Theologico-Political Treatise 1862/Chapter 16

far our aim has been to separate philosophy from theology, and to proclaim the title to free thought and free discourse which these alike concede to all. It is now time to inquire how far this liberty of opinion and of speech extends in a well-ordered state. To discuss this subject with due order and regularity we must inquire into the foundations on which a commonwealth reposes, and first of the natural rights of individuals, without present reference to general polity and religion.

By right and institution of nature I understand nothing more than the rules of nature prescribed to individual things, whereby each is determined to existence and action in a certain specific manner. For example, — fishes are determined by nature to live in water, and the great to devour the small. Fishes therefore possess the water by the highest natural right, and by the same do the great live on the small. For it is certain that nature, considered absolutely, has unlimited rights within the bounds of possibility; in other words, the right of nature is as extensive as its power. The power of nature, however, is only another phrase for the power of God, who has the first and highest right to all and over all. But as the power of nature at large is nothing more than the aggregate power of every individual thing in nature, it follows that each individual thing has the highest right to all it can compass or attain, and that the rights of individuals are coextensive with their power. And as it is the highest law of nature that every individual thing should seek to continue in the state appropriate to it, and this with reference to itself alone and to nothing else, it follows that every individual has the highest right to its state, i.e., as I have said, to be and to do as its natural constitution determines. Nor do we here recognize any difference between man and the rest of the beings of creation; nor between the man endowed with reason and the man who knows nothing of reason, nor between the sane in mind and the insane or fatuous. For whatsoever does anything acts by the laws of its nature or by the highest right, because acting as it is ordained to do by nature, and incapable of acting otherwise. Wherefore, among men, so long as they are considered to be living under the empire of nature alone, he who as yet knows nothing of reason, or who has not yet the habit of virtuous conduct, lives with perfect right by the laws of mere appetite, even as he lives by the laws of highest right who regulates his life in conformity with the dictates of reason. In other words, as the wise man has the highest right to all that wisdom commands, or to live according to the laws of reason, so the foolish or ignorant man has entire right to live according to the laws of appetite. And this is what the Apostle Paul teaches when he acknowledges no sin before the promulgation of the law; that is to say, so long as men lived under the empire of nature they were not living in sin.

The natural right of every man therefore is determined by appetite and power, not by sound reason. For all are not constituted by nature to act according to the rules of reason. On the contrary, all are born ignorant of everything; and before they can know the true rule of life, and acquire virtuous habits, a great part of their lives must already have passed. Meantime, nevertheless, they are held to live, and, as much as in them lies, to preserve their state of being. But this they must do by the sole impulses of appetite or desire; for nature gives nothing else as a guide to the natural man, not conferring the power of living by the rules of sound reason. Men are therefore no more bound to live by the rule of absolute right than is a domestic cat to live by the laws of a lion's nature.

Whatever any one, regarded as under the empire of nature only, deems useful to himself, therefore, whether led to do so by right reason or by an impulse of appetite, that he desires by a supreme law of nature, and it is lawful for him by force, by cunning, by entreaty — in short, in any and every way, to obtain possession thereof, and to hold as an enemy whoever opposes him in the satisfaction of his desire. From the above it follows that the law or institute of nature, under which all are born, and for the most part live, prohibits nothing but that which no one desires, and no one can desire; and that it does not absolutely gainsay dispute and difference, anger and hatred, stratagem and wile, nor indeed anything to which passion persuades. And this is not to be wondered at; for nature is not comprised within the narrow limits of the laws of reason, which are of service to man only and are meant for his sole guidance in conduct, but embraces an infinity of other matters which have respect to the eternal order of creation at large, in which man is a mere atom. By the necessity of nature, for instance, every individual thing is constituted to exist, and to act in a certain determined manner, so that whatever appears to us evil or absurd, does so because we know things partially only, and are ignorant of the order and concatenation of nature at large; and because we would direct all in conformity with. our reason, although that which our reason calls evil is not, evil as regards the order and rule of nature generally, but only as regards the law of our proper nature.

