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CHAPTER III: The Division of War into Publick and Private. An Explication of the supreme Power. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 1 (Book I) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 1.
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The Division of War into Publick and Private.
I.The Division of War into publick and private.I. The most general and most necessary Division of War is this, that one War is private, another publick, and another mixed; that is a publick War, which is made on each Side by the Authority of the1 Civil Power. Private War is that which is made between private Persons, without publick Authority. Mixed War is that which is made on one Side by publick Authority, and on the other by mere private Persons. But let us first speak of private War, which is the most antient.<54>
That some Sort of private War may be lawfully waged, as far as respects the Law of Nature, I think has been fully proved by what I have said above, where it was shewn, that it is not repugnant to the Law of Nature, for any one to repel Injuries by Force. But perhaps some will think, that it is not lawful, at least since the establishment of publick Judges; for tho’ Courts of Justice are not from Nature, but human Appointment; yet, since it is much honester, and more conducive to the Peace of Mankind, that Differences should be decided by a third Person that is disinterested, than that every Man should be allowed to do himself Justice in his own Cause, wherein the Illusions of Self-Loveare much to be apprehended: Equity itself, and natural Reason, advise us to submit to so laudable an Institution. Paulus the Lawyer says,2That is not to be allowed to private Persons, which may be done publickly by a Magistrate; lest it be the Occasion of great Troubles. The Reason why Laws were invented, says King Theodorick, is,3that none should use Violence, and do himself Justice; for wherein does War differ from Peace, if private Persons determine their Disputes by Force? And Laws call that Force, whensoever4a Man would take that which he thinks is due, without having Recourse to a Judge.
II.That all private War, by the Law of Nature, was not unlawful, after the erecting of Tribunals of Justice, defended, with some Examples.II. Undoubtedly, the Liberty allowed before is now much restrained, since the erecting of Tribunals: Yet there are some Cases wherein that Right still subsists; that is, when the Way to legal Justice is not open. For the Law which forbids a Man to pursue his Right any other Way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. Now the Way to legal Justice may fail, either for some Time or absolutely. It fails for some Time only, when the Judge cannot be waited for1 without certain Danger or Damage. It fails absolutely, either by Right or Fact: By Right, if a Man be2 in Places not inhabited, as on the Seas, in a Wilderness, in desart Islands; and any other Places where there is no Civil Government. By Fact, if Subjects will not submit to the Judge, or the Judge refuse3 openly to take Cognizance of Matters in Dispute.
What we said before, that even since Tribunals of Justice were erected, every private War is not repugnant to the Law of Nature, may be gathered from the Law given to the Jews,Ex. xxii. 2. where GOD thus speaks by Moses, If a Thief be found breaking up, (that is, by Night) and be smitten, that he dies, there shall no Blood be shed for him; but if the Sun be risen upon him, there shall be Blood shed for him. For this Law so accurately distinguishing the Cases, seems not only to import an Impunity; but also to explain the Law of Nature; and that it is not founded on any particular Divine Command, but on common Equity; whence we see that other Nations have followed the same Principle. That of the Twelve Tables is well known, which was undoubtedly taken from the4 old Attick Law;5If a Thief commit a Robbery in the Night, and if a Man kill him, he is killed lawfully. So is he reputed innocent by the Laws of all known Nations, who by Arms defends himself against him that assaults his Life; which so manifest a Consent is a plain Testimony, that there is nothing in it contrary to the Law of Nature.<55>
III.Nor by the Evangelical Law, with an Answer to the Objections.III. There is more Difficulty concerning the Divine positive Law, more perfect than the Law of Nature, I mean the Gospel. I doubt not but GOD, who has more Right over our Lives than we ourselves, might have required Patience of us to such a Degree, that being brought privately into Danger, we ought rather to suffer ourselves to be killed, than to kill. But our Question is, Whether he has thought fit to tye us up so far? Two Places (of Scripture) are wont to be brought for the affirmative Opinion, which we have already explained, when we examined whether War in general was lawful.Matt. v. 39. Rom. xii. 19.But I say unto you, resist not him that doth Thee an Injury. Dearly beloved, avenge not yourselves; the Latin Version has it, Defend not yourselves. There is also a third Place, in those Words of CHRIST to St. Peter, Put up thy Sword into the Sheath;Matt. xxv. 52. Rom. v. 8, 10.for they that take the Sword shall perish by the Sword. Some also add the Example of CHRIST himself, who died for his Enemies.
Amongst the primitive Christians there are some, who indeed did not disallow of publick Wars, but believed Self-defence between private Persons to be unlawful. I have already cited some Passages of St. Ambrose, in favour of the Innocence of War: We find in St. Austin many more on that Subject, and more clear, which every Body knows. Yet the same St. Ambrose said,1Perhaps CHRIST therefore said to Peter, upon his shewing him two Swords, It is enough; as if it had been lawful to (the Time of) the Gospel, to make Use of the Sword; that the Doctrine of Equity might be in the Law, and the Perfection of Goodness in the Gospel. And in another Place,2A Christian, tho’ he be attacked by a Highwayman, is not to strike him again, lest in defending himself he offend against Piety. And St. Austin,3I do not dislike that Law, which allows those (Robbers, and other violent Aggressors) to be killed; but how I shall defend them who kill them, I know not. And again,4I do not approve of the Maxim of killing him, by whom one is apprehensive of being killed one’s self; unless he happen to be a Soldier, or publick Officer, so that he does not do it for himself, but for others, by Vertue of a lawful Authority. And it plainly appears, that St. Basil was of the same Mind, from his5 second Epistle to Amphilochius.
But the contrary Opinion, as it is more common, so it seems to me more reasonable, that we are not obliged to such a Patience; for we are commanded in the Gospel to love our Neighbours as ourselves, not before ourselves; nay, when an equal Danger threatens us, we are not forbid to take Care of ourselves6 before others; as we have already shewn from the Authority of St. Paul, explaining the Rule of Beneficence. Perhaps some one may object, and say, tho’ I may prefer my own Good before that of my Neighbour, yet this holds not in Things unequal; wherefore I ought rather to part with my own Life, than suffer the Aggressor to fall into eternal Damnation. But it may be answered, that the Person assaulted may also stand in Need of Time to repent, or may reasonably think so; and that the Aggressor may likewise before his Death have some Time left him to repent.7 Besides in moral Judgment, that Danger ought not to be regarded<56> into which a Man throws himself, and from which he may deliver himself.
It is probable at least, that some of the Apostles wore Swords in Travelling, in the Sight, and with the Knowledge of our Saviour, during the whole Time they accompanied him, which8Josephus informs us, other Galileans also did in their Journey from their own Country to Jerusalem, (the Roads being much infested with Highwaymen) and who also tells us the same of the Essenes, the most quiet and peaceable of all Men. Hence it came to pass, that when CHRIST told his Disciples, such a Time was at hand, that they should sell even their Garments to buy Swords,Luke xxii. 36. the Apostles presently answered, that there were two Swords in their Company, and in that Company there were none but the Apostles. Besides, what CHRIST himself then said, tho’ indeed it was not a Precept, but a proverbial Speech, declaring that most grievous Dangers were at hand; (as the Opposition of the first Time, which was safe and prosperous, plainly shews, Ver. 35.) seems however to allude to a common Practice, a Practice which the Apostles looked on as innocent.
Matt. v. 39.Now, as9Cicero very rightly says, Why should it be permitted to wear a Sword, if it were not permitted to use it? But as to that Passage, Resist not him that injures you, it is not more universal than that which follows, Give to every one that asketh; which yet admits of an Exception, provided we do not too much incommode ourselves. Nay, there is nothing added to that Precept concerning giving, which intimates the Restriction; which is deduced only from the Rules of Equity; where as the Prohibition of Resistance has its Explication adjoined, by the Instance of a Box on the Ear; which shews that we are only obliged to suffer without resisting, when the Injury offered us is as slight as a Box on the Ear, or something like it; for otherwise it would have been more natural to have said, Resist not him that injures thee, but sacrifice thy Life rather than defend thyself by Force.
In the Words to the Romans, Avenge not yourselves, the Word ἐκδικει̑ν does not signify to defend but to revenge; as Judith i. 12. ii. 1. Luke xviii. 7, 8. xxi. 22. 2 Thess. i. 8. 1 Pet. ii. 14. Rom. xiii. 4. 1 Thess. iv. 6. And this the very Connexion of the Words plainly shews, for the Words going before are Render to no Man Evil for Evil; but this is the Description of Revenge, not of Defence. St. Paul also supports his Exhortation from that Place of Deuteronomy, Vengeance is mine, I will repay it: Where ’tis in the Hebrewלךכקם, which in its proper and natural Sense signifies Vengeance; and it is evident, Self-Defence cannot be meant in that Place.
