Item of the Day: The Rights of the British Colonies by James Otis (1764)

Full Title:  The Rights of the British Colonies Asserted and Proved. By James Otis, Esq.  Boston, Printed and Sold by Edes and Gill, in Queen Street. M,DCC,LXIV.

Introduction.

Of the Origin of Government.

The origin of government has in all ages no less perplexed the heads of lawyers and politicians, than the origin of evil has embarrassed divines and philosophers:  And ’tis probable the world may receive a satisfactory solution on both those points of enquiry at the same time.

The various opinions on the origin of government have been reduced to four.  1.  That dominion is founded in Grace.        2.  On force or meer power.  3.  On compact.  4.  On property.

The first of these opinions is so absurd, and the world has paid so very dear for embracing it, especially under the administration of the roman pontiffs, that mankind seem at this day to be in a great measure cured of their madness in this particular; and the notion is pretty generally exploded, and hiss’d off the stage.

To those who lay the foundation of government force and meer brutal power, it is objected; that, their system destroys all distinction between right and wrong; that it overturns all morality, and leaves it to every man to do what is right in his own eyes; that it leads directly to scepticism, and ends in atheism.  When a man’s will and pleasure is his only rule and guide, what safety can there be either for him or against him, but in the point of a sword?

On the other hand the gentlemen in favor of the original compact have been often told that their system is chimerical and unsupported by reason or experience.  Questions like the following have been frequently asked them, and may be again.

“When and where was the original compact for introducing government into any society, or for creating a society, made?  Who were present and parties to such a compact?  Who acted for infants and women, or who appointed guardians for them? Had these guardians power to bind both infants and women during life, and their posterity after them?  Is it nature or reason that a guardian should by his own act perpetuate his power over his ward, and bind him and his posterity in chains?  Is not every man born as free by nature as his father?  Has he not the same natural right to think and act and contract for himself?  Is it possible for a man to have a natural right to make a slave of himself or of his posterity?  Can a father supersede the laws of nature?  What man is or ever was born free, if every man is not?  What will there be to distinguish the next generation of men from their forefathers, that they should not have the same right to make original compacts as their ancestors had?  If every man has such a right, may there not be as many original compacts as there are men and women born or to be born?  Are not women born as free as men?  would it not be infamous to assert that the ladies are all slaves by nature?  If every man and woman born or to be born has, and will have, a right to be consulted, and must accede to the original compact before they can with any kind of justice be said to be bound by it, will not the compact be ever forming and never finished, ever making but never done?  Can it with propriety be called a compact original or derivative, that is ever in treaty but never concluded?”

When it has been said that each man is bound as soon as he accedes, and that the content may be either express or tacit, it has been asked, “What is a tacit consent or compact?  Does it not appear plain that those who refuse their assent can not be bound?  If one is at liberty to acede or not, is he not also at liberty to recede on the discovery of some intolerable fraud and abuse that hs been palm’d upon him by the rest of the high contracting parties?  Will not natural equity in several special cases rescind the original compacts of great men as effectually as those of little men are rendered null and void in the ordinary course of a court of chancery?”

These are other questions which have been started, and a resolution of them demanded, which may perhaps be deemed indecent by those who hold the prerogatives of an earthly monarch, and even the power of a plantation government, so sacred as to think it little less than blasphemy to enquire into their origin and foundation:  while the government of the supreme ruler of the universe is every day discussed with less ceremony and decency than the administration of a petty German prince.  I hope the reader will consider that I am at present only mentioning such questions as have been put by high-flyers & others in church and state, who would exclude all compact between a Sovereign and his people, without offering my own sentiments upon them; this however I presume I may be allowed hereafter to do without offence.  Those who want a full answer to them may consult Mr. Locke’s discourses on government, M. De Vattel’s law of nature and nations, and their own consciences. . . .

With regard to the fourth opinion, that dominion is founded in property, what is it but playing with words?  Dominion in one sense of the term is synonimous with property, so one cannot be called the foundation of the other, but as one name may appear to be the foundation or cause of another.

Property cannot be the foundation of dominion as synonimous with government; for on the supposition that property has a precarious existence antecedent to government, and tho’ it is also admitted that the security of property is one end of government, but that of little estimation even in the view of a miser when life and liberty of locomotion and further accumulation are placed in competition, it must be a very absurd way of speaking to assert that one end of government is the foundation of government.  If the ends of government are to be considered as its foundation, it cannot with truth or propriety be said that government is founded on any one of those ends; and therefore government is not founded on property or it security alone, but at least on something else in conjunction. . . .  It will never follow from all this, that government is rightfully founded on property, alone.  What shall we say then?  Is not government founded on grace?  No.  Not on force?  No.  Nor on compact?  Nor property?  Not altogether on either.  Has it any solid foundation?  any chief corner stone, but what accident, chance or confusion may lay one moment and destroy the next?  I think it has an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary.  The same omniscient, omnipotent, infinitely good and gracious Creator of the universe, who has been pleased to make it necessary that what we call matter should gravitate, for the celestial bodies to roll round their axes, dance their orbits and perform their various revolutions in that beautiful order and concert, which we all admire, has made it equally necessary from Adam and Eve to these degenerate days, the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined, as the dew of Heaven and the soft distilling rain is collected by the all enliv’ning heat of the sun.  Government is therefore most evidently founded on the necessities of our nature.  It is by no means an arbitrary thing, depending merely on compact or human will for its existence.

 

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