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Gershom Carmichael on the idea that civil power is founded on the consent of those against whom it is exercised (1724)

Gershom Carmichael (1672-1729) argued that the legitimacy of the government lay in the consent the people gave the civil authority when they transferred the rights they had in the state of nature to it:

When civil power defends the rights of citizens against their fellow citizens or against foreigners, it acts with the consent of those for whose benefit it is exercised. For civil power is in fact nothing but the right which belonged to individuals in the state of nature to claim what was their own or what was due to them, and which has been conferred upon the same ruler for the sake of civil peace.

It is also easily shown that all these divisions of the supreme power are derived from the consenting will of the subjects. For civil power, by commanding and prohibiting, by imposing fines or handing down sentences, or, finally, by making treaties with foreign powers, obliges the citizens to do, omit, or suffer what, in the state of nature, it would be in their own power to do, omit, or prevent. Manifestly therefore civil power is founded in the consent of those against whom it is exercised. A man’s right of disposing of his actions and therefore of his property so far as that depends on his actions, is called freedom (libertas) while he remains in the state of nature; this same right becomes government (imperium) when it is transferred, with each man’s consent, as the end of civil society requires, to a sovereign. On the other hand when civil power defends the rights of citizens against their fellow citizens or against foreigners, it acts with the consent of those for whose benefit it is exercised. For civil power is in fact nothing but the right which belonged to individuals in the state of nature to claim what was their own or what was due to them, and which has been conferred upon the same ruler for the sake of civil peace. In this category belongs the power of inflicting corporal punishment on the guilty, except that since this power belongs naturally to all men, it ought not to be said to be conferred upon the sovereign power, so much as restricted to him, while the rest of the citizens forbid themselves its use.

About this Quotation:

The Scottish moral philosopher Gershom Carmichael (1672-1729) taught natural law to among others Adam Smith and thus played a very important role in the Scottish Enlightenment. One of his key ideas was that individuals in the state of nature had the “right of disposing of his actions and therefore of his property” (known as “liberty”), which they later “transferred” with their full consent and not “surrendered” to the government (known as Imperium). This government could not exercise unlimited power as it was bound by the divine law and by the specific agreement made with the people when they “transferred” their rights to it. However, when “clear signs” emerged that a sovereign had broken these divine laws and the agreements with the people, the people were entitled to resist that civil authority, and transfer their rights to another person “by curtailing the resources of the sovereign ruler or by entrusting the government to someone else.” The example Carmichael had in mind was “the happy Revolution of these Kingdoms” of 1688 when the tyrannical Stuart monarchy was replaced by the Dutchman William, Prince of Orange and Stadtholder of Holland.

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