, that there is not the same chance for the continuance of such laws, and of such an administration, whether the power be lodged in few, or in more hands.
The governments now subsisting in Europe differ widely in their forms; but it is certain, that the present happiness of the subjects of them can by no means be estimated by a regard to that circumstance only. It depends chiefly upon the power, the extent, and the maxims of government, respecting personal security, private property, &c. and on the certainty and uniformity of the administration.
Civil liberty has been greatly impaired by an abuse of the maxim, that the joint unerstanding of all the members of a state, properly collected, must be preferable to that of individuals; and consequently that the more the cases are, in which mankind are governed by this united reason of the whole community, so much the better; whereas, in truth, the greater part of human actions are of such a nature, that more inconvenience would follow from their being fixed by laws, than from their being left to every man's arbitrary will.
We may be assisted in conceiving the nature of this species of liberty, by considering what it is that men propose to gain by entering into society. Now it is evident, that we are not led to wish for a state of society by the want of any thing that we can conveniently procure for ourselves. As a man, and a member of civil society, I am desirous to receive such assistance as numbers can give to individuals, but by no means that assistance which numbers, as such, cannot give to individuals; and, least of all, such as individuals are better qualified to impart to numbers. There are many things respecting human happiness that properly fall under the two last mentioned classes, and the great difficulty concerning the due extent of civil government lies in distinguishing the objects that belong to these classes. Little difficulty, however, has, in fact, arisen from the nature of the things, in comparison of the difficulties that have been occasioned by its being the interest of men to combine, confound, and perplex them.
As far as mere strength can go, it is evident, that numbers may assist an individual, and this seems to have been the first, if not the only reason for having recourse to society. If I be injured, and not able to redress my own wrongs, I ask help of my neighbours and acquaintance; and occasions may arise, in which the more assistance I can procure, the better. But I can seldom want the assistance of numbers in managing my domestic affairs, which require nothing but my own constant inspection, and the immediate application of my own faculties. In this case, therefore, any attempt of numbers to assist me, would only occasion embarrassment and distress.
For the purpose of finding out truth, individuals are always employed to assist multitudes; for, notwithstanding it be probable, that more discoveries will be made by a number of persons than by one person; and though one person may assist another in suggesting and perfecting any improvements in science; yet still they all act as independent individuals, giving voluntary information and advice. For whenever numbers have truth or knowledge for their object, and act as a collective body, i. e. authoritatively, so that no single person can have power to determine any thing till the majority have been brought to agree to it, the interests of knowledge will certainly suffer, there is so little prospect of the prejudices of the many giving way to the better judgment of an individual. Here, there is a case, in which society must always be benefited by individuals, as such, and not by numbers, in a collective capacity. It is least of all, therefore, for the advancement of knowledge, that I should be induced to wish for the authoritative interposition of society.
In this manner it might not be a very difficult thing, for candid and impartial persons, to fix reasonable bounds for the interposition of laws and government. They are defective when they leave an individual destitute of that assistance which they could procure for him, and they are burdensome and oppressive; i. e. injurious to the natural rights and civil liberties of mankind, when they lay a man under unnecessary restrictions, by controling his conduct, and preventing him from serving himself, with respect to those things, in which they can yield him no real assistance, and in providing for which he is in no danger of injuring others.
This question may be farther illustrated by two pretty just comparisons. Magistrates are the servants of the public, and therefore the use of them may be illustrated by that of servants. Now let a man's fortune or his incapacity be such that his dependence on servants is ever so great; there must be many things that he will be obliged to do for himself, and in which any attempt to assist him would only embarrass and distress him; and in many cases in which persons do make use of servants, they would be much more at their ease, if their situation would allow them to do without their assistance. If magistrates be considered in the more respectable light of representatives and deputies of the people, it should likewise be considered, that there are many cases, in which it is more convenient for a man to act in person than by any deputation whatever.
In some respects, however, it must be acknowledged, that the proper extent of civil government is not easily circumscribed within exact limits. That the happiness of the whole community is the ultimate end of government can never be doubted, and all claims of individuals inconsistent with the public good are absolutely null and void; but there is a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.
Some may think it best, that the legislature should make express provision for every thing which can even indirectly, remotely, and consequentially, affect the public good; while others may think it best, that every thing, which is not properly of a civil nature, should be entirely overlooked by the civil magistrate; that it is for the advantage of the society, upon the whole, that all those things be left to take their own natural course, and that the legislature cannot interfere in them, without defeating its own great object, the public good.
