A Treatise of Human Nature

by David Hume

This leads us to consider the fifth source of authority, viz. positive laws; when the legislature establishes a certain form of government and succession of princes. At first sight it may be thought, that this must resolve into some of the preceding titles of authority. The legislative power, whence the positive law is derived, must either be established by original contract, long possession, present possession, conquest, or succession; and consequently the positive law must derive its force from some of those principles. But here it is remarkable, that though a positive law can only derive its force from these principles, yet it acquires not all the force of the principle from whence it is derived, but loses considerably in the transition; as it is natural to imagine. For instance; a government is established for many centuries on a certain system of laws, forms, and methods of succession. The legislative power, established by this long succession, changes all on a sudden the whole system of government, and introduces a new constitution in its stead. I believe few of the subjects will think themselves bound to comply with this alteration, unless it have an evident tendency to the public good: But men think themselves still at liberty to return to the antient government. Hence the notion of fundamental laws; which are supposed to be inalterable by the will of the sovereign: And of this nature the Salic law is understood to be in France. How far these fundamental laws extend is not determined in any government; nor is it possible it ever should. There is such an indefensible gradation from the most material laws to the most trivial, and from the most ancient laws to the most modern, that it will be impossible to set bounds to the legislative power, and determine how far it may innovate in the principles of government. That is the work more of imagination and passion than of reason.

Whoever considers the history of the several nations of the world; their revolutions, conquests, increase, and diminution; the manner in which their particular governments are established, and the successive right transmitted from one person to another, will soon learn to treat very lightly all disputes concerning the rights of princes, and will be convinced, that a strict adherence to any general rules, and the rigid loyalty to particular persons and families, on which some people set so high a value, are virtues that hold less of reason, than of bigotry and superstition. In this particular, the study of history confirms the reasonings of true philosophy; which, shewing us the original qualities of human nature, teaches us to regard the controversies in politics as incapable of any decision in most cases, and as entirely subordinate to the interests of peace and liberty. Where the public good does not evidently demand a change; it is certain, that the concurrence of all those titles, original contract, long possession, present possession, succession, and positive laws, forms the strongest title to sovereignty, and is justly regarded as sacred and inviolable. But when these titles are mingled and opposed in different degrees, they often occasion perplexity; and are less capable of solution from the arguments of lawyers and philosophers, than from the swords of the soldiery. Who shall tell me, for instance, whether Germanicus, or Drufus, ought to have succeeded Tiberius, had he died while they were both alive, without naming any of them for his successor? Ought the right of adoption to be received as equivalent to that of blood in a nation, where it had the same effect in private families, and had already, in two instances, taken place in the public? Ought Germanicus to be esteemed the eldest son, because he was born before Drufus; 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 succession to private families? Ought the Roman empire at that time to be esteemed hereditary, because of two examples; or ought it, even so early, to be regarded as belonging to the stronger, or the present possessor, as being founded on so recent an usurpation? Upon whatever principles we may pretend to answer these and such like questions, I am afraid we shall never be able to satisfy an impartial enquirer, who adopts no party in political controversies, and will be satisfied with nothing but sound reason and philosophy.

But here an English reader will be apt to enquire concerning that famous revolution, which has had such a happy influence on our constitution, and has been attended with such mighty consequences. We have already remarked, that in the case of enormous tyranny and oppression, it is lawful to take arms even against supreme power; and that as government is a mere human invention for mutual advantage and security, it no longer imposes any obligation, either natural or moral, when once it ceases to have that tendency. But though this general principle be authorized by common sense, and the practice of all ages, it is certainly impossible for the laws, or even for philosophy, to establish any particular rules, by which we may know when resistance is lawful; and decide all controversies, which may arise on that subject. This may not only happen with regard to supreme power; but it is possible, even in some constitutions, where the legislative authority is not lodged in one person, that there may be a magistrate so eminent and powerful, as to oblige the laws to keep silence in this particular. Nor would this silence be an effect only of their respect, but also of their prudence; since it is certain, that in the vast variety of circumstances, which occur in all governments, an exercise of power, in so great a magistrate, may at one time be beneficial to the public, which at another time would be pernicious and tyrannical. But notwithstanding this silence of the laws in limited monarchies, it is certain, that the people still retain the right of resistance; since it is impossible, even in the most despotic governments, to deprive them of it. The same necessity of self-preservation, and the same motive of public good, give them the same liberty in the one case as in the other. And we may farther observe, that in such mixed governments, the cases, wherein resistance is lawful, must occur much oftener, and greater indulgence be given to the subjects to defend themselves by force of arms, than in arbitrary governments. Not only where the chief magistrate enters into measures, in themselves, extremely pernicious to the public, but even when he would encroach on the other parts of the constitution, and extend his power beyond the legal bounds, it is allowable to resist and dethrone him; though such resistance and violence may, in the general tenor of the laws, be deemed unlawful and rebellious. For besides that nothing is more essential to public interest, than the preservation of public liberty; it is evident, that if such a mixed government be once supposed to be established, every part or member of the constitution must have a right of self-defence, and of maintaining its ancient bounds against the encroachment of every other authority. As matter would have been created in vain, were it deprived of a power of resistance, without which no part of it could preserve a distinct existence, and the whole might be crowded up into a single point: So it is a gross absurdity to suppose, in any government, a right without a remedy, or allow, that the supreme power is shared with the people, without allowing, that it is lawful for them to defend their share against every invader. Those, therefore, who would seem to respect our free government, and yet deny the right of resistance, have renounced all pretensions to common sense, and do not merit a serious answer.