Now what was said to St. Peter, does indeed contain a Prohibition to use the Sword, but not in the Cause of Defence; for he had no Need to defend himself: CHRIST had already said concerning his Disciples, Suffer these to go away;John xviii. 8, 9 and this, That the Saying might be fulfilled which he spake, of those thou hast given me I have left none. Nor was it necessary to defend CHRIST; for he would not be defended. Therefore he gives this Reason in St. John for forbidding it, The Cup which my Father hath given me,Ver. 11.shall I not drink it? And he says in St. Matthew, How then should the Scriptures be fulfilled, that thus it must be? St. Peter being then of a fiery Temper, thought of Revenge, and not of Defence. Besides, he would have taken up Arms against them who came with publick Authority, which whether it be lawful in any Case to resist, is a particular Question, that shall be handled in its proper Place. But what CHRIST also adds, All they that take the Sword, shall perish by the Sword; is either a proverbial Saying, which signifies, that Blood causes Blood; and therefore, that the Use of Arms is never free from Danger: Or, according to the Opinion of Origen, Theophylact, Titus, and Euthy<57>nius, it shews, that we should not in croach upon GOD’s Right, by anticipating the Vengeance which He, in his own due Time, will fully requite.Rev. xiii. 10 In which Sense precisely, it is said, He that killeth with the Sword, shall be killed by the Sword: Here is the Patience and Faith of the Saints. With which agrees that of Tertullian,10GOD is a fit Depository of thy Patience; if thou layest thy Injuries in his Hand, he is thy Avenger; if thy Losses, he is thy Surety; if thy Grief, he is thy Physician; if thy Death, he is thy Reviver: What ought not Patience to do, that has GOD for its Debtor? Moreover, in these Words of CHRIST there seems to be included, a Prophecy of those Punishments which the Sword of the Romans would take of the Blood-thirsty Jews.
As to the Example of CHRIST, who is said to have died for his Enemies, it may be answered; that all CHRIST’s Actions were indeed full of Virtue, that we may laudably imitate them, as far as ’tis possible; and that Imitation will certainly be rewarded; but yet they are not all such, as either result from an Obedience to an indispensible Law, or constitute a Law to us. For that CHRIST died for his Enemies, and the Ungodly, he did it not by any Law, but as it were by a special Covenant and Agreement with the Father;Isa. liii. 10. who, upon his doing it, did not only promise him the most exalted Glory, but also a People that should endure forever.Rom. v. 7. Besides, this Fact of CHRIST was, as it were, singular, of which we can hardly find any Example; as St. Paul shews: And CHRIST himself commands us to expose our Life to Danger, not for every one, but for our Brethren,11 who profess the Christian Religion.1 John iii. 16.
In fine, the Passages quoted from Christian Doctors, either seem to give an Advice of extraordinary Perfection, rather than to establish an express Command; or contain only the Opinion of some private Persons. For in those most antient Canons called Apostolical, he only was to have been12 excommunicated, who with the first Blow killed his Adversary in a Quarrel, through an13Excess of Passion. And St. Austin himself, whom we quoted before on the other Side, seems yet to approve14 of this Opinion.
IV.Publick War divided into that which is solemn, and that which is not solemn.IV. Publick Wars are either1Solemn, according to the Law of Nations, or not solemn: What I here term Solemn is generally called Lawful, or made in Form, in the same Sense as a Will is termed Lawful, in2 Opposition to a Codicil; or a Mar<58>riage Lawful, in Opposition of the3Cohabitation of Slaves:4 Not because it is not allowed a Man, if he pleases, to make a Codicil, and a Slave to cohabit with a Woman; but because a Will, and a Marriage in Form, have5 some peculiar Effects, by the Civil Law; which it is convenient to observe; for many, misunderstanding the Word Lawful, think all Wars are condemned as unjust and unwarrantable, to which that Epithet does not agree. Two Things then are requisite to make a War solemn by the Law of Nations. First, that it be made on both Sides, by the Authority of those that have the Sovereign Power in the State: And then, that it be accompanied with some Formalities; of which we shall treat in its proper Place. These Conditions are equally necessary, so that if the one be wanting, the other is needless.
But a publick War not Solemn, may be made both without any Formality, and against mere private Persons, and by the Authority of any Magistrate whatever. And indeed if we consider the thing without respect to the Civil Law, every Ma<59>gistrate6 seems to have as much Right, in case of Resistance, to take up Arms in order to execute his Jurisdiction, as to defend the People committed to his Protection. But since by War the whole State is endangered, therefore it is provided, by the Laws of almost all Nations, that it be undertaken only by the Order or with the Approbation of the Sovereign. There is such a Law in7Plato’s last Book de Legibus. And by the Roman Law he was reckoned8 guilty of High Treason, who without Commission from the Prince presumed to make War, list Soldiers, or raise an Army. And the Cornelian Law,9 enacted by L. Cornelius Sylla, says, without Commission from the People. In the Code of Justinian, there is a Constitution extant, made by Valentinian and Valens, thus,10Let no Man use any Sort of Arms without our Knowledge and Permission. According to St. Austin,11 natural Order and the Peace of Mankind require, that the Matter should be so regulated in every State. This Law however ought to be understood with some Restriction, according to the Rules of Equity, as every Maxim is, however general the Terms may be in which it is expressed.
Franc. Victoria, De Jure Belli, n. 9. Molin. Disp. c. 6. Idem Victoria. Bartol. in Leg. Ex hoc jure Digest. de Just. & Jure. Bartol. de Repraes. 3. principali ad secund. n. 6. Mart. Laud. de Bello, Qu. 2. Livy. 1. 24.First then, It cannot be doubted, but that it is lawful12 for him who has any Jurisdiction, to reduce to their Duty, by his Officers, a Few who are disobedient; provided it requires not great Force to do it, nor endangers the State. Again, If the Danger be so pressing, that Time will not allow to consult the Sovereign, here also Necessity grants an Exception.13L. Pinarius, Governor of Enna, a Sicilian Garrison, presuming on this Right, upon certain Information that the Townsmen designed to Revolt to the Carthaginians, put them all to the Sword, and so preserved the Place. Franciscus de Victoria has pretended to transfer the<60> Right of taking up Arms to the Inhabitants of a Town, even without such a Case of Necessity, in order to have Satisfaction for those Injuries, which the Prince neglects to revenge; but his Opinion is justly rejected by others.
V.Whether a War made by the Authority of a Magistrate that has not Supreme Power be publick, and when?V. But Lawyers do not agree, whether in those Cases wherein it is allowed that inferior Magistrates have a Right to take up Arms, such a War ought to be called Publick; some affirm, and others deny it. Indeed, if by Publick we mean only that which is done by Vertue of a Magistrate’s Power, no doubt but such Wars are publick; and therefore, they that in such a Case resist the Magistrate, are liable to the Punishments due to those that rebel against their Superiors.Ayala de Jure Belli, I. 1. c. 2. n. 7. Sylv. verbo Bellum, n. 2. ibi. sufficit etiam. Innocent. C. olim de Restit. spol. n. 8 & C. sicut de Jure jurando, n. 5. Panormit. ib. Bartol. ad Leg. Hostes, D. de Captivitate. Livy, ubi sup. Victor. n. 29. Cajet. Sec. qu. 40. Art. 1. Sylv. verbo Bellum. p. 1. n. 2. Lorca, Disp. 50. n. 12. But if Publick be taken in a higher Sense, for that which is Solemn, as without Dispute it is often taken, they are not publick Wars; because, to render the Idea compleat in that Sense, there must be an express Resolution of the Sovereign, and several other Circumstances. It would be in vain to object, that in such Kind of Quarrels, the Goods of the Rebels1 are taken, and given to the Soldiers. For that is not so peculiar to a solemn War, as that it may not also be done in any other.
But it may happen, that in a very large State, the inferior Powers2 may have Authority granted them to begin a War; which, if so, then the War may be reputed as made by the Authority of the Sovereign Power: For he that gives to another the Right of doing a Thing, is esteemed the Author of it.
But it is more difficult to decide, whether, if such an Authority be not granted, the bare Conjecture of the Sovereign’s Will be sufficient? For my Part I cannot think it is: For it is not enough to foresee what the Will of the Sovereign would be, if he were consulted in this Case; but it must rather be considered, what a Prince would have done without being advised with, where the Matter will allow Time, and when the Affair is doubtful, if a Law were thereupon to be made: Fortho’the Reason which determines a Sovereign to require that his Orders should be waited for, may in such or such a Case3 cease, when particularly considered; yet the same Reason, when taken generally, always subsists; which is, to prevent the Dangers to which the State would inevitably be exposed, if every Magistrate should pretend to judge of the Usefulness or Necessity of War.
Livy, 1. 38. Cap. 45, &c.Cneius Manlius was not therefore injuriously accused by his Lieutenants, because he had made War upon the Galatians, without the Order of the People of Rome; for tho’ the Galatians had supplied Antiochus with some Troops; yet, as Peace had been made with that Prince, it did not belong to Manlius, but to the People of Rome, to determine whether that Injury was to be revenged on the Galatians.4Cato would have had C. Caesar delivered up to the Germans, for making War on<61> them: I believe not so much in respect to Justice, as to free the City from the Fear of a Man that wanted to render himself absolute. For the Germans had assisted the Gauls, declared Enemies to the People of Rome, and therefore could have no Reason to complain of any Wrong done them, if the Romans had just Cause to make War against the Gauls. But Caesar ought to have been contented with beating the Germans out of Gaul, the Province appointed to him, and not to have pushed the War on the Germans in their own Country, especially when there was no Danger to be feared from thence, without first consulting the People of Rome. The Germans therefore had no Right to demand Caesar to be delivered up to them, but the People of Rome had to punish him; as the Carthaginians plainly answered the Romans,5The Question is not whether Hannibal has besieged Saguntum by publick Authority, or by his own private Authority? But whether in that he has done you an Injury, or not? For it is our Business to see whether our Subject has acted by Vertue of our Orders, or of his own Head. The only Point to be decided between you and us, is, whether the Thing could be done without Prejudice to our Treaties?
6Cicero defends what Octavius and Decimus Brutus did, who made War upon Antony of their own Heads. But tho’ it were plain that Antony had deserved it,<62> they should have staid for the Decision of the Senate and Roman People, Whether it were for the Benefit of the State to have dissembled the Matter, or to have revenged it; to have come to Terms of Peace, or to have recourse to Arms? For no Body is obliged to pursue his own Right, which is often attended with the Hazard of Damage.