We are so little capable of arguing a priori in matters of government, that it should seem, experiments only can determine how far this power of the legislature ought to extend; and it should likewise seem, that, till a sufficient number of experiments have been made, it becomes the wisdom of the civil magistracy to take as little upon its hands as possible, and never to interfere, without the greatest caution, in things that do not immediately affect the lives, liberty, or property of the members of the community; that civil magistrates should hardly ever be moved to exert themselves by the mere tendencies of things, those tendencies are generally so vague, and often so imaginary; and that nothing but a manifest and urgent necessity (of which, however, themselves are, to be sure, the only judges) can justify them in extending their authority to whatever has no more than a tendency, though the strongest possible, to disturb the tranquility and happiness of the state.
There can be no doubt but that any people, forming themselves into a society, may subject themselves to whatever restrictions they please; and consequently, that the supreme civil magistrates, on whom the whole power of the society is devolved, may make what laws they please; but the question is, what restrictions and laws are wise, and calculated to promote the public good; for such only are just, right, and, properly speaking, lawful.
Political and civil liberty, as before explained, though very different, have, however, a very near and manifest connection; and the former is the chief guard of the latter, and on that account, principally, it is valuable, and worth contending for. If all the political power of this country were lodged in the hands of one person, and the government thereby changed into an absolute monarchy, the people would find no difference, provided the same laws, and the same administration, which now subsist, were continued. But then, the people, having no political liberty, would have no security for the continuance of the same laws, and the same administration. They would have no guard for their civil liberty. The monarch, having it in his option, might not chuse to continue the same laws, and the same administration. He might fancy it to be for his own interest to alter them, and to abridge his subjects in their private rights; and, in general, it may be depended upon, that governors will not consult the interest of the people, except it be their own interest too, because governors are but men. But while a number of the people have a share in the legislature, so as to be able to control the supreme magistrate, there is a great probability that things will continue in a good state. For the more political liberty the people have, the safer is their civil liberty.
There may, however, be some kind of guard for civil liberty, independent of that which is properly called political. For the supreme magistrate, though, nominally, he have all the power of the state in his hands, and, without violating any of the forms of the constitution, may enact and execute what laws he pleases; yet his circumstances may be such, as shall lay him under what is equivalent to a natural impossibility of doing what he would chuse. And I do not here mean that kind of restraint, which all arbitrary princes are under, from the fear of a revolt of their subjects; which is often the consequence of great oppression; but from what may be called the spirit of the times.
Magistrates, being men, cannot but have, in some measure, the feelings of other men. They could not, therefore, be happy themselves, if they were conscious that their conduct exposed them to universal hatred and contempt. Neither can they be altogether indifferent to the light in which their characters and conduct will appear to posterity. For their own sakes, therefore, they will generally pay some regard to the sentiments of their people.
The more civilized any country is, the more effectual will this kind of guard to political liberty prove; because, in those circumstances, a sense of justice and honour have got firmer hold of the minds of men; so that a violation of them would be more sensibly felt, and more generally and strongly resented. For this reason, a gentleman of fashion and fortune has much less to dread in France, or in Denmark, than in Turkey. The confiscation of an overgrown rich man's effects, without any cause assigned, would make no great noise in the latter; whereas in those countries, in which the forms of law and liberty have been long established, they necessarily carry with them more or less of the substance also.
There is not, I believe, any country in Europe, in which a man could be condemned, and his effects confiscated, but a crime must be alledged, and a process of law be gone through. The confirmed habit of thinking in these countries is such, that no prince could dispense with these formalities. He would be deemed insane, if he should attempt to do otherwise; the succession would be set aside in favour of the next heir, by the general consent of the people, and the revolution would take place without blood shed. No person standing near any European prince would hesitate what to do, if his sovereign should attempt to cut off a man's head, out of mere wantonness and sport, a thing that would only strike the beholders with awe in some foreign courts.
Should the English government become arbitrary, and the people, disgusted with the conduct of their parliaments, do what the people of Denmark have done, chuse their sovereign for their perpetual representative, and surrender into his hands all the power of state; the forms of a free government have been so long established, that the most artful tyrant would be a long time before he could render life and property as precarious as it is even in France. The trial by juries, in ordinary cases, would stand a long time; the habeas corpus would, generally at least, continue in force, and all executions would be in public.
