Do We Consent to Government by Refusing to Emigrate?

[From “‘Oh,Ye Are For Anarchy!’: Consent Theory in the Radical Libertarian Tradition” in the Journal of Libertarian Studies, Winter, 1986.]

William Molyneux was an Irish friend and correspondent of [John] Locke’s, who represented Dublin University in the Irish parliament. During the late 1690s he was concerned with the effect of the recent legislation of the English parliament on the wollen and linen industries in Ireland. This and his correspondence with Locke led him in 1698 to publish “The Case of Ireland’s Being Bound by Acts of Parliament in England Stated.” His basic purpose was to prove the legislative independence of the Irish parliament, and in doing this, he resorted to Locke’s treatise as a justification for his position. “Molyneux used the book and named Locke as its author at a time when Locke refused to acknowledge it even in private, and without asking his permission.” The book created a stir in the English House of Commons, and a committee was appointed to investigate it for suspicions of treason. The committee “unanimously resolved ‘that the said book was of dangerous consequence to the crown and parliament of England.'” History has it that Molyneux’s book was ordered to be burned by the common hangman.

What was it that made Molyneux’s book such a threat? Quite simply it was his insistence on a literal interpretation of Locke’s consent theory. His critics realized that it led straight toward anarchy. The heart of Molyneux’s argument sounds remarkably Lockean and anarchist. He wrote:

I shall venture to assert, that the Right of being subject only to such laws, to which Men give their ‘own’ Consent, is so ‘inherent’ in ‘all’ Mankind, and founded on such ‘immutable’ Laws of Nature and Reason, that ’tis not to be aliened, or given up by any Body of Men whatever. . . . I have no other Notion of ‘Slavery’; but being bound by Law, to which I do not consent.

Molyneux clearly understood the relationship between property rights and consent. “Consent is a necessary condition for the transfer of title. To use or dispose of another person’s property without his consent is the fundamental act of injustice.” According to Molyneux:

The Obligation of all Laws have the same Foundation, if ‘One’ Law may be imposed ‘without Consent’, any ‘Other’ Law whatever, may be imposed on us ‘without our Consent’. This will naturally introduce ‘Taxing us without our Consent’; and this as necessarily destroys our ‘Property’. I have no other Notion of ‘Property’, but a ‘Power of Disposing my Goods as I please’, and not as another shall Command: Whatever another may ‘Rightfully’ take from me ‘without my Consent’, I have certainly no ‘Property’ in. To ‘Tax’ me without Consent, is little better, if at all, than ‘downright Robbing me’.

Molyneux was probably the first to explicitly relate these main elements of proprietary justice. Clearly there was no difference between taxation and robbery, if consent was unnecessary in the former case. Perhaps Molyneux would not have applied his theory in typical anarchist fashion to delegitimize all government (for he was arguing for an all-Irish parliament, which in all likelihood would itself have powers of taxation). Nonetheless, his ideas and reputation did survive his own death and were repeatedly “taken up with each burst of Irish national sentiment throughout the century, by Swift, Charles Lucas, by Garran and Pollock, even eventually by Wolfe Tone.”

Other than Molyneux’s claims for the Lockean theory of consent, its application to the colonial relationships within the British empire remained unexamined for the most part until the 1760s. Most theorists, applying Locke’s doctrine of tacit consent, saw no incongruity between the legislative sovereignty of the English parliament and the conventional theory of Whig politics, which in turn was largely premised on The Two Treatises. The opponents of Molyneux in 1698 based their argument on the idea that emigration removed the right of direct representation in the English parliament. This eliminated the requirement for the emigre’s explicit consent to the acts of the parliament in England.

Throughout the eighteenth century, Locke’s idea of emigration and the idea of tacitly consenting to one’s government by maintaining residence within the geographic area of its jurisdiction were ridiculed as an unsound theory. Indeed Adam Smith in his Lectures on Justice, Police, Revenue, and Arms (circa 1763) argued that most people under the dominion of a government cannot be said to give consent to that government, in the sense that they would consent to a contract. “To say that by staying in a country a man agrees to a contract of obedience to government is just the same with carrying a man into a ship and after he is at a distance from land to tell him that by being in the ship he has contracted to obey the master.” David Hume, fifteen years earlier, asserted in his essay “Of the Original Contract” that it was ridiculous to claim “that political connexions are founded altogether on voluntary consent or mutual promise.” (“The magistrate would soon imprison you as seditious for loosening the ties of obedience, if your friends did not before shut you up as delirious for advancing such absurdities.”:

Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean and perish the moment he leaves her.

Hume concluded that if tacit consent and the obligation of obedience, which it entails, reached all the inhabitants of a territory, then the most outrageous tyrant could be said to govern with the consent of his subjects. “If consent could be watered down like this, it would lose all value as a guarantee of individual liberty.”

[For footnotes and sources, see the full text.]

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