But then further, tho’ Antony had been declared an Enemy, the Senate and People of Rome should have been allowed to consider, whom to employ as Generals to command in that War: Thus the Rhodians7 answered Cassius, when he desired their Assistance by Vertue of a Treaty, that they would give it if the Senate ordered it. This Example, (of Cicero’s Apology) and many more that one may meet with, ought to teach us, not to approve of every Thing that is said by the most famous Authors: For they often reason according to the Circumstances of the Times, and often according to their own Passions; fitting, τῷ πέτρῳ στάθμην, the Line to the Stone, or the Rule of Equity to Things, and not Things to the Rule of Equity. Wherefore we must endeavour in the Examination of such Matters, to use an unbiassed Judgment, and not rashly draw those Things into Example, which may be rather excused than commended, in which respect we often fatally err.
Since then, as we have said, a publick War ought not to be made, but by the Authority of the Sovereign; for the understanding both this Affair, and the Question concerning a Solemn War, and several other Things that depend upon it, it will be necessary to be thoroughly in formed, what this Sovereignty is, and in whom it resides; and so much the more, because learned Men in our Age, each of them handling this Argument rather according to the present Interest of the Affairs of his Country, than according to Truth, have made that which was of itself not very clear, much more perplexed.
VI.In what Things the Civil Power consists.VI. The Moral Power then of governing a State, which uses to be called the Civil Power, Thucydides describes by three Things, where he calls a State that is really so,1 A Body that has its own Laws, Magistrates,2and Tribunals. Aristotle divides the Administration of the Government into three Parts.3 1. Consultation about publick Affairs. 2. The Establishment of Magistrates. 3. Judgments. To the first he refers the Power of making War or Peace, of concluding or breaking Treaties and Alliances, of enacting or repealing Laws; to which he adds, the inflicting of Death, Banishment, Confiscation of Goods, and the Punishment of Peculation and Extortion: That is, in my Opinion, the Judgments that relate to publick Crimes; whereas, in the third Class, by Judgments he means those that concern Crimes committed directly against private Persons. Dionysius Halicarnassensis chiefly takes Notice of these4 three Things, 1 st, The Right to create Magistrates. 2 dly, The Right to5 make Laws and repeal them. 3 dly, The Right of making Peace or War. In another Place he adds, the Right of Judging as a6 <63> Fourth; and again, elsewhere,7 the Right of Regulating the Affairs of Religion, and of calling Assemblies.
But if any one would divide it right, he may easily find all Things relating to it; so as that nothing may be wanting or superfluous. For he that governs a State, does it either by himself or by another. What he does himself respects either general Affairs or particular; what concerns general Affairs relates to the making or repealing of Laws; which extends as well to sacred Things (as far as he has a Right to meddle in them) as to profane. Aristotle calls this Ἀρχιτεκτονικὴ, the8chief Art of Government. The Particular Affairs are either directly publick or private, but considered as they relate to the publick Good. Those which are directly publick, concern either certain Actions, as the making of Peace, War, Treaties, Alliances; or certain Things, as Taxes, and such like, in which is comprehended that9 eminent Dominion which a State has over its Subjects, and their Goods, for the publick Use. Aristotle calls this Art by the general10 Name Πολιτικὴ, Political, and by another (Βουλευτικὴ) that signifies the Art of Deliberating. Private Affairs are here the Differences of private Persons, so far as the Repose of the Society requires the Decision of them by publick Authority: And this Art Aristotle calls11 Δικαστικὴ, Judicial. Those Things which are dispatched by another, are either done by Magistrates, or other Ministers, among whom we may put Embassadors. In these then consists the Civil Power.
VII.What Power is supreme.VII. That is called Supreme, whose Acts are not subject to another’s Power, so that they cannot be made void by any other human Will. When1 I say, by any other, I exclude the Sovereign himself, who may change his own Will, as also his Successor, who enjoys the same Right,Cacheranus Decis Pedem. 139. n. 6. and consequently, has the same Power, and no other. Let us then see what this Sovereign Power may have for its Subject. The Subject then is either common or proper: As the Body is the common Subject of Sight, the Eye the proper; so the common Subject of Supreme Power is the State; which I have before called a perfect Society of Men.
We then exclude the Nations, who are brought under the Power of another People, as were the Roman Provinces; for those Nations are no longer a State, as we now use the Word, but the less considerable Members of a great State, as Slaves are the Members of a Family. Again it happens sometimes,Vict. de jure belli. n. 7. that divers People have one and the same Head, and yet each of those People make a compleat Society; for it is not in the moral Body, as ’tis in the natural, where one Head cannot belong to several Bodies; for there the same Person may be head, under a different Consideration, to several distinct Bodies; of which this is a certain Proof,2 that upon the Extinction of the reigning Family, the Sovereign Power reverts to each People. So it may also happen, that several States may be linked together in a most strict Alliance, and make a3 Compound, as Strabo more4 than once calls it; and yet each of them continue to be a perfect State, which is observed both by others, and by5Aristotle in several Places.
The State then is, in the Sense I have just mentioned, the common Subject of Sovereignty. The proper Subject is one or more Persons, according to the Laws<64> and Customs of each Nation, Ἡπρώτη ἀρχὴ, the first Power of the State, in Galen, Lib. 6. de placitis, Hyppoc. & Plat.
VIII.The Opinion refuted which holds that the supreme Power is always in the People, and the Arguments answered.VIII. 1. And here we must first reject their Opinion,1 who will have the Supreme Power to be always, and without Exception, in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds of People are fully possessed with it, everywise Man sees. I shall refute it with these Arguments. It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew2 and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal,Ex. xxi. 6. Instit. l. 1. tit. 3. de jure person. § 4. to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without reserving any Share of that Right to themselves? Neither should you say this is not to be presumed: For the Question here is not,Gail. de Arestis c. 6. n. 22, &c. what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers.3Either you must take the one with the other, or4refuse both, says the Comedian.
But as there are several Ways of Living, some better than others, and every one may chuse which he pleases of all those Sorts; so a People may chuse what Form of Government they please: Neither is the Right which the Sovereign has over his Subjects to be measured by this or that Form, of which divers Men have divers Opinions, but by the Extent of the Will5 of those who conferred it upon him.<65>
There may be many Causes why a People should renounce all Sovereignty in themselves, and yield it to another: As when they are upon the Brink of Ruin, and they can find no other Means to save themselves; or being in great Want, they cannot otherwise be supported. For if the Campani formerly, obliged by Necessity, submitted themselves to the Romans in this Form,6We yield up, O ye Senators, the People of Campania, and the City of Capua, our Fields, Temples, and all that we have, both Divine and Human, into your Power.7 And some People, when they offered to submit themselves to the Power of the Romans, were refused, as8Appian relates: What hinders, but that any People may, after the9 same Manner, yield up themselves to one powerful Prince. We read in Virgil,
It may also happen, that a Master of a Family having large Possessions, will suffer no Body to dwell in them upon any other Condition; or one may have a great many Slaves, and make them free, upon Condition of acknowledging him for their Sovereign, and paying some Taxes: Of which we have many Instances. Tacitus speaks thus of the German Slaves,10Every one has his Dwelling, and governs his own House. The Master demands of him, as of a Farmer, a certain Proportion of Corn, Cattle, or Stuffs; after which the Slave is under no Obligation.
Besides, as Aristotle said,11 some Men are naturally Slaves, that is, turned for Slavery. And some Nations also are of such a Temper, that they know better how to obey than to command; which the Cappadocians seem to have been sensible of, when being offered their Freedom by the Romans, they preferred living under a King,Strabo l. xii 815. Ed. Amst. (540 Paris.) declaring that they could not live without one. Thus Philostratous in the Life of Apollonius,12 It is a Folly to pretend to set the Thracians, Mysians, and Getae at Liberty, since they don’t like it.Justin xxxviii. cap. 2.
Moreover, the Examples of other Nations, who for many Ages13 lived happily under an arbitrary Government, may have influenced some.14 The Cities under<66> Eumenes, says Livy, would not have changed15 their Condition with any free State whatever. And sometimes the Situation of publick Affairs is such, that the State seems to be undone without Remedy,16 unless the People submit to the absolute Government of a single Person; which many17 wise Men thought to be the Case of the Roman Republick, in the Time of Augustus Caesar. For these and such like Reasons, it not only may happen, but often does, that Men submit themselves to the Government and Power of another, as Cicero18 observes in his second Book of Offices.
But now as Property, or Right to the Goods of an Enemy, may be acquired by a lawful War, the Word Lawful being taken in the Sense I before mentioned, so may also Civil Dominion, or an absolute Right to command and govern the Enemy. What I have said, does not tend solely to maintain the Sovereign Authority of a Monarch, in Places where it is established; for there is the same Right, and the same Reason, for that of the Nobles, who govern a State exclusive of the People. Not even a Commonwealth was ever19 found so popular, but that those who were very poor, or Strangers, the Women and young Folks, were excluded from publick Councils. There are also some People that have other20 Peo-<67>ple under them, who are no less subject to them than if they were under Kings. Whence arose that Question,21Are the Collatine People in their own Power? And when the Campani had delivered themselves up to the Romans, they22 are said to have passed under a foreign Dominion. Liv. 1. 26. c. 24 xxxviii. c. 3. xxxii. c. 33. xlv. c. 25. As Acarnania and Amphilochia are said to have been under the Power of the Aetolians: Peraea and Caunus under that of the Rhodians. Pydna was given by Philip to the Olynthians. And those Towns which had been under the Spartans,Strab. xiv. Diod. xvi. when they were delivered from their Government, were called Eleutherolacones, (freed Laconians). The City Cotyora is said to have belonged to the People of Sinope, in Xenophon. Nice in Italy was adjudged to the People of Marseilles, in Strabo:Paus. I. iii. Exp. Cyri I. v. Strab. I. iv. —v. And the Island of Pithecusa to the Neapolitans. So we read in Frontinus, that the Town Calatia was adjudged to the Colony of Capua, Caudium to the Colony of Beneventum, with their Territories. Otho gave the Cities of the Moors to23 the Province of Boetica, as it is in Tacitus. All which were absolutely void, if we allow, that the Right of Government is always at the Discretion and Will of the Persons governed.