That it is advantageous for man to live according to the laws and special precepts of reason which, as has been said, are only intended to be useful to him, cannot be questioned. There is no one who does not desire to live in peace, in safety, and free from fear, which, however, were impossible so long as every one was permitted to do as he pleased, and so long as no greater authority was given to reason than to such passions as hatred and revenge; for no one can live amidst enmities, hatreds and wiles otherwise than anxiously; and there is no one who will not use his best endeavour to escape from their influence. Again, if we reflect that men -live very wretchedly who live without mutual aid, and, without the requisite culture of reason, as has been shown in Chapter V., we perceive most clearly that to live in comfort and security it is indispensable for men to combine together, and to agree that the right which each had from nature individually should be had collectively, — that each should cease to live for himself alone by force and appetite, but that everything should be determined by the will and consent of the community. This, however, would be attempted in vain if all only willed to follow the dictates of appetite (for by the laws of appetite every one is drawn his own several way); every one must be firmly resolved, and indeed be bound, to govern himself in all things by the dictates of reason alone (which no one ventures openly to gainsay, lest he appear to have lost his understanding), to restrain his appetites or affections when these persuade to aught hostile to the interests of others, and to do nothing to another which he would not have done to himself, and, lastly, to defend the rights of others as if they were his own.

Let us now inquire how this compact is to be arranged and entered on so as to be definite and enduring. For it is a general law of human nature that no one neglects what he esteems to be good unless in the hope of a greater good, or the fear of a greater evil; nor does any one brave an evil save to escape a greater evil, or in the view to achieve a greater good; that is to say, he elects what he thinks the preferable of two good things, or the least detrimental of two evils. I say expressly that the thing or course chosen appears more or less good or bad to the party electing, not that the thing or the course chosen is in itself either better or worse than that which is shunned. This law I hold to be so firmly fixed or impressed on the nature of man that it is to be placed among the eternal truths which no one can ignore. But from this it necessarily follows that no one can honestly promise to forego his natural rights, and that no one would keep such a promise if made, unless it were in the fear of some greater evil or the hope of some greater good. To make this point more clear, let it be supposed that a robber compels me to promise that I will surrender to him my property in a place which he chooses to name. Now, although my natural right is determined by my power alone, as I have already declared, it is certain that if I can escape from this robber by guile or stratagem, promising him everything he asks, it is lawful for me of my natural right to do so. Or, again, suppose that for no fraudulent purpose, but inconsiderately, I have promised some one to abstain from meat and drink for twenty days, and by and by I see that I have made a foolish promise, which I cannot keep at all, or could only keep with great detriment to myself, inasmuch as by natural right I may choose the less of two evils, I am at perfect liberty to break such a promise, and to hold my engagement as though it had never been made. This, I say, may be done by natural right, whether I see that I promised rashly and amiss on the ground of right reason or of mere opinion; for whether I see what I promise to be good or bad, right or wrong, as I greatly dread evil, I strive in every way by nature's ordinance to avoid it.

From these premises we conclude that a contract can have no force save by reason of its usefulness; this taken away, the contract is at the same time cancelled and made null and void. For this reason, too, is it in vain to attempt to bind parties in perpetuity, unless especial measures are taken to make a greater amount of damage than of advantage to follow from a breach of the compact to the party or parties contracting. And this consideration ought to weigh greatly in the institution of every state. If all indeed were led by reason, and knew the vast advantages, not to say the necessity, of a sound system of civil polity, there would be none who would not detest guile in every shape, none who would not strive with their whole might to preserve that highest blessing, a well-ordered state, in the assurance that they themselves would have their ample reward in peace and security of life. But men, alas! are very far from always yielding obedience to the dictates of reason; each is mostly governed by his desires only, and avarice, envy, vain-glory, hatred, &c., often engross the mind so entirely that there is no room left for reason to enter. Wherefore, although men are generally ready enough to promise fairly, and to plight their word for their good intentions, still no one can be sure of another's truth unless there be something added to the promise; inasmuch as every one by natural right may act deceitfully, and may not consider himself bound to stand by his engagements unless led to do so in the hope of a greater good or the fear of a worse evil. But, as we have already shown that natural right, in so far as the individual is concerned, is solely determined by the power which each severally possesses, it follows that so much of this power as he transfers to another, whether perforce or voluntarily, so much of his natural right does he necessarily cede to that other, and that he who possesses supreme power has also supreme right, which he may enforce by all the strength of the law. Now this power the government or chief magistrate will only retain so long as the means of enforcing what is willed is retained. In other words, a ruler holds his authority by a precarious tenure, and no one more powerful than himself will be bound, unless he so pleases, to obey him.

