The Liberties of Nations are from God and Nature, not from Kings.

WHATSOEVER is usually said in opposition to this, seems to proceed from a groundless conceit, that the liberties enjoy'd by nations arise from the concessions of princes. This point has been already treated: but being the foundation of the doctrine I oppose, it may not be amiss farther to examine how it can be possible for one man born under the same condition with the rest of mankind to have a right in himself that is not common to all others, till it be by them or a certain number of them conferred upon him; or how he can without the utmost absurdity be said to grant liberties and privileges to them who made him to be what he is.

If I had to do with a man that sought after truth, I should think he had been led into this extravagant opinion by the terms ordinarily used in patents and charters granted to particular men; and not distinguishing between the proprietor and the dispenser, might think kings had given, as their own, that which they only distribute out of the publick treasury, and could have had nothing to distribute by parcels, if it had not been given to them in gross by the publick. But I need not use our author so gently. The perversity of his judgment, and obstinate hatred to truth is sufficient to draw him into the most absurd errors without any other inducement; and it were not charity, but folly to think he could have attributed in general to all princes, without any regard to the ways by which they attain to their power, such an authority as never justly belonged to any.

This will be evident to all those who consider, that no man can confer upon others that which he has not in himself: If he be originally no more than they, he cannot grant to them or any of them more than they to him. In the 7th, 8th, 9th and subsequent sections of the first chapter, it has been proved that there is no resemblence between the paternal right, and the absolute power which he asserts in kings: that the right of a father, whatever it be, is only over his children; that this right is equally inherited by them all when he dies: that everyone cannot inherit dominion; for the right of one would be inconsistent with that of all others: that the right which is common to all is that which we call liberty, or exemption from dominion: that the first fathers of mankind after the Flood had not the exercise of regal power; and whatsoever they had was equally devolved to every one of their sons, as appears by the examples of Noah, Shem, Abraham, Isaac, Jacob, and their children: that the erection of Nimrod's kingdom was directly contrary to, and inconsistent with the paternal right, if there was any regality in it: that the other kingdoms of that time were of the same nature: that Nimrod not exceeding the age of threescore years when he built Babel, could not be the father of those that assisted him in that attempt: that if the seventy two kings, who, as our author says, went from Babylon upon the confusion of languages, were not the sons of Nimrod, he could not govern them by the right of a father; if they were, they must have been very young, and could not have children of their own to people the kingdoms they set up: that whose children soever they were, who out of a part of mankind did within a hundred and thirty two years after the flood, divide into so many kingdoms, they shewed that others in process of time might subdivide into as many as they pleased; and kingdoms multiplying in the space of four thousand years since the 72, in the same proportion they did in one hundred and thirty two years into seventy two, there would now be as many kings in the world as there are men; that is, no man could be subject to another: that this equality of right and exemption from the domination of any other is called liberty: that he who enjoys it cannot be deprived of it, unless by his own consent, or by force: that no one man can force a multitude, or if he did, it could confer no right upon him: that a multitude consenting to be governed by one man, doth confer upon him the power of governing them; the powers therefore that he has, are from them, and they who have all in themselves can receive nothing from him, who has no more than every one of them, till they do invest him with it. This is proved by sacred and profane histories. The Hebrews in the creation of judges, kings, or other magistrates, had no regard to paternity, or to any who by extraction could in the least pretend to the right of fathers: God did never direct them to do it, nor reprove them for neglecting it: If they would chuse a king, he commanded them to take one of their brethren, not one who called himself their father: When they did resolve to have one, he commanded them to chuse him by lot, and caused the lot to fall upon a young man of the youngest tribe: David and the other kings of Israel or Judah had no more to say for themselves in that point than Saul: All the kings of that nation before and after the Captivity, ordinarily or extraordinarily set up, justly or unjustly, were raised without any regard to any prerogative they could claim or arrogate to themselves on that account. All that they had therefore was from their elevation, and their elevation from those that elevated them: 'Twas impossible for them to confer anything upon those from whom they received all they had; or for the people to give power to kings, if they had not had it in themselves; which power universally residing in everyone, is that which we call liberty. The method of other nations was much like to this. They placed those in the throne who seemed best to deserve so great an honour, and most able to bear so great a burden: The kingdoms of the heroes were nothing else but the government of those who were most beneficent to the nations amongst whom they lived, and whose virtues were thought fit to be raised above the ordinary level of the world. Tho perhaps there was not any one Athenian or Roman equal to Theseus or Romulus in courage and strength, yet they were not able to subdue many or if any man should be so vain to think that each of them did at first subdue one man, then two, and so proceeding by degrees conquered a whole people, he cannot without madness ascribe the same to Numa, who being sent for from a foreign country, was immediately made king of a fierce people, that had already conquer'd many of their neighbours, and was grown too boisterous even for Romulus himself. The like may be said of the first Tarquin, and of Servius; they were strangers: and tho Tullus Hostilius and Ancus Marcius were Romans, they had as little title to a dominion over their fellow-citizens, or means of attaining to it, as if they had come from the farthest parts of the earth. This must be in all places, unless one man could prove by a perfect and uninterrupted genealogy that he is the eldest son of the eldest line of Noah, and that line to have continued perpetually in the government of the world: for if the power has been divided, it may be subdivided into infinity; if interrupted, the chain is broken, and can never be made whole. But if our author can perform this for the service of any man, I willingly surrender my arms, and yield up the cause I defend. If he fail, 'tis ridiculous to pretend a right that belongs to no man, or to go about to retrieve a right which for the space of four thousand years has lain dormant; and much more to create that which never had a subsistence. This leads us necessarily to a conclusion, that all kingdoms are at the first erected by the consent of nations, and given to whom they please; or else all are set up by force, or some by force and some by consent: If any are set up by the consent of nations, those kings do not confer liberties upon those nations, but receive all from them, and the general proposition is false. If our author therefore, or his followers, would confute me, they must prove that all the kingdoms of the world have their beginning from force, and that force doth always create a right; or if they recede from the general proposition, and attribute a peculiar right to one or more princes, who are so absolute lords of their people, that those under them have neither liberty, privilege, property or part in the government, but by their concessions, they must prove that those princes did by force gain the power they have, and that their right is derived from it. This force also must have been perpetually continued; for if that force be the root of the right that is pretended, another force by the same rule may overturn, extinguish or transfer it to another hand. If contracts have interven'd, the force ceases; and the right that afterwards doth accrue to the persons, must proceed from, and be regulated according to those contracts.