But both sacred and profane History do testify, that there are some Kings who do not depend on the People, considered even as a Body, If thou shalt say, (said GOD to the Israelites) I will set a King over me.Deut xvii. 14. 1 Sam. viii. 4. 9 — ix. 16. —x.1. — xv. 1. 2 Sam. xv. 2 1 Kings iv. 1. Ps. cxliv. 2. Luke xxii. 25 And to Samuel, Shew them the Manner of the24King that is to reign over them. Hence the King is said to be anointed over the People; and over the Inheritance of the LORD; and over Israel. Solomon is called King over all Israel. So David thanks GOD, that he had subdued the People under him: And CHRIST says, The Kings of the Gentiles exercise Lordship over them. That Passage of Horace is well known,
Formidable Kings have Dominion over their own People; but Kings themselves are subject to the Dominion of Jupiter.
Seneca thus describes the three Forms of Government,26Sometimes we have Reason to fear the People; sometimes the Persons of Credit in a Council, when the greatest Part of Publick Affairs are in the Hands of that Council; and sometimes one single Person, who is invested with the Power of the People, and over the People. Such are those who27Plutarch says, Not only command according to the Laws, but even command the Laws themselves. And in Herodotus, Otanes thus describes Monarchy, A Power to command as one pleases, without being accountable to any Person. And Dion Prusaeensis describes Royalty: So to govern, as not to give Account to another. Pausanias to the Messenians, opposes regal Government to that which must give Account of its Actions.
Aristotle says, there are some Kings who have the same Power as the whole Nation has in another Place over their Persons and Goods. So after the chief Men of Rome began to assume to themselves the Regal Power, the28 People are said to have<68> bestowed all their Dominion upon them, and Power even over themselves; as29Theophilus expounds it. Hence is that Saying of Marcus Antoninus the Philosopher,30No one but GOD only can be the Judge of a Prince; and31Dion, B. 53. of such a Prince, He is free, Master of himself, and of the Laws, so that he does what he pleases, and what he doth not please he need not do. Such a Kingdom was that of the32Inachidae antiently in Greece at Argos; for in the Argive Tragedy of Suppliants, the People thus address the King in Aeschylus.33Sir, you are the City and the Publick; you are an independent Judge. Seated on your Throne, as upon an Altar, you alone govern all by your absolute Commands.
Quite otherwise than King Theseus himself speaks of the State of Athens in34Euripides, This City is not governed by a single Person, but it is a free City, where the People reign, by establishing new Magistrates every Year, as they think fit. For Theseus, as35Plutarch explains it, was only their General in Time of War, and the Guardian of their Laws; in other Things upon36 a Level with the Citizens. Hence it comes to pass, that Kings who are accountable to their People, are said to be called Kings improperly. So after Lycurgus, and especially after the Ephori were constituted, the Lacedemonian Kings are said by37Poly-<69>bius,38Plutarch, and39Cornelius Nepos, to be Kings only in Name, and not in Reality; which Example others also followed in Greece. Thus40Pausanias says (of the Argives) to the Corinthians, The Argives, of old great Lovers of Equality and Liberty, have limited the Regal Power as much as possible; so that they have left to the Sons and Posterity of Cisus, nothing but the bare Name of King. So also Plutarch41 observes, That the Senate had Power to judge Kings among the Cumaeans.42Aristotle denies that such Kingdoms constitute any proper Form of Government, because they do but make Part of an Aristocratical or Democratical State.
Nay, even among Nations, which are not always under Kings, we meet with some Instances of a Sort of temporary Monarchy, which is not subject to the People. Such was the Power of the43Amymones among the Cnidians, and of the Dictators44 in the first Ages at Rome, from whom there was no Appeal to the People; whence a Dictator’s Edict was held as sacred, says45Livy. Neither was there any46 Security but in a careful Obedience. And47Cicero, that the Dictatorship had possessed itself of the whole Force of the Royal Authority.
The Arguments which are brought for the other Opinion are easily answered.1Arg. For first, Whereas it is alledged, that the Person constituting, must be superior to the Person constituted; it is only true in regard to those Powers whose Effect depends always upon the Will of their Author; but not in regard to a Power which, tho’ at first one was at Liberty to confer it or not, cannot afterwards be revoked by him that has once conferred it. As when a Woman chuses herself a Husband, whom she must from that Time always obey. Valentinian told his Soldiers, who had made him Emperor, when they desired something which he did not like,48It was indeed in your Power to chuse me your Emperor, O ye Soldiers!<70> But after you have chosen me, what you request depends on me, and not on you. It is your Duty, as Subjects, to obey, and mine to consider what is proper to be done. Neither is that true which is supposed, that all Kings are constituted by the People. The contrary sufficiently appears from the Examples I have already alledged, of a Master of a Family that receives Strangers into his Lands, upon Condition of Subjection; and of Nations reduced under one’s Dominion by the Right of War.
2Arg.2. Another Argument they fetch from a Saying of the Philosophers, that all Government was ordained for the Sake of the Governed, not of the Governor; whence it follows, as they pretend, that the Governed are superior to the Governors, since the End is more noble than the Means. But neither is that universally true, that all Government was designed for the Sake of the Governed; for some Powers are of themselves established for the Sake of the Governor,49 as that of a Master over his Slave: For there the Benefit of the Slave is extrinsical and accidental: As the Gain of the Physician has no Connection with the Art of Physick. There are other Powers that tend to the mutual Advantage of him who commands, and of him that obeys, as the Authority of a Husband over his Wife. So that there may be some Civil Governments established for the Benefit of the Sovereign, as the Kingdoms which a Prince acquires by the Right of Conquest; but are not therefore to be reputed Tyrannical; for Tyranny, as the Word is50 now taken, implies Injustice. Some Governments may also respect the Benefit as well of the Governor as of the Governed; as when a People, unable to defend themselves, submit to the Dominion of a powerful Prince. I do not deny but that the Good of the Subject is the direct End proposed in the Establishment of most Civil Governments; and that it is true, which51Cicero said from52Herodotus, and Herodotus from53Hesiod, That Kings were constituted to administer Justice to the People. But it does not therefore follow, as they infer, that the People are superior to the King: For Guardianship was undoubtedly designed for the Benefit of the Pupil; and yet it gives to the Guardian54 a Power over the Pupil. Neither does it avail, that a Guardian may be removed if he does not manage his Charge well; and therefore there ought to be the same Power over a King. For as to a Guardian, it is to be considered, that he has a Power superior to him: But in Civil Governments, because there must be some dernier Resort, it must be fixed either in one Person, or in an Assembly; whose Faults, because they have no superior Judge,Jer. xxx. 12. GOD declares, that he takes Cognizance of; who either punishes them, if there be a Necessity for it; or tolerates them, for the Chastisement or Trial of a People.
It is admirably said of55Tacitus, You must bear with the Luxury or Covetousness of Princes, as you do Barrenness, Storms, and the other Inconveniences of Nature: There will be Faults, as long as there are Men; but the Evil is not perpetual, and<71> is compensated by the Good which happens from Time to Time. And56M. Aurelius said, the Magistrates are to judge of private Persons, Princes of Magistrates, and GOD of Princes. There is a remarkable Place in Gregory of Tours, where that Bishop thus57 addresses the King of France, If any one of us (O King!) should transgress the Bounds of Justice, he may be punished by you: But if you yourself should offend, Who shall call you to Account? When we make Representations to you, if you please, you hear us; but if you will not, who shall condemn you? There is none, but he who has declared himself to be Justice itself. Among the Maxims of the Essenes, Porphyry mentions this,58That it is not without a particular Providence of GOD, that the Power of Commanding falls to the Lot of some Persons. And59Irenaeus says excellently, By whose Orders60Men are born; by his Command also are Kings ordained, proper for them who are governed by them. We have the same Thought in61 the Constitutions of Clement, You shall fear the King, knowing that he is chosen of GOD.
1 Kings xiv 6. 2 Kings xvii. 7, &c.Neither is it an Objection to what I have said, that we read of some People punished for the Offences of their Kings; for this does not happen, because they do not punish or62 restrain their King, but because they seem to give, at least a tacit Consent to his Vices; or perhaps, without respect to this, GOD may make use of that Sovereign Power which he has over the Life and Death of every Man, to chastise their King, in regard to whom it is a great Punishment to lose his Subjects.