In this way, then, without the smallest infringement of natural right, may a state be instituted, and all agreements kept with the most perfect faith, that is to say, if each individual transfers the whole of the power he has of himself to the community of which he is a member, which then comes to possess supreme natural right in everything — in other words, the supreme authority which every individual, whether willingly or from fear, will then be bound to obey. A state or community thus constituted is called a democracy, which is then defined as a general assembly of men, holding collectively the highest right to all which each possessed individually. Wherefore it follows that the supreme authority itself is bound by no law, whilst all are bound to obey it in whatsoever it ordains; for to this, whether tacitly or expressly, must all consider themselves pledged when they have transferred their common natural right to a collective supreme power. Should the individual members of a democracy therefore desire severally to preserve any particular right to themselves, they must take especial care that they also preserve the power to defend it; for if they have not taken measures of precaution of this kind, and a stand cannot be made upon the right in question, without a division being created in the state, and it may be without its existence being imperilled, then have they subjected themselves unconditionally to the ruling authority, and they have nothing for it but obedience. And this being so, and when reason and necessity alike enforce submission, it follows that unless we would be accounted enemies of the commonwealth, and set ourselves against reason, which is persuading with all its might to the support of the supreme authority, we are bound to obey the commands of the highest power, although to us they may appear absurd; for reason also bids us in a strait to choose the less of two evils. Add to this, that the danger of having to submit unconditionally to the will and authority of another is then very imminent; for we have seen that ruling powers have the right to command whatever they please, so long as they possess the power to enforce their commands, or are, in fact, the head of the state; for if they once lose their power of compelling obedience, they at the same time lose their power of commanding, which then falls to those who have been strong enough to acquire it. It only happens very rarely therefore that the highest powers in a state exert their authority very absurdly; for it is especially incumbent on them, on the mere ground of self-interest, and that they may retain possession of power, to consult the common good, and order all things by the dictates of discretion and right reason. No one, as Seneca says, rules long who rules by violence. And then, absurdities are less to be apprehended in a democracy; for it is next to impossible that the majority of an assembly, especially if it be numerous, should yield to one foolish person, or agree to any foolish or pernicious thing. Besides, as the very basis and aim of a policied state are escape from the empire of brute passions, and the restraint of mankind within the bounds of reason and propriety, in order that they may live together in peace and harmony — I say, if the foundation be disturbed, the whole superstructure necessarily falls. The duty of the supreme power or government, therefore, is to provide for these things, and the duty of subjects is to obey, to execute the commands of the chief authority, and to acknowledge as law and right that only which this declares to be so.

In speaking thus, however, some may suppose that I am turning subjects into slaves; for they may think that he is a slave who only moves at the command of another, as he is a freeman who lives and acts of his own free will. But this is not absolutely so; for he who is mastered by his appetites, and who can neither comprehend nor do what is truly for his good, is the greatest slave of all; as he is the true freeman who lives in all things conformably to reason. Action by command, in another word, obedience, does not therefore imply the abrogation of liberty in every sense, and he who obeys is not necessarily a slave. It is the motive or purpose of the action that constitutes him bond or free: if the end of the action be for the behoof of the party commanding, not of the agent, then is the agent a slave and useless to himself; but where the advantage of the community at large, and not of the ruler, is the aim, as it is in a republic or constitutional state, then is he who obeys no slave, but subject only to the laws of his country, as that commonwealth is the freest whose laws are founded in the highest right and reason. In such a state every one who so wills may be truly free, for there may he live in conformity with the dictates of reason. In the same way are children not to be accounted slaves though they be held bound to obey the commands of their parents; for the commands of parents are presumed to have an especial bearing on the advantage of their children. We therefore recognize a great difference between slave, son, and subject, words which may be severally thus defined: slave, one who is held to obey the commands of a master, these commands having reference only to the advantage of the party commanding; a son does what is advantageous to himself on the command of his parent; a subject, lastly, does what is useful to the community, and therefore to himself, by obeying the commands of the supreme power in the state.

