SUPPOSE an ufurper, after having banished his lawful prince and royal family, fhould establish his dominion for ten or a dozen years in any country, and fhould preferve fuch exact difcipline in his troops, and fo regular a difpofition in his garrifons, that no infurrection had ever been raised, or even murmur heard, against his adminiftration: Can it be afferted, that the people, who in their hearts abhor his treafon, have tacitly confented to his authority, and promifed him allegiance, merely becaufe, from neceffity, they live under his dominion? Suppofe again their natural prince reftored, by means of an army, which he affembles in foreign countries: They receive him with joy and exultation, and fhew plainly with what reluctance they had fubmitted to any other yoke. I may now afk,_ upon what foundation the prince's title ftands? Not on popular confent furely: For tho' the people willingly acquiefce in his authority, they never imagine, that their confent makes him fovereign. They confent; because they apprehend him to be already, by birth, their lawful fovereign. And as to that tacit confent, which may now be inferred from their living under his dominion, this is no more than what they formerly gave to the tyrant and ufurper.

WHEN we affert, that all lawful government arifes from the people, we certainly do them a great deal more honor than they deserve, or even expect and defire from us. After the ROMAN dominions became too unweildy for the republic to govern, the people, over the whole known world, were extremely grateful to AUGUSTUS for that authority, which, by violence, he established over them; and they fhewed an equal difpofition to fubmit to the fucceffor, whom he left them, by his laft will and teftament. It was afterwards their misfortune, that there never was, in one family, any long regular fucceffion; but that their line of princes was continually broke, either by private affaffinations or public rebellions. The prætorian bands, on the failure of every family, fet up one emperor; the legions in the East a fecond; thofe in GERMANY, perhaps, a third: And the fword alone could decide the controverfy. The condition of the people, in that mighty monarchy, was to be lamented, not because the choice of the emperor was never left to them; for that was impracticable: But because they never fell under any fucceffion of mafters, who might regularly follow each other. As to the violence and wars and bloodshed, occafioned by every new fettlement; those were not blameable, because they were inevitable.

THE houfe of LANCASTER ruled in this ifland about fixty years; yet the partizans of the white rose feemed daily to multiply in ENGLAAD. The prefent establishment has taken place during a ftill longer period. Have all views of right in another family been utterly extinguished; even tho' fcarce any man now alive had arrived at years of difcretion, when it was expelled, or could have confented to its dominion, or have promised it allegiance? A fufficient indication furely of the general fentiment of mankind on this head. For we blame not the partizans of the abdicated family, merely on account of the long time, during which they have preferved their imaginary fidelity. We blame them for adhering to a family, which, we affirm, has been juftly expelled, and which, from the moment the new fettlement took place, had forfeited all title to authority.

BUT would we have a more regular, at leaft, a more philofophical refutation of this principle of an original contract or, popular confent; perhaps, the following obfervations may fuffice.

ALL

ALL moral duties may be divided into two kinds. The first are thofe, to which men are impelled by a natural inftinct or immediate propenfity, which operates in them, independent of all ideas of obligation, and of all views, either to public or private utility. Of this nature are, love of children, gratitude to benefactors, pity to the unfortunate. When we reflect on the advantage, which refults to fociety from fuch humane inftincts, we pay them the juft tribute of moral approbation and esteem: But the perfon, actuated by them, feels their power and influence, antecedent to any fuch reflection.

THE fecond kind of moral duties are fuch as are not fupported by any original inftinct of nature, but are performed entirely from a fenfe of obligation, when we confider the neceffities of human fociety, and the impoffibility of fupporting it, if thefe duties were neglected. 'Tis thus juftice or a regard to the property of others, fidelity or the obfervance of promifes, become obligatory, and acquire an authority over mankind. For as 'tis evident, that every man loves himself better than any other perfon, he is naturally impelled to extend his acquifitions as much as poffible; and nothing can restrain him in this propenfity, but reflection and experience, by which he learns the pernicious effects of that licence, and the total diffolution of fociety, which muft enfue from it. His original inclination, therefore, or inftinct, is here checked and reftrained by a fubfequent judgment or obfervation.

THE cafe is precifely the fame with the political or civil duty of allegiance, as with the natural duties of juftice and fidelity. Our primary inftincts lead us, either to indulge ourfelves in unlimited liberty, or to feek dominion over others: And 'tis reflection only, which engages us to facrifice fuch ftrong paffions to the interests of peace and order. A very small degree of experience and obfervation fuffices to teach us, that fociety cannot poffibly be maintained without the authority of magiftrates, and that this authority muft foon fall into contempt, where exact obedience is not payed to it. The obfervation of thefe general and obvious interefts is the fource of all allegiance, and of that moral obligation, which we attribute to it.