IX.Mutual Subjection refuted.IX. There are others, who fancy to themselves a reciprocal Dependence between the King and the People; so that, according to them, the People ought to obey the King whilst he makes a good Use of his Power; but likewise, when he abuses it, he becomes in his Turn dependent on the People. Now if by what they say, they mean only, that our Duty to our Sovereign does not oblige us to do any Thing manifestly unjust, they say but the Truth; but this implies no Right to compel1 the King, or to command him. But suppose they had a Design to divide the Government with the King, (of which we shall say something2 hereafter) there ought to be Bounds assigned to the Power of each Party, according to the Difference of Places, Persons, or Affairs, that the Extent of their respective Jurisdictions might be easily discerned.<72>
But the Goodness or Badness of an Action, especially in Civil Concerns, which are liable to frequent and intricate Discussions, are not fit to distinguish those Limits; from whence would necessarily follow the utmost Confusion; because,3 under Pretence that an Action appeared Good or Bad, the King and People would each, by Vertue of their Power, assume to themselves the Cognizance of one and the same Thing; which Disorder, no Nation (as I know of) ever yet thought to introduce.
X.Cautions in judging of the Sovereign Power.X. Having confuted these Errors; it remains that we give some Cautions, in order to direct us how to judge rightly, to whom the Sovereign Power in every Nation belongs. Let this then be the first, That we be not deceived by the Ambiguity of Words, or the Shew of outward Things. For Example, Tho’ among the Latins, a Kingdom and a Principality are generally Opposites; as when Caesar said,1 the Father of Vercingetorix had obtained the Principality of Gaul, but was slain for aspiring to the Royalty: And when Piso, in Tacitus, said,2 that Germanicus was the Son of a Prince of the Romans, not of a Parthian King: And Suetonius,3 that Caligula wanted but little of changing the Ornaments of a Prince into those of a King: And Maroboduus is said in4Velleius not to have been contented with the Principality, which he possessed with the Consent of those that depended on him, but ambitiously to have affected the Regal Power.
Yet we see these two Words often confounded together; for the Spartan Chiefs descended from Hercules, after5 they were subjected to the Ephori, were yet called Kings (as we have6 seen above). And in antient Germany, there were some Kings, who, as Tacitus says,7 governed by the Deference paid to their Counsels, rather than by any Power they had of commanding. Livy relates,8 that Evander reigned more by the Esteem People had for him, than by his own Authority. Aristotle,9 and Polybius,10 and Diodorus,11 gave the Title of Kings to the Suffetes, or Judges of the Carthaginians: And Hanno is so called by Solinus.12Strabo13 speaks of Scepsis in Troas, that having incorporated the Milesians into the State, it formed itself into a Democracy, leaving the Name of King to the Descendants of their antient Kings, and something of the Dignity.<73>
The Roman Emperors, on the contrary, after they exercised openly, and without any Disguise, a most absolute monarchical Power, were nevertheless called Princes. There are also some Republicks, where the chief Magistrates14 are honoured with the Ensigns of Royalty.
On the other Side, the States of a Kingdom, that is, the Assembly of those who represent the People, divided into three Orders, according to Gunther,15Praelati, proceres, missisque potentibus Urbes. Prelates, Nobles, and Deputies of Towns. Those States, I say, in16 some Places, are only, as it were, the King’s Great Council, by whose Means the Complaints of the People, which the Members of his Privy-Council often conceal from him, come to his Ear; and the King has nevertheless a Power afterwards to ordain whatever he thinks fit, in regard to the Matters in Question. But in other Countries they have a Right to take Cognizance of the Actions of the Prince, and also to prescribe Laws, which shall oblige the Prince himself.
Many think, that in Order to know whether a Prince be Sovereign or not, we need only consider whether he mounts the Throne by Right of Succession, or by Means of Election; for according to them, successive Kingdoms only are Sovereign. But it is certain, that Maxim is not generally, and without Restriction, true. For Succession is not a Title that determines the Form of the Government, and the Extent of the Power of him that governs: It imports only a Continuation of the Rights of him, to whom one succeeds. When a Family is chosen to reign, the Right conferred upon it passes from Successor to Successor, with the same Power that the first Election had given, and no more. Among the Lacedemonians the Kingdom was Hereditary, even after the constituting of the Ephori. And of such a Kingdom, that is, of the chief Dignity of the State, Aristotle speaks,17 Τούτων τω̂ν Βασιλειω̂ν αἱ μὲν κατὰ γένος εἰσὶν, αἱ δὲ αἱρεταὶ. Of those Kingdoms; some are Hereditary, others Elective. The same Author,18 and Thucydides,19 and Dionysius20 of Halicarnassus, observe, that in the Times of the Heroes, most of the Kingdoms of Greece were so. On the contrary, the Roman Empire, even after all Power was taken from the Senate and People,21 was conferred by Election.
XI.The second Caution.XI. Another Caution may be this, We must distinguish between the Thing itself, and the Manner of enjoying it; which takes Place not only in Things corporeal, but also in incorporeal: For a Right of Passage, or Carriage through a Ground, is no less a Thing1 than the Ground itself.See Carolus Molinaeus on the Customs of Paris, tit. § 2. gl. 4 n. 16. But these some have by a full Right of Property, someby an usufructuary Right, and others by a temporary Right. Thus, amongst the Romans, the Dictator was Sovereign for a Time.2 The Generality of Kings,3 as well those who are first elected, as those who succeed to them in the Order established by the Laws, enjoy the Sovereign Power by an usufructuary Right. But there are some Kings, who possess the Crown by a full Right of Property,4 as those who have acquired the Sovereignty by Right of <74> Conquest, or those to whom a People, in order to prevent greater Mischief, have submitted without Conditions. Neither can I agree with those,5 who say the Roman Dictator had not the Sovereign Power, because it was not perpetual: For the Nature of moral Things is known by their Operations, wherefore those Powers, which have the same Effects, should be called by the same Name.6 Now the<75> Dictator, during the whole Time of his Office,7 exercised all the Acts of civil Government, with as much Authority as the most absolute King; and nothing he had done could be annulled by any other Power. And the Continuance of a Thing alters not the Nature of it, though if the Question be concerning Dignity, which is generally called Majesty, doubtless he that has a perpetual Right, has a greater Majesty, than he that enjoys it but for a Time, because the Manner of holding adds to the Dignity. The same Thing may likewise be said of such, as during the Minority, Lunacy, or Captivity of their Kings, are appointed Regents of the King-<76>dom,8 so that they depend not on the People, and cannot be deprived of their Authority before the Time fixed by Law.
But it is otherwise with those who are invested with a precarious Power, and which may be at any Time recalled,See Procop. Vandalic. 1. 1. c. 9. as were the Kings of the ancient Vandals in Africk, and of the Goths in Spain, whom the People might9 depose, upon any Dislike. Whatever such a Prince does, may be abrogated by those who vested him with a Power so liable to Revocation; and consequently as the Exercise of his Authority has not the same Effects as the Acts of a true Sovereign, so neither is the Authority the same.
XII.Some Sovereign Powers held fully, with a Right of Alienation.XII. Against what I have said before, that some Governments are held in full Right of Propriety, that is, by way of Patrimony, some learned Men make this Objection, that Free-men are not to be barter’d away. But as there is a Difference between the regal Power, and that of a Master over his Slave; so likewise there is a Difference between civil Liberty,Fr. Hotoman. Quaest. Illustr. Qu. 1. and that which is personal: The Liberty of a private Person is one Thing, and that of the whole Body of the People another. For even the Stoicks1 acknowledge there is a kind of Servitude ἐν ὑποτάξει in Subjection; and in Holy Writ the Subjects of Kings are called their Servants.1 Sam. xxii. 17 2 Sam. x. 2. 1 Kings ix. 22. As then personal Liberty excludes the Dominion of a Master, so does civil Liberty exclude Royalty, and all manner of Sovereignty properly so called.2Livy thus opposes them, Before Men had tasted the Sweetness of Liberty, they desired a King. Again, It seemed a shameful Thing that the Peopleof Rome, when they served under Kings, were never attacked in War, nor besieged by an Enemy, but being a free People should be besieged by the Hetrurians; and in another Place, The People of Rome are not now under a King but at Liberty. And again in another Place, he opposes those Nations that were free, to them that lived under Kings; and3Cicero said Either the Kings should not have been expelled, or the People should have had their Liberty in Deed, and not in Words. And after them4Tacitus, The City of Rome was at first under Kings; but L. Brutus brought in Liberty, and the consular Government. And elsewhere, The Liberty of the Germans is more severe than the regal Power of Arsaces. And5Arrian Βασιλευ̑σι καὶ τη̑σι πόλεσιν ὅσα αὐτόνομα. To the Kings and free Cities, (those that live after their own Laws.) And Caecina in6Seneca, The regal<77> Thunderbolts are those whose Force affects either the Assembly of the States, or the chief Places of a free City: The Meaning whereof is that the State is threatened with a regal Power. So those Cilicians who were not under Kings were called Eleuthero Cilices,7free Cilicians. And8Strabo says of Amisus, (a City of Pontus) that it was sometimes free, and sometimes under Kings. And every where in the Roman Laws, that treat of War, and Judgments of9 Recovery, Foreigners are distinguished into10 Kings and free People. It is said even of those, who do not enjoy this publick Liberty, as well as of those who are deprived of personal Liberty, that they are not their own Masters; but that they belong to those on whom they depend. Hence that in11Livy, which Cities, which Lands, which Men were once under the Power of the Aetolians. And again,12Are the People of Collatia their own Master? The Argument then which is here used, is not to the Purpose, since13 the Question does not relate to personal but civil Liberty. But properly, when a People is alienated, it is not the Men themselves, but the perpetual Right of governing them, as they are a People. Thus when a Freed Man is assigned to one of his Patron’s14Children, the Freeman is not alienated, but the Right which one had over that Person is transferred.