Thus briefly do I present the foundations of democratic authority, of which I desired to treat in particular, both because it seems to me the most natural form of government, and to accord best with the liberty which every individual has by nature. In a democracy no one transfers his natural rights to another in such wise that he shall never be consulted on any matter of public interest, but to the majority of the community whereof he is a member. And for this reason, all in the democratic form of civil polity, as in the natural state, remain equal. Again, I was anxious to treat of this form of government expressly, because it assists me most in my purpose of showing the advantages which accrue from liberty in a commonwealth. I shall therefore pass by the several other forms of government without notice; nor, indeed, is it requisite that we should particularly consider these, their origin, institution, &c., such matters following from what is special in each taken in connection with what has just been said of democracy. As a general thesis the question may be put thus: whosoever possesses the supreme power, whether one, a limited number, or all, has the right to command whatever he wills. Moreover, he who, whether voluntarily or upon compulsion, transfers to another his right of self-defence, abandons to this other his natural title to independent action, and thereby becomes bound to obey him in all things, so long as he — king, council, parliament, people — keeps possession of the supreme authority, which was the foundation of the right of transference. On this subject I do not think it necessary to say more.

Having now shown the foundation and the right of the supreme power in a policied state, it will be easy to ascertain wherein private right consists, what constitutes a wrong, what is the meaning of justice and injustice in civil affairs, to determine who is a confederate or ally, who an enemy, and, lastly, to show wherein the crime of treason consists.

By Private Civil Right we can understand nothing but the liberty enjoyed by every one to maintain himself in his estate and condition, a liberty which is guaranteed by decrees of the supreme power in the state, and is defended by its authority alone; for, having transferred his right to live according to his own will and pleasure to another, in other words, the right and power of self-defence which he originally possessed, he is held bound to live by the rule prescribed to him by this other, and to defend himself under his guidance.

Wrong is done when a citizen or subject suffers an injury in person or estate from another, contrary to his civil rights or the decree of the supreme authority. Wrong cannot be conceived, save in a social sense state; it cannot properly occur as between the supreme authority and a subject, everything being lawful to the ruling power, but only between private persons, who are held bound by law not to injure one another.

Justice comes of that frame of mind which gives to every one what belongs to him by civil right. Injustice, again, follows from a disposition to withhold or to take from another what properly belongs to him by right and law. Partiality and impartiality are equivalent terms for unjust and just, for he who is intrusted with the authority to determine differences between citizens is held to have no respect of persons, but to regard all as equal, and to defend the rights of every one with like zeal and conscientiousness, neither bending to the rich nor treading on the poor.

Confederates are the men composing two or more distinct states, who for mutual defence, to escape the perils of war, or for any other reason of presumed utility to themselves, enter into a compact not only not to injure one another, but to lend each other mutual aid and assistance in case of need, each all the while retaining its individual independence. This treaty or compact remains in force so long as the motive which led to its being entered into — whether fear of danger or prospect of advantage — continues to be felt, for no engagement is ever made, save in the hope of some benefit, or from the fear of some evil. If the ground of the compact be taken away, the compact comes to an end of itself, as is proved by every-day experience. For, though different states often enough agree not to injure one another, still each will strive to the extent of its ability to prevent its neighbour from becoming more powerful than itself. Nor are the terms of a treaty ever much regarded unless actions prove in conformity with these; if promises to aid and be useful are not kept [or if 'kept to the ear, are broken to the hope'], then deceit and injury are apprehended, and not without reason; for who but a fool, ignorant of the rights of ruling powers, would trust to the mere words and assurances of one possessed 'of supreme authority, armed with the power to do as he pleases, and to whom the glory and advantage of his own nation must be the supreme law! When with these we connect moral considerations, we shall see that no one who holds the chief authority could without guiltiness keep promises that would prove injurious to the interests of the state he rides. Whatever promise he may have made which he sees involves injury to the community over which he presides cannot be kept unless he breaks faith with his subjects, and this he is especially bound to observe; this indeed it is customary for rulers to engage themselves by solemn oaths to observe.