WHAT neceffity, therefore, is there to found the duty of allegiance or obedience to magiftrates on that of fidelity or a regard to promifes, and to fuppofe, that 'tis the confent of each individual, which fubjects him to government; when it appears, that both allegiance and fidelity ftand precifely on the fame foundation, and are both fubmitted to by mankind, on account of the apparent interefts and neceffities of human fociety? We are bound to obey our fovereign, 'tis faid; because we have given a tacit promife to that purpose. But why are we bound to obferve our promife? It must here be afferted, that the commerce and intercourse of mankind, which are of fuch mighty advantage, can have no fecurity where men pay no regard to their engagements. In like manner, may it be faid, that men could not live at all in fociety, at leaft in a civilized fociety, without laws and magistrates and judges, to prevent the encroachments of the ftrong upon the weak, of the violent upon the juft and equitable. The obligation to allegiance, being of like force and authority with the obligation to fidelity, we gain nothing by refolving the one into the other. The general interefts or neceffities of fociety are fufficient to establish both.

If the reason is afked of that obedience, which we are bound to pay to government, I readily answer: because fociety could not otherwife fubfift: And this anfwer is clear and intelligible to all mankind. Your anfwer is, because we should keep our word. But befides, that no body, till trained in a philosophical system, can either comprehend or relifh this answer: Befides this, I fay, you find yourself embarraffed, when 'tis afked, why we are bound to keep our word? And you can give no other answer, but what would, immediately, without any circuit, have accounted for our obligation to allegiance.

BUT to whom is allegiance due? And who are our lawful fovereigns? This queftion is often the most difficult of any, and liable to infinite difcuffions. When people are so happy, that they can answer, Our present sovereign, who inherits, in a direct line, from ancestors, that have governed us for many ages; this answer admits of no reply; even tho' hiftorians, in tracing up to the remoteft antiquity the origin of that royal family, may find, as commonly happens, that its first authority was derived from ufurpation and violence. 'Tis confeft, that private juftice or the abftinence from the properties of others, is a moft cardinal virtue : Yet reafon tells us, that there is no property in durable objects, fuch as lands or houses, when carefully examined in paffing from hand to hand, but muft, in fome period, have been founded on fraud and injuftice. The neceffities of human fociety, neither in private nor public life, will allow of fuch an accurate enquiry: And there is no virtue or moral duty, but what may, with facility, be refined away, if we indulge a falfe philofophy, in fifting and fcrutinizing it, by every captious rule of logic, in every light or pofition, in which it may be placed.

THE queftions with regard to private property have filled infinite volumes of law and philosophy, if in both we add the commentators to the original text; and in the end, we may fafely pronounce, that many of the rules, there established, are uncertain, ambiguous, and arbitrary. The like opinion may be formed with regard to the fucceffions and rights of princes and forms of government. Many cases, no doubt, occur, especially in the infancy of any government, which admit of no determination from the laws of juftice and equity: And our hiftorian, RAPIN, allows, that the controversy between EDWARD the third and PHILIP de VALOIS was of this nature, and could be decided only by an appeal to heaven, that is, by war and violence.

WHO shall tell me, whether GERMANICUS or DRUSUS ought to have fucceeded TIBERIUS, had he died, while they were both alive, without naming any of them for his fucceffor? Ought the right of adoption to be received as equivalent to that of blood, in a nation, where it had the fame effect in private families, and had already, in two inftances, taken place in the public? Ought GERMANICUS to be esteemed the eldest fon, because he was born before DRUSUS; or the younger, because he was adopted after the birth of his brother? Ought the right of the elder to be regarded in a nation, where the eldest brother had no advantage in the fucceffion of private families? Ought the ROMAN empire, at that time, to be esteemed hereditary, because of two examples; or ought it, even fo early, to be regarded as belonging to the ftranger or the prefent poffeffor, as being founded on fo recent an ufurpation?

COMMODUS mounted the throne after a pretty long fucceffion of excellent emperors, who had acquired their title, not by birth, or public election, but by the fictitious

3

fictitious rite of adoption. That bloody debauchee being murdered by a confpiracy fuddenly formed betwixt his wench and her gallant, who happened at that time to be Prætorian Præfect, or to have the command of the guards; thefe immediately deliberated about choosing a mafter to human kind, to speak in the style of thofe ages; and caft their eyes on PERTINAX. Before the tyrant's death was known, the Præfect went fecretly to that fenator, who, on the appearance of the foldiers, imagined that his execution had been ordered by COMMODUS. He was immediately faluted emperor by the officer and his attendants; chearfully proclaimed by the populace; unwillingly fubmitted to by the guards; formally recognized by the fenate; and paffively received by the provinces and armies of the empire.

THE difcontent of the Prætorian bands foon broke out in a fudden sedition,, which occafioned the murther of that excellent prince: And the world being now without a master and without government, the guards thought proper to fet the empire formally to fale. JULIAN, the purchafer, was proclaimed by the foldiers, recognized by the fenate, and fubmitted to by the people, and muft, also have been fubmitted to by the provinces, had not the envy of the legions begot oppofition and refiftance. PESCENNIUS NIGER in SYRIA. elected himself emperor, gained the tumultuary confent of his army, and was attended with the fecret good-will of the fenate and people of ROME. ALBINUS in BRITAIN found an equal right to set up his claim; but SEVERUS, who governed PANNONIA, prevailed in the end above both of them. That able politician and warrior, finding his own birth and dignity too much inferior to the imperial: crown, profeft at first, an intention only of revenging the death of PERTINAX. He marched as general into ITALY, defeated JULIAN; and without our being able to fix any precife commencement even of the foldiers confent, he was from necef-fity acknowleged emperor by the fenate and people; and fully established in his violent authority by fubduing NIGER and ALBINUS .