And that is as weak, which alledges, that because a King conquers other Nations by the Blood and Sweat of his Subjects, therefore what he so conquers, should rather belong to them than to the Prince.15 For it is possible, that the King may maintain16 his Army out of his private Estate, or out of17 the Revenues of the Crown Lands. For, though a King has but an usufructuary Right to those Lands,<78> as he has to the Sovereignty over the People who have chosen him, yet are those Revenues properly his own: Just as, by the civil Law, when one is obliged to restore an Inheritance, the Incomes are not restored, because they are accounted to arise from18 the Thing itself, and not to make Part of the Inheritance. Therefore it may happen that a King may so enjoy a Government over19 some People in his own proper Right, that it may be in his Power even to alienate it; and we find in History20 many Instances of Sovereignty accompanied by that Right. Strabo says, That the Island Cythera over-against Taenarus21 did belong to Eurycles a Lacedemonian Prince, ἐν μερει̑ κτήσεως ἰδίας, in his own proper Right. So King Solomon gave to Hiram,1 Kings ix. 11. 12. (for so Philo Byblius, who translated the History of Sanchuniaton, calls him in Greek) King of the Phoenicians, twenty Cities, not of those that were inhabited by the Hebrews.Jos. xix. 27. For Cabul (which Name is given to those Cities) was seated without the Bounds of the Hebrews; but of those Cities, which some conquered Nations, Enemies to the Hebrews, had held to that Time, and were partly subdued by Solomon’s Father-in-Law, the King of Egypt, and given to him in Dowry with his Daughter, and partly conquered by Solomon himself. For it is plain, that those Cities were not at that Time inhabited by the Israelites, because when Hiram22 had restored them,2 Chr. viii. 2.Solomon planted Hebrew Colonies in them.
Thus we read, that Hercules having conquered the City of Sparta,23 gave the Sovereignty of it to Tyndareus, on Condition, that if Hercules left any Children of his own, he should restore it to them. So Amphipolis24 was given in Marriage Dowry to Acamas Son of Theseus; and25Agamemnon promises in Homer to give Achilles seven Cities. King Anaxagoras gave two Parts of his Kingdom to Melampus. And26Justin tells us of Darius, that he bequeathed by Will his Kingdom to Artaxerxes, and to Cyrus the Cities, of which he was Governor. Thus, the<79> Successors of Alexander the Great27 are to be considered as having succeeded him, every one in his allotted Part, in the full Right of Property, by Vertue whereof he governed those Nations, which had been formerly under the Persians, or else as having acquired that Sovereignty themselves, by Right of Conquest; therefore it is not to be wondered at, that they claimed to themselves the Right of Alienation.
When King Attalus,28 the Son of Eumenes, had made, by his Will, the People of Rome Heir to his Goods, they, under the Name of Goods, possessed themselves of his Kingdom. Of which Florus29 thus speaks, Therefore the Romans entering upon it as Heirs, reduced it into the Form of a Province, not by Force of Arms, but in a fairer Way, by Right of Inheritance.Appian Bell. Mithridat. & Bell. Civil. And afterwards, when Nicomedes, King of Bithynia, hadmade the People of Rome his Heir, they immediately reduced the Kingdom into the Form of a Province. And30Cicero, in his second Orationagainst Rullus, says thus, We have got a good Inheritance, the Kingdom of Bithynia. So that Part of Libya, called Cyrenaica, was left by King Apion,Eutrop. 1. 6. by Will, to the Romans. Tacitus, in his fourteenth Annal, mentions some Lands31 which formerly belonging to King Apion, were, together with his King-<80>dom, bequeathed to the Romans. And in32Cicero, Every Body knows that the Romans are become Masters of the Kingdom of Aegypt, by Vertue of the Will of the King of Alexandria. Mithridates, in Justin, speaking of Paphlagonia, says,33Which fell to his Father, not by Force, and the Superiority of his Arms, but by a testamentary Adoption. The same Author also relates,Lib. 42. c. 4. Strabo, 1. 12. Id. 1. 13.that Orodes King of Parthia, was a long while debating, to which of his Sons he should leave his Kingdom. And Polemo, Prince of the Tibarenians, (a People of Cappadocia) and of the Country adjoining, left his Wife Heiress of his Dominion; which also Mausolus had formerly done in Caria, tho’ he had several Brothers alive.
XIII.Some are held not so fully.XIII. But as to Kingdoms which were originally established by the full and free Consent of the People, I confess1 it cannot be presumed, that it was ever their Design to allow the King to alienate the Sovereignty. Wherefore what Crantzius observed in Unguinus,Hist. Dan. l. 2 cap. 4. as a Thing never heard of, that by his Will he had bequeathed Norway,2 we have no Reason to blame, since he might have in View the Customs of the antient Germans, amongst whom the Kings had no Power to alienate their States. For as to what is related of Charles the Great, Lewis the Pious, and also others afterwards among the Vandals and Hungarians, the testamentary Dispositions, which they made, were rather bare Recommendations to4 the People, who were to choose their Successors, than a true Alienation. And of Charles, Ado expressly remarks, that he much desired to have his Will5 confirmed by the chief Nobles of France.<81> The like is reported of Philip King of Macedon, that when he designed to disinherit his Son Perseus, and settle the Crown upon Antigonus, his Brother’s Son,6 he went over all the Cities of Macedon to recommend Antigonus to the Princes, as7Livy informs us. In Regard to what is said of Lewis the Pious, that he restored the City of Rome to Pope Paschal,8 it is nothing to the Purpose, since the French having received the Sovereignty over the City from the People of Rome, might well restore it to the same People, in the Person of him, who represented them, asbeing Chief of the first Order of the State.<82>
XIV.Some Power not supreme, yet fully held.XIV. But now, the Distinction we make between Sovereignty, and the Manner of holding it is so well founded, that not only the Generality of Sovereigns are not Masters of their States with a full Right of Property; but also there are several Powers not Sovereign, who have a full Right of Property over the Countries within their Jurisdiction;See Mariana on the Principality of Urgeti, Hist. whence it happens, that Marquisates and Earldoms are more easily sold, and bequeathed by Will, than Kingdoms.
Hisp. I. 12. c. 16.1 XV. Another Thing that proves the Reality of our Distinction, is the Manner in which the Regency of a Kingdom is regulated, during the Minority of the Heir to the Crown, or when the King is disabled by any Distemper from exercising the Functions of Government.XV.This appears from assigning Tutors and Guardians in Kingdoms. For in Kingdoms not Patrimonial, the Regency belongs to those, to whom the publick Laws, or upon their Deficiency, the Consent of the People shall consign it. But in Kingdoms Patrimonial,2 it belongs to<83> those whom the Father, or nearest Kindred shall chuse. Thus we see in the Kingdom of3Epirus, which had been founded by the Consent of the People,See Cothman, to 1. cons. 41. n. 11. Guardians were nominated by the People to their young King Aribas; and by the Nobles of4Macedon to the posthumous Son of Alexander the Great: But in Asia the Less, that was won by the Sword,Plut. de Amore Fratern.5Eumenes appointed his Brother Guardian to his Son Attalus: So did Hiero in Sicily nominate6 such as he thought fit to be Guardians to his Son Hieronymus.
But whether the King is Proprietor of every particular Spot of Ground in his Kingdom,Gen. xlvii. as the Kings of Aegypt, after the Times of Joseph, or as the Kings of India, according to Diodorus and Strabo, or whether he is not,Lib. 2. Lib. 15. this is extrinsick to Sovereignty, and has no Relation to the Nature of it: Thus there neither results from it another Form of Sovereignty, nor another Manner of holding it.
XVI.Sovereignty not lost by any Promise made of Things which belong not to the Law of God or NatureXVI. The third Observation is this, That1 Sovereignty is not less Sovereignty, tho’ the Sovereign at his Inauguration solemnly promises some Things to GOD, or to his Subjects, even such2 Things as respect the Government of the State. I do not here speak of the Observation of the natural and divine Law, or even of the Law of Nations, to which all Kings stand obliged, tho’ they have promised no-<84>thing; but of the Observation of certain Rules, to which they would not be obliged but by their Promise. The Truth of what I say appears by the Example of a Master of a Family, who has promised his Family something that regards the Direction of it: For tho’ he is bound to perform his Promise, yet he does not therefore cease to be the Head, and in some Manner, the Sovereign of his Family, as far as the End and Constitution of that little Society permits. A Husband likewise loses nothing of his Authority over his Wife, for having promised her somewhat, which he stands obliged to fulfill.
