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stands here in relation to the law precisely as he does in those countries where there is no elective franchise. He incurs, indeed, as elector, a responsibility for the law, and cannot be exempted from blame, if he have not done all in his power to make the law just and useful; but when the proper
authorities have enacted and promulgated the law, he in his quality of subject incurs no responsibility by obeying it, in consequence of his responsibility as an elector in making it. The act of making the law was not his individual act, and he is responsible for it, providing he acted with proper motives, only so far as he went to make up the collective unity that enacted it. But the act of obedience or of disobedience is purely his individual act, and is unaffected, as obedience or disobedience, by any act of his performed in another capacity, in which he acts not as an individual, but as a part of a whole. Suppose, then, I look upon the war declared by my government as unjust or uncalled for. This may be a good reason why I should exert myself in my quality of elector to get the law declaring it repealed, but it leaves me in my quality of subject precisely where I should be in case I had no elective franchise. I am just as much bound to obey the law declaring the war, and incur no more blame for aiding in prosecuting it. The citizen, when he believes a law unjust, is doubtless bound as an elector to seek its repeal ; but till repealed, he is as much bound to obey as he would be if he were no elector, and only a simple subject; and being so bound, incurs no blame in obeying it, that he would not then also incur.
But is there no limit to this obedience to law? Have I not the right to judge the acts of authority, and decide for myself whether they are such as I ought or ought not to obey ? That is, Does or does not the law depend on the assent of the governed for its validity? It is a sort of maxim with us Americans, that no man can be justly held to obey a law to which he has not assented. This, taken absolutely, is not admissible. The sovereign authority resides in the people as a whole, taken collectively, not in the people distributively, and is derived not from the people as individuals, as Rousseau dreamed, but from God, as we have before proved from the Holy Scriptures. Moreover, to make the law depend on the assent of the governed, that is, on the assent of the subject, is to deny that the law is law, that the subject is a subject, and to assert that one is bound by no law, but free to do as he pleases. There can be no legitimate government unless it have the right to govern, and there can be no right to govern where there is not a correlative obligation to obey. If the law cannot bind the subject till he gives his assent, and he is free to give or withhold his assent, he is, and can be, under no obligation to obey unless he chooses, and then there is no right on the part of the government to enforce obedience; then no right to govern: and then no government. To make the law depend for its validity on the assent of the governed is, then, the denial of all government. But government exists by divine right. It has from God the right to command. Then it is not under the necessity of entreating or requesting the subject to be so complacent as to obey. The law, then, is complete, the moment it is enacted and promulgated by the proper authority. If the law is then complete, the subject has no assent to give or withhold, no judgment to form, no decision to take, but that to obey.
Nevertheless, there is a sense, in this country, and perhaps in all countries, in which it is true that the assent of the governed is essential to the validity of the law; but this is the assent they give in their quality of electors, through the medium of their representatives in enacting the law, not an assent which they give as subjects to the law after it is enacted and promulgated. The distinction is obvious and important. It is only in our quality of electors, through the medium of our representatives, that we have any legislative authority, any assent, to give or to withhold. But in this quality we have already assented to the law, otherwise it could not have been enacted, since there is no power with us but the people in this quality and through this medium that does or can make the law. Having thus assented, nay, enacted the law, we have no more assent to give, and it would be absurd to seek, after this, the assent of the people in their capacity of simple individuals, in which they are simply subjects, and have no legislative voice whatever. Having spoken once in our legislative capacity, as electors, through our representatives, we must obey, till, by speaking again in the same capacity and through the same medium, we repeal the law. That is, when the people have made the law, they must obey it, till they, through the forms through which they made it, repeal it.
But laws may undoubtedly be unjust. Am I bound to obey unjust laws! We will let St. Thomas answer this question for us. “ Laws imposed by human authority may be either just or unjust. If they are indeed just, they bind in conscience, by the eternal law from which they are derived, according to Prov. viii. 15,-Per me reges regnant, et legum conditores justa decernunt. They are just when they ordain what is for the common good, when enacted by an authority which does not exceed its powers, and when they distribute in equal proportions the burdens they impose upon the subjects for the common good. For, since each man is a part of the multitude, every man belongs to the multitude in that which he is and in that which he has, in like manner as the part belongs in what it is to the whole, and hence nature allows a certain detriment to the part that the whole may be saved. Consequently, laws of this kind, which proportion equally the burdens imposed, are just, bind in conscience, and are legal laws. But laws may
be unjust in two senses. 1. By contrariety to human good, in the respects just mentioned. They are unjust, when a prince imposes burdens on his subjects, not for the common good, but rather for his own glory or cupidity, when they exceed the commission or the authority which ordains them, and when the burdens they impose, even though for the common good, are not equally proportioned. Such acts are violences rather than laws, as St. Augustine says, De Lib. Arb., I., c. 5.—Lex esse non videtur, quo justa non fuerit. Laws of this kind do not bind in conscience, unless, perchance, for the avoiding of scandal or disorder, for which a man must forego his own rights, according to St. Matt. v. 40, 41,-Qui angariaverit te mille passus, vade cum eo alia duo ; et qui abstulerit tibi tunicam, da ei et pallium. 2. Laws may be unjust by contrariety to divine good, as the edicts of tyrants commanding idolatry or other things forbidden by the divine law. Such laws are to be observed in no sense whatever, since, Acts iv., it is necessary to obey God rather than men.” *
The principle is, that all just laws bind in conscience ; but, with regard to unjust laws, we must distinguish between those which are unjust because they ordain what is repugnant to human good, and those which are unjust because they ordain what is repugnant to the divine law. The latter do not bind, but we are bound in conscience to refuse to obey them at all hazards; the former, when they
*Summa, 1, 2, Quæs. 96, a. 4.