An Enemy is one who lives beyond the bounds of a state, and behaves in such a way as shows that he does not acknowledge its authority either as confederate or as subject; for it is not hate or animosity that makes an enemy of a state, but right; and the right of the state in regard to him who does not recognize its authority by treaty or contract is the same as it is in regard to him who brings damage upon it; wherefore, the state may compel him by every means at its command either to join it as a confederate or to comply with its behests as a subject.

The crime of Treason, lastly, occurs only among the subjects of states who by tacit or express agreement have transferred the whole of their rights to the ruling power; and he is said to be guilty of this crime who attempts in any way to seize the sovereign authority for himself, or to transfer it from the possessor to another — I say, who makes the attempt, in this case; for were the matter not subject to adjudication till after the fact, the state would mostly intervene too lute, and when the supreme authority had already been successfully usurped or transferred. I add, that I speak unconditionally of any attempt on any pretext whatever to seize the supreme power, myself acknowledging no difference in the guilt, whether advantage or disadvantage accrue to the commonwealth at large from the act of usurpation; for in whatever way, on whatever pretext, this is attempted or accomplished, it is equally treason to the state, and he who is guilty of the deed is justly condemned. This done in war, is allowed by all to be properly done. He, for example, who does not hold the post assigned to him, but of his own motion either retreats or attacks the enemy, without the command of the General-in-chief, although it were advisedly and even successfully done, is still held liable to be put on his trial, and even to be condemned to death for disobedience of orders, — for having failed in his oath, in fact, and usurped the right and authority of his commander. That citizens are absolutely bound by the same rule, however, is not seen so clearly by all, although the reason for obedience is the same in each case. For, since the commonwealth should be watched over and directed by the supreme authority alone, and citizens are absolutely engaged to yield this right, if any one, of his own mere motion and without the order and concurrence of the supreme power, takes it upon him to originate or to meddle in any business, although advantage may certainly accrue from it, nevertheless he violates the right of the ruling power; he commits treason, and is properly condemned and cast for punishment.

It still remains for me to vindicate what has been affirmed a little above, viz. that it is not openly contrary to revealed right to maintain that one who lives in the natural state without the use of his reason, agreeably to the laws of appetite, lives in conformity with the laws of the highest natural right. For, as all alike, whether in possession of their reason or not, are bound by the divine command to love their neighbour as themselves, it seems impossible to live according to the laws of more appetite and not do injury or injustice to others. To this objection, however, if the natural state only be regarded, we can readily find an answer; for the natural state, both in itself and in time, is anterior to religion. No one knows by nature that he owes any obedience to God; this knowledge follows from no reason, but can only be enforced upon every one by revelation confirmed by signs. Wherefore, until revelation was given to man, no one could be held bound by the divine law of which he was necessarily ignorant. Consequently, the natural state is by no means to be confounded with the religious state, but is to be regarded as without religion and law, and therefore without sin or crime, as we have already said, confirming our conclusion by reference to the authority of the Apostle Paul. Nor do we only conceive the natural state with reference to its ignorance, and its antecedence to the revelation of the divine law, but with reference to the liberty in which all are born. For if men were held by nature to the observance of divine law, or if divine right were natural right, it would have been superfluous for God to have entered into a covenant with man, and bound him by a bond and an oath. Wherefore, it must be acknowledged unconditionally that divine right began from the time when the Jews, engaged by an express compact to obey God in all things, when they abandoned their state of natural liberty, as it were, and transferred this their birthright to God; precisely as we have said is done in the civil state. Of these matters, however, I shall treat more at length in a subsequent chapter.