Yet I must confess, where such Promises are made, Sovereignty is thereby somewhat confined, whether the Obligation only concerns the Exercise of the Power, or3 falls directly on the Power itself.B. 2. ch. 11. In the former Case, whatever is done contrary to Promise, is unjust; because, as we shall shew elsewhere, every true Promise gives a Right to him to whom it is made.4 In the latter, the Act is unjust, and void at the same Time, through the Defect of Power. It does not however follow from thence, that the Prince who makes such Promises, depends on a Superior; for the Act is not made void in this Case, by a superior Authority, but by Right itself. Among the Persians their5 Monarch was, Ἀυτοκρατὴς καὶ ἀναπεύθυνος, absolute, and accountable to none, as Plutarch declares, and adored as6 an Image of the Divinity; nor, as it is in Justin,7 was he changed but by Death. He was a King that spoke thus to the Persian Nobility,8I have called you together, that none might think I have followed only my own Counsel, but remember it is your Duty to obey, rather than advise. And yet upon his Accession to the Crown he took an Oath, as9Xeno-<85>phon and10Diodorus Siculus observe; and it was not11 allowable for him to change the Laws that had been made in a certain Manner,Ch. vi. v. 8, 12, 15. as both Daniel’s History and12Plutarch in his Life of The mistocles inform us.13Diodorus Siculus too, B. xvii. and a long Time after,14Procopius in his first Book of the Persian War,15 where there is a remarkable Story to this purpose. Diodorus Siculus16 says the same Thing of the Kings of Aethiopia. The same Author tells us,17 that the Kings of Egypt, who doubtless exercised a Sovereign Authority no less than the other Eastern Kings, were obliged to observe many Things, which if they did not perform, they could not during their Lives be called to an Account; yet after their Deaths, their18 Memories might be arraigned, and being found guilty were refused solemn Burial; as19 the Bodies of wicked Princes amongst the ancient Hebrews,2 Chr. xxiv. 25 — xxviii. 27. were not interred in the Royal Sepulchres; by this wonderful Temperament, the Sacredness of sovereign Majesty was preserved, and yet their Kings were restrained from breaking their Engagements for fear of a future Condemnation.20Plutarch also<86> tells us in the Life of Pyrrhus, that the Kings of Epyrus were accustomed to take an Oath, that they would govern according to the Laws.
See an Example in Crantzius His. Suec. 1. 9.But what shall we say of Promises, accompanied by this Clause, that if the King breaks his Faith, he shall forfeit the Crown? Even in that Case, the Power does not cease to be supreme, but the Manner of holding it will be limited by such a Condition, and the Sovereignty will not be unlike a temporary one. Agatharchides said, a King of the Sabaeans, was ἀναπεύθυνος , the most absolute Prince in the World,Ap. Photium. L. 16. and yet if he were found without his own Palace, he might be stoned to Death; which Strabo also observes out of Artemidorus.
Thus, Lands held as Feoffments of Trust are no less our own,21 than if we possessed them with full Property; but yet they are capable of being lost. Such a commissory Clause may be added not only in Compacts between the People and the King, on whom they confer the sovereign Authority, but also in other Contracts. We see22 some Treaties of Alliance made on that Condition with neighbouring Nations: or even by those Treaties it is stipulated, that the Subjects23 shall not assist their King, nor obey him, if he violates his Engagements.
XVII.It may sometimes be divided.XVII. The fourth Observation is this, Though the sovereign Power be but one, and of itself undivided, consisting of those Parts above mentioned, with the Addition of Supremacy, that is, τῷ ἀνυπευθύνῳ, accountable to none, (1 ) yet it sometimes happens, that it is divided, either into subjective Parts, as they are called, or potential; (thatis, eitheramongst several Persons, who possess it jointly; or into several Parts, whereof one is in the Hands of one Person, and another in the Hands of another). Thus though there was but one Roman Empire, yet it2 often happened, that one ruled in the Eastern Part, and another in the Western; nay, and sometimes the Empire was divided among three. So also it may happen, that the People in chusing a King, may reserve certain Acts of Sovereignty to themselves, and confer others on the King absolutely and without Restriction. This however does not take place, (as I have shewed already) as often as the King is obliged by some Promise; but only then, when either3 the Partition is expressly made, (of which also we have treated above) or when the People being (as yet) free, shall require certain Things of the King, whom they are chusing, by way of a perpetual Ordinance; or if any Thing be added, whereby it is implied, that the King may be compelled or punished.4 For every Ordinance flows from a Superior, at least in Regard to what is ordered. And Compulsion is not always indeed an Act of a Superior, for naturally every Man has Power to compel his Debtor; but it is repugnant to the State of an Inferior; therefore from Compulsion there at least follows an Equality, and consequently a Division of the sovereign Power.<87>
Many alledge here a great Number of Inconveniencies, to which the State is exposed by this Partition of Sovereignty, which makes of it as it were a Body with two Heads; but in the Matter of civil Government, it is impossible to provide against all Inconveniencies; and we must judge of a Right, not by the Ideas that such or such a Person may form of what is best, but by the Will of him, that conferred that Right; as we have already observed. A very ancient Example of this Division is brought by Plato in his third Book of Laws. For the5Heraclidae (the Posterity of Hercules) being settled at Argos, Messena and Lacedemon, their Kings were obliged to govern according to Laws prescribed to them; and whilst they did so, the People were bound to continue the Kingdom to them and their Posterity, and not to suffer any one to take it from them. Moreover, besides the reciprocal Engagement of each People and their King, the three Kings6 stood engaged one to the other, the three Nations one to the other, and each King to the two neighbouring Nations, as also each Nation to the two neighbouring Kings; all of them together promising mutual Assistance.
XVIII.Ill inferred from this, that some Princes will have their Acts confirmed by the Senate.XVIII. But they are much mistaken, who suppose, because Kings will not allow some of their Acts to be of Force, till they are ratified by the Senate, or some other Assembly, that there is a Partition of Sovereignty. For whatever Acts are thus annulled, ought to be reputed as annulled by the King’s Authority, who by that Means (1 ) would take Care, that nothing deceitfully obtained of him, shall pass for his Will. Thus, Antiochus the third2 wrote to the Magistrates, that they should not obey him, if he commanded any Thing contrary to Law;See Boe¨rius ad c. 1. de Const. in Decret. and there is a Law of Constantine, which enacts that Orphans and Widows should not be forced to come to the Emperor’s Court for Judgment,3 even though the Emperor’s Order were produced. Wherefore this is like those Wills, which have this Clause added to them, that no Will hereafter made shall be of Force. For such a Clause implies, that a posterior Will would not proceed from the real Intent of the Testator. But as this Clause may be made void by4 an express Revocation, so may the Act of a Prince by his express Command, or any special Declaration of his posterior Will.
XIX.Some other Examples ill drawn.XIX. Neither will I here (in order to establish the Truth of what I have now said concerning the Partition of Sovereignty) make use of the Authority of Polybius, (1 ) who reckons the Roman Republick amongst those States, whose Government was mixt. For at the Time in which he wrote, the Government was merely2 popular, if we consider the Right and not the Manner of acting; since not only the Authority of the Senate, which he refers to Aristocracy, but also that of the<88> Consuls, which he compares to Monarchy, were both dependent on the People. What I have said of Polybius, I say likewise of other Authors, who, in writing on Politicks, may think it more agreeable to their Purpose, to regard the external Form of Government, and the Manner in which Affairs are commonly administered, than the Nature itself of Sovereignty.
XX.True Examples.XX. More to the Purpose is that of Aristotle who says (1 ) there are some Sorts of Royalty of a mixt Kind between an absolute Monarchy, 2 which he calls παμβασιλείαν, (the same is παντελὴς Μοναρχία in Sophocles’s Antigone; ἀυτοκρατὴς βασιλεία, καὶ ἀνυπεύθυνος, in Plutarch; ἐξουσία ἀυτοτελὴς, in Strabo) and a Kingdom like that of Lacedemon, which is only the first Dignity of the State; of such a Mixture we have an example (I think) in the Israelitish Kings, for without Doubt in most Things they ruled with an absolute Power. For the People desired a King,3such a one as the neighbouring Nations had; but the Power of the Eastern Kings was very absolute. Thus Aeschylus brings in Atossa speaking to the Persians of their King, οὐκ ὑπεύθυνος πόλει, not accountable to the State for his Actions.L. xxxvi. And that of4Virgil is well known, The Egyptians, Lydians, Parthians and Medians, have not a more profound Respect for their King. And in5Livy: The Syrians, and People of Asia are Men born to Slavery;6 <89> to which agrees with that of Apollonius in7Philostratus, Ἀσσύριοι καὶ Μη̑δοι τας τυραννίδας προσκυνου̑σι: The Assyrians, and Medes adore arbitrary Government; and that of Aristotle,Polit. 1. 3. c. 14. Hist. iv. οἱ περὶ τὴν Ἀσίαν ὑπομένουσι τὴν δεσποτικὴν ἀρχὴν, οὐδὲν δυσχεραίνοντες: The Asiaticks submit to despotick Power without Difficulty; and in Tacitus, that of Civilis Batavus to the Gauls, Let Syria and Asia serve, and the East accustomed to Kings. For at that Time there were Kings in Germany and Gaul; but as the same Author observes, they governed in a precarious Manner, more by a persuasive, than commanding Power.
We have also observed before, that the whole Hebrew Nation depended on their King; and Samuel describing the Right of Kings, fully shews, that there remained8 no Power in the People against the Injuries of their Kings, which the9 Ancients rightly gat her from that of the Psalmist. Against thee, thee only have I sinned.Ps. li. 5. Upon which St. Jerom descants; Because as a King, he feared no Man. And St. Ambrose, he was subject to no Laws, for Kings cannot transgress (against Men,) and being secure under their own Power, can be punished by no Law. Therefore he did not sin against Man, because he was accountable to no Man for his Actions. We may read the same in Isidore of Pelusium, in his 383 Epistle of the last Edition. I know indeed that the Jews themselves grant,10 that if their Kings offended against those Laws, which were written concerning the Duty of a King, they were scourged for it; but that sort of Punishment carried no Infamy with it, and the King suffered it voluntarily, to give thereby some Marks of his Repentance; nor was it a publick Officer that scourged him, but such a Person as he himself chose, and the Number of Stripes were regulated according to his own Pleasure.Deut. xxv. 9. As for the rest, their Kings were so free from all coactive Punishment, that the very Law<90> of Excalceation (the pulling off the Shoe) because it had something of Dishonour in it, did not affect them. The Sentence of the Hebrew Barnachman is still extant in the Sayings of the Rabbins, under the Title of Judges, No Creature judges the King, God only has that Power.