It may be questioned whether the progress to absolute slavery and insecurity would be more rapid, if the king were nominally arbitrary, or only virtually so, by uniformly influencing the house of Commons.
In some respects, so large a body of men would venture upon things which no single person would chuse to do of his own authority; and so long as they had little intercourse but with one another, they would not be much affected with the sense of fear or shame. One may safely say, that no single member of the house would have had the assurance to decide as the majority have often done, in cases of controverted elections.
But, on the other hand, as the members of the house of Commons necessarily spend a great part of the summer months with their friends in the country, they could not shew their faces after passing an act, by which gentlemen like themselves, or even their electors, should be much aggrieved; though they may now and then oppress the poor by unreasonable game acts, &c. because they never converse with any of the poor except their immediate dependants, who would not chuse to remonstrate on the subject.
Besides, so long as the members of parliament are elected, though only once in seven years, those of them that are really chosen by the people can have no chance of being re-elected but by pleasing the people; and many of them would not chuse to reduce themselves and their posterity, out of the house, to a worse condition than they originally were. Let them be ever so obsequious to a court, they will hardly chuse to deprive themselves of all power of giving any thing for the future.
Independent, therefore, of all conviction of mind, there must be a minority in the house, whose clamour and opposition will impede the progress of tyranny; whereas a king, surrounded by his guards, and a cringing nobility, has no check. If, however, he be a man of sense, and read history, he may comprehend the various causes of the extreme insecurity of despotic princes; many of whom have appeared in all the pomp of power in the morning, and have been in prison, without eyes, or massacred, and dragged about the streets before night.
At all adventures, I should think it more wise to bear with a tyrannical parliament, though a more expensive mode of servitude for the present, than an arbitrary prince. So long as there is a power that can nominally put a negative upon the proceedings of the court, there is some chance, that circumstances may arise, in which the prince may not be able to influence them. They may see the necessity, if not the wisdom of complying with the just desires of the people and by passing a few fundamentally good laws, true freedom may be established for ages; whereas, were the old forms of constitutional liberty once abolished, as in France, there would be little hope of their revival.
Whenever the house of Commons shall be so abandonedly corrupt, as to join with the court in abolishing any of the essential forms of the constution, or effectually defeating the great purposes of it, let every Englishman, before it be too late, re-peruse the history of his country, and do what Englishmen are renowned for having formerly done in the same circumstances.
Where civil liberty is intirely divested of its natural guard, political liberty, I should not hesitate to prefer the government of one, to that of a number; because a sense of shame would have less influence upon them, and they would keep one another in countenance, in cases in which any single person would yield to the sense of the majority.
Political and civil liberty have many things in common, which indeed, is the reason why they have been so often confounded. A sense both of political and civil slavery, makes a man think meanly of himself. The feeling of his insignificance debases his mind, checks every great and enterprising sentiment; and, in fact, renders him that poor abject creature, which he fancies himself to be. Having always some unknown evil to fear, though it should never come, he has no perfect enjoyment of himself, or of any of the blessings of life; and thus, his sentiments and his enjoyments being of a lower kind, the man sinks nearer to the state of the brute creation.
On the other hand, a sense of political and civil liberty, though there should be no great occasion to exert it in the course of a man's life, gives him a constant feeling of his own power and importance; and is the foundation of his indulging a free, bold, and manly turn of thinking, unrestrained by the most distant idea of control. Being free from all fear, he has the most perfect enjoyment of himself, and of all the blessings of life; and his sentiments and enjoyments, being raised, his very being is exalted, and the man makes nearer approaches to superior natures.
Without a spirit of liberty, and a feeling of security and independence, no great improvements in agriculture, or any thing else, will ever be made by men. A man has but poor encouragement to bestow labour and expence upon a piece of ground, in which he has no secure property; and when neither himself, nor his posterity, will, probably, ever derive any permanent advantage from it. In confirmation of this, I cannot help quoting a few instructive passages from Mr. Du Poivre's Travels of a Philosopher.
It is his general observation, that "a country poorly cultivated is always inhabited by men barbarous, or oppressed." p. 5.
"In a terrestrial paradise, the Siamese are, perhaps, the most wretched people in the world. The government is despotic. The sovereign alone enjoys the true liberty which is natural to all mankind. His subjects are all slaves. Every one of them is annually taxed at six months personal service, without wages, and even without food. p. 56.