It does not belong to my present purpose to shew, that these general principles are applicable to the late revolution; and that all the rights and privileges, which ought to be sacred to a free nation, were at that time threatened with the utmost danger. I am better pleased to leave this controverted subject, if it really admits of controversy; and to indulge myself in some philosophical reflections, which naturally arise from that important event.

First, We may observe, that should the lords and commons in our constitution, without any reason from public interest, either depose the king in being, or after his death exclude the prince, who, by laws and settled custom, ought to succeed, no one would esteem their proceedings legal, or think themselves bound to comply with them. But should the king, by his unjust practices, or his attempts for a tyrannical and despotic power, justly forfeit his legal, it then not only becomes morally lawful and suitable to the nature of political society to dethrone him; but what is more, we are apt likewise to think, that the remaining members of the constitution acquire a right of excluding his next heir, and of chusing whom they please for his successor. This is founded on a very singular quality of our thought and imagination. When a king forfeits his authority, his heir ought naturally to remain in the same situation, as if the king were removed by death; unless by mixing himself in the tyranny, he forfeit it for himself. But though this may seem reasonable, we easily comply with the contrary opinion. The deposition of a king, in such a government as ours, is certainly an act beyond all common authority, and an illegal assuming a power for public good, which, in the ordinary course of government, can belong to no member of the constitution. When the public good is so great and so evident as to justify the action, the commendable use of this licence causes us naturally to attribute to the parliament a right of using farther licences; and the antient bounds of the laws being once transgressed with approbation, we are not apt to be so strict in confining ourselves precisely within their limits. The mind naturally runs on with any train of action, which it has begun; nor do we commonly make any scruple concerning our duty, after the first action of any kind, which we perform. Thus at the revolution, no one who thought the deposition of the father justifiable, esteemed themselves to be confined to his infant son; though had that unhappy monarch died innocent at that time, and had his son, by any accident, been conveyed beyond seas, there is no doubt but a regency would have been appointed till he should come to age, and could be restored to his dominions. As the slightest properties of the imagination have an effect on the judgments of the people, it shews the wisdom of the laws and of the parliament to take advantage of such properties, and to chuse the magistrates either in or out of a line, according as the vulgar will most naturally attribute authority and right to them.

Secondly, Though the accession of the Prince of Orange to the throne might at first give occasion to many disputes, and his title be contested, it ought not now to appear doubtful, but must have acquired a sufficient authority from those three princes, who have succeeded him upon the same title. Nothing is more usual, though nothing may, at first sight, appear more unreasonable, than this way of thinking. Princes often seem to acquire a right from their successors, as well as from their ancestors; and a king, who during his life-time might justly be deemed an usurper, will be regarded by posterity as a lawful prince, because he has had the good fortune to settle his family on the throne, and entirely change the antient form of government. Julius Caesar is regarded as the first Roman emperor; while Sylla and Marius, whose titles were really the same as his, are treated as tyrants and usurpers. Time and custom give authority to all forms of government, and all successions of princes; and that power, which at first was founded only on injustice and violence, becomes in time legal and obligatory. Nor does the mind rest there; but returning back upon its footsteps, transfers to their predecessors and ancestors that right, which it naturally ascribes to the posterity, as being related together, and united in the imagination. The present king of France makes Hugh Capet a more lawful prince than Cromwell; as the established liberty of the Dutch is no inconsiderable apology for their obstinate resistance to Philip the second.

SECT. XI OF THE LAWS OF NATIONS

When civil government has been established over the greatest part of mankind, and different societies have been formed contiguous to each other, there arises a new set of duties among the neighbouring states, suitable to the nature of that commerce, which they carry on with each other. Political writers tell us, that in every kind of intercourse, a body politic is to be considered as one person; and indeed this assertion is so far just, that different nations, as well as private persons, require mutual assistance; at the same time that their selfishness and ambition are perpetual sources of war and discord. But though nations in this particular resemble individuals, yet as they are very different in other respects, no wonder they regulate themselves by different maxims, and give rise to a new set of rules, which we call the laws of nations. Under this head we may comprize the sacredness of the persons of ambassadors, the declaration of war, the abstaining from poisoned arms, with other duties of that kind, which are evidently calculated for the commerce, that is peculiar to different societies.

But though these rules be super-added to the laws of nature, the former do not entirely abolish the latter; and one may safely affirm, that the three fundamental rules of justice, the stability of possession, its transference by consent, and the performance of promises, are duties of princes, as well as of subjects. The same interest produces the same effect in both cases. Where possession has no stability, there must be perpetual war. Where property is not transferred by consent, there can be no commerce. Where promises are not observed, there can be no leagues nor alliances. The advantages, therefore, of peace, commerce, and mutual succour, make us extend to different kingdoms the same notions of justice, which take place among individuals.

There is a maxim very current in the world, which few politicians are willing to avow, but which has been authorized by the practice of all ages, that there is a system of morals calculated for princes, much more free than that which ought to govern private persons. It is evident this is not to be understood of the lesser extent of public duties and obligations; nor will any one be so extravagant as to assert, that the most solemn treaties ought to have no force among princes. For as princes do actually form treaties among themselves, they must propose some advantage from the execution of them; and the prospect of such advantage for the future must engage them to perform their part, and must establish that law of nature. The meaning, therefore, of this political maxim is, that though the morality of princes has the same extent, yet it has not the same force as that of private persons, and may lawfully be trangressed from a more trivial motive. However shocking such a proposition may appear to certain philosophers, it will be easy to defend it upon those principles, by which we have accounted for the origin of justice and equity.