But here it may still be said that ruling powers as well as subjects are bound by the divine law, whilst we have declared that the supreme authority in a state did not part with its natural rights, and that to it all things within the range of its power were lawful. To remove this difficulty, which arises not so much from any reason of state as from considerations of natural right, I say, that in the state of nature every one is bound to live by revealed right, on the same grounds as he is held bound to live by the dictates of reason, viz. because it is advantageous and necessary to his wellbeing that he do so: if he wills not so to live, he refuses at his peril. Thus is one in the natural state held to live in his own proper way, not in obedience to the commands of another, neither acknowledging any earthly judge nor fearing any avenger in right of religion. And I affirm that the supreme power in the state retains the right of so living; that whilst it may take counsel with others, it is itself bound to acknowledge none as a judge, none save itself as avenger of any right infringed; unless, indeed, it were a prophet expressly sent by God, and who attested his mission by unquestionable signs. Nor even then were it the man whom the sovereign power might be held bound to acknowledge as judge, but God himself. But if the sovereign authority refuse to obey God in his revealed will, it must do so at its peril, as there is neither natural nor social law to restrain it, social law or right depending entirely, as we have seen, on the decree of the supreme authority, as natural right depends exclusively on the laws of nature, which are ordered not in accordance with religion only, which aims at the benefit of man alone, but in accordance with nature universally, that is to say, with the eternal decrees of God.

This truth seems to have been conceived, although obscurely, by some who maintain that man may sin against the revealed law of God indeed, but not against his eternal decree, whereby he has predestined all things. But if any one should now ask, What if the supreme authority should command anything against religion, and against the obedience which has been engaged to God by solemn covenant? Is the divine or the human authority to be obeyed? Here I only say in reply, that God is to be obeyed above all when we have a certain and unquestionable revelation of his will. But inasmuch as men are wont to err egregiously in religious matters, and as disputes and differences of great moment arise through diversity of capacity and temper — a truth to which experience amply testifies, — it is certain that if no one is held bound by law to obey the supreme power in matters which in his opinion belong to religion, then the right of the chief authority in the state would depend on the several judgments and dispositions of the individuals which compose it. For no one would be held bound by that which he deemed contrary to his belief, or perchance his superstition, and so all under this pretext might assume a licence for irregular conduct of every kind. But as on this plea the rights of the state would be annihilated, it follows that it must be competent for the supreme authority (with which both by divine and natural right lies the responsibility of upholding and defending the commonwealth) to determine, in virtue of the trust confided to it, the religious system which all shall be held bound to observe. Should they who possess the supreme power in the state be heathens, either no compact is to be made with them, but every extremity rather is to be endured; or if an agreement have been come to, and the rights of the community have been transferred to them, as by this the people will have abandoned their right of defending either themselves in their persons or their religious principles, there will then be nothing for them but to submit and keep faith with their rulers, save always in the case in which God by a certain revelation has promised his help against a tyrant, or when he has excepted one by name from the obedience due by subjects. Of all the Jews dwelling in Babylon, we only find notice of three young men with such faith in the protecting power of Jehovah that they refused to obey the commands of King Nebuchadnezzar. All the rest, with the single exception of Daniel, whom the king himself adored as a prophet, compelled by the strong hand of power, obeyed, believing probably that they were given over by the will of God to the king, who held his authority immediately from on high. Eleazar, on the contrary, desiring to give his countrymen an example of constancy, inasmuch as his country was still something more than a name, encouraged them to suffer everything with him rather than consent to transfer to the Greeks their rights and their independence, rather than bow down and swear fealty to the gods of the heathen. Such an example, indeed, has been frequently presented to the world. They who bear sovereign sway in Christian states, moreover, have not hesitated, for their advantage and greater security, to form alliances with Turks and heathens, and have required their subjects settled or about to settle in heathen countries to assume no greater liberty, either in civil or spiritual things, than was conceded by treaty, or than the barbarous authorities permitted. Of such an arrangement we have a notable example in the intercourse between the Dutch and Japanese, of which mention was made above.