On the other hand, "The Chinese enjoy, undisturbed, their private possessions, as well as those which, being by their nature indivisible, belong to all; and he who buys a field, or receives it by inheritance from his ancestors, is of course the sole lord or master. The lands are free as the people, without feudal services, or fines of alienation. A tenth part of the produce of the earth is the only tax, or tribute, in the Chinese empire, since the origin of the monarchy. And such is the happy respect which the Chinese have for their antient customs, that no emperor of China ever entertains the most distant thought of augmenting it, nor his subjects the least apprehension of such augmentation." p. 78.
In arbitrary governments the poor are certainly the most safe, as their condition exhibits nothing that can attract the notice, or tempt the violence of a tyrant. If, therefore, a man aspire to nothing more than to get his bread by the labour of his hands, in some customary employment, he has little to fear, let him live where he will. Like the ass in the fable, he can but bear his burden. No governments can do without labourers and artisans. It is their interest to protect them, and especially those who are dexterous in the more elegant arts, that are subservient to luxury.
But the poorest can hardly be without some degree of ambition, except when that generous principle has been long repressed, and in a manner eradicated by a continual habit of slavery; and the moment that a man thinks of rendering himself in any respect conspicuous, for his wealth, knowledge, or influence of any kind, he begins to be in danger. If he have but a very handsome wife, he must not live near a despotic court, or in the neighbourhood of any great man who is countenanced by it. If he have wealth, he must hide it, and enjoy it in secret, with fear and trembling; and if he have sense, and think differently from his neighbours, he must do the same, or risque the fate of Galileo.
I shall close this section with a few extracts from travellers, and other writers, which shew the importance of political and civil liberty.
"In travelling through Germany," says Lady M. W. Montague, "it is impossible not to observe the difference between the free towns, and those under the government of absolute princes, as all the little sovereigns of Germany are. In the first there appears an air of commerce and plenty, the streets are well built, and full of people, the shops are loaded with merchandize, and the commonalty are clean and chearful. In the other, you see a sort of shabby finery, a number of people of quality tawdried out, narrow nasty streets, out of repair, wretchedly thin of inhabitants, and above half of the common people asking alms." Lady M. W. Montague's Letters, vol. I. page 16.
"Every house in Turkey," the same excellent writer observes, "at the death of its master, is at the grand seignior's disposal; and therefore no man cares to make a great expence, which he is not sure his family will be the better for. All their design is to build a house commodious, and that will last their lives, and they are very indifferent if it falls down the next year." Ib. p. 70.
"The fear of the laws," says the admirable author of the Essay on crimes and punishments, "is salutary, but the fear of man is a fruitful and fatal source of crimes. Men enslaved are more voluptuous, more debauched, and more cruel than those who are in a state of freedom. These study the sciences, and the interests of nations. They have great objects before their eyes, and imitate them. But those whose views are confined to the present moment, endeavour, amidst the distraction of riot and debauchery, to forget their situation. Accustomed to the uncertainty of all events, the consequences of their crimes become problematical; which gives an additional force to the strength of their passions." P. 166.
"The Turkish Bashaw once destroyed all the sugar canes in Cyprus, to prevent the people having too much wealth. This island is to this day the clearest proof that can be given, how much a bad government may defeat all the kind intentions of nature: for, in spite of all the advantages a country can possibly have, there never was a more desolate place than this island is at this day." Thevenot in Knox's collection, vol, 6, p. 71.
There is hardly any greater instance of the wanton abuse of power, in the invasion of the natural rights of mankind, than in the game laws, that are in force in different states of Europe. England has just and great complaint to make on this subject; but we are not yet reduced to the deplorable condition of the Saxons, as it is described by Hanway, vol. 1. p. 433.
"Hunting is the ruling passion of the Saxon court, and fatal to the inhabitants. In the hard winter of 1740, it is computed, that above 30,000 deer died in the electorate of Saxony; and yet, in the open lands and forests, there are now reckoned to remain above that number, of which no person dares kill one, under the penalty of being condemned to the gallies. In every town of any note, there are fifty of the inhabitants, who watch, five every night, by rotation, and use bells to frighten the deer, and defend their corn. Frequent remonstrances have been made to the court on this subject; but to no other purpose, than to convince the people of their slavery."
Felix quem faciunt, aliena pericula cautum.