only require us to suffer wrong, -and if they go further and command us to do wrong, they are identical with the latter, -we may obey, and are bound to obey, when our disobedience would cause scandal or breed disturbance in the state.
But who is to determine whether the laws are just or unjust? Not absolutely in all cases the state, for that would make the distinction between just and unjust laws nugatory, since the state, in enacting a law, decides that it is just; not the individual, for that would make the law depend on the assent of the subject for its legality, which we have seen is not the fact, and cannot be the fact, if we are to have government at all. There is here, to many minds, no doubt, a serious difficulty ; but, without considering it in a light which would involve a controversy foreign to our present purpose, we may answer the question by laying down the principle, that authority is always presumptively in the right, and the law prima facie evidence of justice. The onus probandi rests on the shoulders of the subject, who
the law to be unjust, before he can have the right to refuse it obedience. For this his own private judgment or conviction can never suffice. If he can allege nothing against the law but his own individual persuasion of its injustice, he is bound, by his general obligation to obey the laws, to obey it. No one, then, can ever be justified in disobeying on his own private authority. He must sustain his refusal to obey by an authority higher than his own, higher than that of the state, or else he will be guilty of resisting the ordinance of God, and, therefore, purchase damnation to himself. Hence, where there is no infallible authority to decide, the subject must always presume the law to be just, and faithfully obey it, unless it manifestly and undeniably ordains what is wrong in itself, and prohibited by the law of God.
This rule may strike some as too stringent, but, if exainined, closely, it will be found to allow all the liberty to the subject compatible with the existence of government. If, for instance, the government should command me to lie, to steal, to rob, to bear false witness, or any thing else manifestly against the law of nature or the law of God, I should hold myself bound to disobey, and to take the consequences of my disobedience. So also, if my government should declare war against an unoffending state, manifestly for the purpose of stripping it of its territory, destroying its independence, and reducing its people to slavery, or for the purpose of overthrowing the Christian religion and substituting a false religion, and should command me to aid it in its nefarious designs, I should hold myself bound in conscience to refuse at all hazards ; for such a war would be manifestly and palpably unjust, not in my judgment only, but in that of all sound-minded men. Such a case would be clear, and duty would be so plain that no question could arise. But in a case less clear and manifest, in a case where there was room for doubt, for an honest difference of opinion, I should hold myself bound to obey the orders of the governinent, for conscience sake, leaving the responsibility with it, sure of incurring no blame myself.
In conclusion, we say, that, though we have defended the lawfulness of war, when declared by the sovereign authority, for a just cause, and prosecuted with right intentions, we have no sympathy with that restless and ambitious spirit that craves war for the sake of excitement or glory. Only a stern necessity can ever justify the resort to arins, and that necessity does not in reality often exist. In most cases, the war, with a little prudence, a little forbearance, a little use of reason, might be avoided; and a terrible responsibility rests upon rulers when they unnecessarily plunge two nations in the horrors of war. Yet it belongs to the sovereign authority to judge of the necessity of the war, no less than to declare it; and when not manifestly and undeniably for that which is wrong in itself, the subject is bound to obey, and give his life, if need be, for his country. But the subject can, with a good conscience, fight only under the national banner. He can never justly fight under the blood-red flag of the factionist or of the revolutionist. The loyal subject hears no call to the battle-field but that of his sovereign. This sovereign he hears, by him he stands, for him he is ready to fight against any enemies, from within or from without. But there he stops. He can join with no faction, with no party, against the legitimate authorities of his country. No dreams of free institutions, of popular government, of an earthly paradise can inake him raise the parricidal hand, and seek by violence to overthrow legitimate government, and introduce a new political order. No, dearly as we love liberal institutions, and as ready as we are to spill our blood in their defence where they are the legal order, we would rush to the side of authority, and spill the same blood against them, if there