Inter bac Gordianus CASAR (fays CAPITOLINUS, fpeaking of another period)) fublatus a militibus, Imperator eft appellatus, quia non erat alius in præfenti. 'Tis to be remarked that GORDIAN was a boy of fourteen years of age.

FREQUENT inftances of a like nature occur in the history of the emperors; in that of ALEXANDER's fucceffors; and of many other countries: Nor can any thing be more unhappy than a defpotic government of that kind; where the fucceffion is disjointed and irregular, and must be determined, on every occafion, by force or election. In a free government, the matter is often unavoidable, and is. also much less dangerous. The interefts of liberty may there frequently lead the people, in their own defence, to alter the fucceffion of the crown. And the conftitution, being compounded of parts, may ftill maintain a fufficient stability, by refting on the ariftocratical or democratical members, tho' the monarchical be al-tered, from time to time, in order to accommodate it to the former.

In an abfolute government, when there is no legal prince, who has a title to the throne, it may fafely be determined to belong to the first occupier.. Inftances of this kind are but too frequent, efpecially in the eastern monarchies. When any race of princes expires, the will or deftination of the last fovereign will be regarded as a title. Thus the edict of LEWIS the XIVth, who called the ba stard

HERODIAN, Lib. 2.

ftard prince to the fucceffion in cafe of the failure of all the legitimate princes, would, in fuch an event, have fome authority. Thus the will of CHARLES the fecond difpofed of the whole SPANISH monarchy. The ceffion of the antient proprietor, especially when joined to conqueft, is likewise esteemed a very good title. The general bond or obligation, which binds us to government, is the interest and neceffities of fociety; and this obligation is very strong. The determination of it to this or that particular prince or form of government is frequently more uncertain and dubious. Prefent poffeffion has confiderable authority in these cases, and greater than in private property; because of the diforders, which attend all revolutions and changes of government ‘.

WE fhall only obferve, before we conclude, that tho' an appeal to general opinion may juftly, in the fpeculative fciences of metaphyfics, natural philofophy, or aftronomy, be esteemed unfair and inconclufive, yet in all queftions with regard to morals, as well as criticifm, there is really no other ftandard, by which any controverfy can ever be decided. And nothing is a clearer proof, that a theory of this kind is erroneous, than to find, that it leads to paradoxes, which are repugnant to the common fentiments of mankind, and to the practice and opinion of all nations and all ages. The doctrine, which founds all lawful government on an original contract, or confent of the people, is plainly of this kind; nor has the ablest of its partizans, in profecution of it, fcrupled to affirm, that abfolute monarchy is inconfiftent with civil fociety, and fo can be no form of civil government at all; and that the fupreme power in a state cannot take from any man by taxes and impofitions, any part of his property, without his own confent or that of his reprefentatives. What authority any moral reasoning can have, which leads into opinions, fo wide of the general practice of mankind, in every place but this fingle kingdom, 'tis easy to determine *.

'Tis remarkable, that in the remonstrance of the duke of BOURBON and the legitimate princes, against this deftination of Louis the XIVth, the doctrine of the original contract is infisted on, even in that abfolute government. The FRENCH nation, fay they, choofing HUGH CAPET and hist - potterity to rule over them and their pofterity, where the former line fails, there is a tacit right referved to choose a new royal family; and this right is invaded by calling the baftard princes to the throne, without the confent of the nation. But the Comte de BoU LAINVILLIERS, who wrote in defence of the baftard princes, ridicules this notion of an original contract, especially when applied to HUGH CAPET; who mounted the throne, fays he, by the fame arts, which have ever been employed by all conquerors and ufurpers. He got his title, indeed, recognized by the ftates after he had put himself in poffeffion: But is this a choice or contract? The Comte de BOULAINVILLIERS, we may obferve, was a noted republican; but being a than of learning, and very converfant in hiftory,

he knew the people were never almoft confulted in thefe revolutions and new establishments, and that time alone bestowed right and authority on what was commonly at first founded on force and violence. See Etat de la FRANCE. Vol. III.

d The crime of rebellion, amongst the antients was commonly marked by the terms WTERIZEI, novas res moliri.

* See LOCKE on government, chap. 7. §. 90. f Id. Chap. 11. §. 138, 139, 140.

The only paffage I meet with in antiquity, where the obligation of obedience to government is afcribed to a promise is in PLATO in Critone; where SOCRATES refufes to escape from prifon, because he had tacitly promifed to obey the laws. Thus he builds a tory confequence of palive obedience, on a whig foundation of the original contract.

New difcoveries are not to be expected in thefe matters. If no man, till very lately, ever imagined that government was founded on contract, 'tis certain it cannot, in general, have any fuch foundation.

ESSAY