This may be sufficient to my purpose: For as it has been already proved, that the kingdoms of Israel, Judah, Rome, Sparta, France, Spain, England, and all that we are concerned in, or that deserve to be examples to us, did arise from the consent of the respective nations, and were frequently reduced to their first principles, when the princes have endeavour'd to transgress the laws of their institution; it could be nothing to us, tho Attila or Tamerlane had by force gained the dominions they possess'd. But I dare go a step further, and boldly assert, that there never was or can be a man in the world that did, or can subdue a nation; and that the right of one grounded upon force is a mere whimsey. It was not Agathocles, Dionysius, Nabis, Marius, Sulla or Caesar, but the mercenary soldiers, and other villains that joined with them, who subdued the Syracusans, Spartans or Romans: And as the work was not performed by those tyrants alone, if a right had been gained by the violence they used, it must have been common to all those that gained it; and he that commanded them could have had no more than they thought fit to confer upon him. When Miltiades desired leave to wear an olive garland, in commemoration of the victory obtained at Marathon, an Athenian did in my opinion rightly say, "If you alone did fight against the Persians, it is just that you only should be crowned; but if others did participate in the victory, they ought also to have a part in the honour."[1] And the principal difference that I have observ'd between the most regular proceedings of the wisest senates or assemblies of the people in their persons or delegates, and the fury of the most dissolute villains, has been, that the first seeking the publick good, do usually set up such a man, and invest him with such powers as seem most conducing to that good: whereas the others following the impulse of a bestial rage, and aiming at nothing but the satisfaction of their own lusts, always advance one from whom they expect the greatest advantages to themselves, and give him such powers as most conduce to the accomplishment of their own ends: but as to the person 'tis the same thing. Caesar and Nero did no more make themselves what they were, than Numa; and could no more confer any right, liberty or privilege upon the army, that gave them all they had, than the most regular magistrate can upon the senate or people that chose them.

This also is common to the worst as well as the best, that they who set up either, do, as into a publick treasury, confer upon the person they chuse, a power of distributing to particular men, or numbers of men, such honors, privileges and advantages, as they may seem, according to the principles of the government, to deserve. But there is this difference, that the ends of the one being good, and those of the other evil, the first do for the most part limit the powers, that something may remain to reward services done to the publick, in a manner proportion'd to the merit of everyone, placing other magistrates to see it really performed, so as they may not, by the weakness or vices of the governor, be turned to the publick detriment: the others think they never give enough, that the prince having all in his power, may be able to gratify their most exorbitant desires, if by any ways they can get his favour; and his infirmities and vices being most beneficial to them, they seldom allow to any other magistrate a power of opposing his will, or suffer those who for the publick good would assume it. The world affords many examples of both sorts, and every one of them have had their progress suitable to their constitution. The regular kingdoms of England, France, Spain, Poland, Bohemia, Denmark, Sweden, and others, whether elective or hereditary, have had high stewards, constables, mayors of the palace, reichshofmeisters, parliaments, diets, assemblies of estates, cortes, and the like, by which those have been admitted to succeed who seemed most fit for the publick service; the unworthy have been rejected; the infirmities of the weak supplied; the malice of the unjust restrained; and when necessity required, the crown transferr'd from one line or family to another. But in the furious tyrannies that have been set up by the violence of a corrupted soldiery, as in the ancient Roman empire, the kingdoms of the Moors and Arabians, the tyrannies of Ezzelino of Padua, those of the Visconti and Sforzeschi of Milan, Castruccio Castracani of Lucca, Cesare Borgia, and others, there was nothing of all this. The will of the prince was a law; all power was in him, and he kept it, till another stept up and took it from him, by the same means that he had gain'd it. This fell out so frequently, that tho all the Roman emperors endeavour'd to make their power hereditary, it hardly continued three generations in one line from Augustus to Augustulus, unless in that of Constantine, and that with extreme confusion and disorder. They who had madly set up a man to be their head, and exposed so much of the world as was under their power, to be destroy'd by him, did by the like fury throw him down, and never ceased till they had brought the empire to utter ruin.

But if this paternal sovereignty be a mere fiction that never had any effect; that no nation was ever commanded by God to make it their rule, nor any reproved for the neglect of it; none ever learnt it from the light of nature, nor were by wise men taught to regard it: The first fathers claimed no privilege from it when every man's genealogy was known; and if there were such a thing in nature, it could be of no use at this day, when the several races of men are so confused, that not one in the world can prove his own original; and that the first kingdoms, whether well or ill constituted, according to the command of God, or the inventions of men, were contrary to, and incompatible with it; There can have been no justice in any, if such a rule was to have been observed; the continuance of an unjust usurpation can never have created a right, but aggravated the injustice of overthrowing it: No man could ever by his own strength and courage subdue a multitude, nor gain any other right over them if he did, than they might have to tear it from him; whoever denies kingdoms or other magistracies to have been set up by men, according to their own will, and from an opinion of receiving benefit by them, accuses all the governments that are, or ever have been in the world, of that outrageous injustice in their foundation which can never be repair'd. If there be therefore, or ever was, any just government amongst men, it was constituted by them; and whether their proceedings were regular or violent, just or unjust, the powers annexed to it were their donation: The magistracies erected by them, whether in one or more men, temporary or perpetual, elective or hereditary, were their creatures; and receiving all from them, could confer nothing upon them.

[1] Plut. in Vit. Cim. [Plutarch, Life of Cimon, ch. 8.]