Yet notwithstanding all this, there were some Cases which,Ex. xxii. 8. Deut. i. 17. Ps. lxxxii. i. I suppose, the Kings had no Right to judge, and were referred to the11Sanhedrim (the Council) of 70 Elders, which being instituted by Moses at God’s Command, continued without any Interruption to the Days of Herod. Wherefore both Moses and David called the Judges12Gods,2 Chr. xix. 6, 8. 1 Chr. xxvi. 32 2 Chr. xix. II. and their Judgments13God’s Judgments. And the Judges are said to judge by the Authority of God, and not by the Authority of Men; and there is a plain Distinction made between the Things of God, and the Things of the King. Where by the Things of God, (as the most learned among the Jews interpret it) are meant, the Judgments, that were to be rendered14 according to the Law of God. I do not deny, but that the Kings of Judah did15 of themselves take Cognizance of some criminal Affairs, in which Maimonides prefers them16 to the Kings of the ten Tribes of Israel; and that plainly appears from many Examples, as well in Holy Writ, as in Hebrew Authors; but it seems that the Cognizance of some Causes was not allowed to them, as concerning Crimes committed by a Tribe, or by the High17 Priest,Luke xiii. 33. or by a Prophet; and this is plain from the Story of the Prophet Jeremy,Jer. xxxviii. 5. whom when the Princes demanded to put to Death, the King answered them, Behold he is in your Power, and the King can do18nothing against you, that is, in such sort of Affairs.Joseph. Antiq. Moreover, when any one had been accused before the Sanhedrim, upon any other Account whatsoever, it was not in the King’s Power to screen him from the Judgment of that Tribunal: and therefore Hyrcanus, finding there was no Way to hinder Herod from being tried, sought out Expedients to elude the Sentence.<91>
In Macedonia, those that descended from Caranus, as Callisthenes says in Arrianus:19 οὐ βίᾳ ἀλλὰ νόμῳ Μακεδόνων ἄρχοντες διετέλεσαν, reigned according to the Laws, and not by Force; and Curtius,20 in his fourth Book, though the Macedonians were used to regal Government, yet they lived in a greater Appearance of Liberty than other Nations: For the King himself could not judge of capital Crimes: And the same Author in the 6th Book,21By an ancient Custom amongst the Macedonians, the Army took Cognizance of capital Crimes, in Time of War; and the People in Time of Peace; so that in this Respect the Kings had no Power, but by the Way of Persuasion. There is also in another Place of the same Author another Instance of this Mixture,22The Macedonians decreed, that according to the Custom of their Nation, their King should never hunt on Foot, or without being attended by some of the Nobles and of his Favourites. And Tacitus of the Goths, They were under the Government of23Kings, who kept them a little more in Subjection, than those of other Nations in Germany, but so as not to leave them an entire Liberty. He had said before (in speaking of the Germans in general) that their Kings, who were only the chief or principal Men of the State,24 governed rather by Persuasion, than by their Authority. But elsewhere he describes an absolute Monarchy in these Words,25They (the Suiones) are under the Dominion of a Prince, whose Authority is absolute, and not precarious. And Eustathius describing the Republick of the Corcyreans,26 said it was a Mixture of regal and aristocratical27Government. I observe that there was something like this in the Times of the Roman Kings: For then almost all Affairs were managed by the King. Romulus (says28Tacitus) governed us as he pleased; and it is certain, that in the first Beginnings of the City, the Kings had all Power, says29Pomponius. Yet Dionysius Halicarnassensis30 affirms, that even at that very Time, some Things were reserved in the People. But if we had rather believe the Roman Authors, in some Cases, Appeals might be made from the King to the People, as Seneca31 gathers out of Cicero’s Book of a Commonwealth;<92> and also out of some pontifical Books, and Fenestella. Servius Tullius, who ascended the Throne through the Favour of the People, rather than by Vertue of a just Title, still more diminished the royal Authority; for, as Tacitus says, he enacted some Laws,32to which the Kings themselves were to submit. Wherefore no wonder if33Livy makes only this Difference between the Power of the first Consuls, and of the Kings, that the Consulship was but for one Year.
The like Mixture of Popular and Aristocratical Government was in Rome34 during an Interregnum, and in the Times of the first Consuls.35 For in some Things, and those of Moment, what the People commanded was of no Force,36 without the previous Approbation of the Senate. And there remained something of this Mixture even later, whilst the Power, as the same Livy37 says, was in the Hands of the Patricians, that is, of the Senate; and the Relief, or the Right of Opposition, in the Hands of the Tribunes, that is, of the People. But afterwards, the Power of the People being increased, the Consent of the Senate was no more than a mere Ceremony, and a vain Image of their antient Right; since the Senators ratified the Deliberations of the Assembly of the People, even before they knew what would be resolved in it, as Livy38 and Dionysius observe. To conclude, Isocrates pretends that the Government of Athens was, in the39 Time of Solon, A Democracy mixed with an Aristocracy. These Things being premised, let us examine some Questions, which are often produced on this Subject.
XXI.A Confederate on unequal Terms may have the Supreme Power.XXI. The first is, Whether a Power inferior to any other by Vertue of a Treaty of unequal Alliance, may have the Sovereignty?1 By unequal Alliance I mean, not such as is made between two Powers whose Strength is unequal; as when2 the City of Thebes in the Time of Pelopidas made a League with the King of Persia, and the Romans with the Massilians, and afterwards with King Masinissa;Justin, l. 43. c. 5. nor such as stipulates some transient Act, as when an Enemy is reconciled, upon paying the Charges of the War, or performing any other Thing once for all.Valer. Max. l. 5. c. 2. But I mean, when by the express Articles of the League, some lasting Preference is given from one to the other; or whereby the one is obliged to maintain the Sovereignty and Majesty of the other; as it was in the3 League between the Aetolians and the Romans, that is, to hinder any Attack on their Sovereignty, and to make<93> their Dignity, which is denoted by the Word Majesty, to be respected; Tacitus4 calls that the having a Reverence for the Roman Empire; which he thus explains, Tho’ placed on their Banks, and beyond the Limits of our Empire, yet in Mind and Will they act with us. So Florus,5Other People, who were not under the Dominion of the Romans, were sensible of their Grandeur, and reverenced the Conquerors of Nations.
6Andronicus Rhodius rightly observes after Aristotle, that this is proper to Friendship between Unequals, that the more Honour be given to the more powerful, and the more Assistance to the more weak.
To the Inequality in Question may be referred some of those Rights, which are now called Right of7 Protection, Right of8 Patronage, and a Right termed9Mundiburgium; as also that which10 Mother Cities had over their Colonies among the Grecians. For, as Thucydides11 says, those Colonies enjoyed the same Right of Liberty with the other Cities; but they owed a Reverence to the City whence they derived their Origin, and were obliged to render her τὰ γέρα τὰ νομιζόμενα, Respect, and certain Expressions of Honour.
Livy,12 concerning that antient League between the Romans, who were become absolute Masters of Alba, and the Latins descended from Alba, says, that in that Treaty the Romans were acknowledged Superiors. We know what Proculus replied to this Question, viz. that13 every People that does not depend on another is free, even tho’ by a Treaty of Alliance they are bound to maintain and reverence the Majesty of another People. If then a Nation bound by such a Treaty remains yet free, and not subjected to the Power of another, it follows, that it still retains its Sovereignty; and the same may be said of a King. For there is no Difference between a free People, and a King that is really so. And Proculus adds, that such a Clause inserted in a Treaty of Alliance, imports only that one Nation is superior, and not that the other is not free. The Word Superior ought to be understood here, not in regard to Power and Jurisdiction, (for he had said before, that the People inferior by the Treaty do not depend on the other, that are superior to them) but in regard to Reverence and Dignity, which the following<94> Words do explain by a proper Similitude. As we know (says he) our Clients to be free, tho’ they be not equal to us in Authority, Dignity, nor14every Right; so they that ought to maintain and respect the Majesty of our State, are to be considered as free.
Clients are under the Protection of their Patrons: So Nations, who are inferior by a Treaty of Alliance,15 are under the Protection of the People who are their Superior in Dignity. They are under their Protection, not under their Dominion; as Sylla speaks16 in Appian, on their Side, and not under their Subjection, as Livy17 says. And Cicero, in his second Book of Offices, speaking of those Times when Virtue reigned amongst the Romans, says,18They were the Protectors, and not the Masters of their Allies. To which agrees that of Scipio Africanus the Elder,19The People of Rome had rather engage Men by Kindness than by Fear, and gain foreign Nations by Protection and Alliance, than subject them by hard Bondages; and what Strabo20 relates of the Lacedemonians after the Coming of the Romans into Greece, they continued free, contributing nothing but what they were obliged to do as Friends and Allies. As private Protection takes not away personal Liberty, so publick Protection does not the Civil, which cannot be conceived without Sovereignty. Therefore you may see Livy opposes the State of those who21 are under the Protection of another People, to that of those who are under their Dominion. And Augustus threatned22Syllaeus King of the Arabians (as Josephus<95> relates) if he did not leave off injuring his Neighbours, he would take Care that he should be made a Subject of a Friend; which was the Condition of the Kings of Armenia, who, as Paetus writes to Vologeses,23 were under the Roman Jurisdiction, and consequently more Kings in Name than Reality; as were also the Kings of Cyprus, and some others, formerly Subjects24 to the Persian ὑποταγέντες, as Diodorus calls them.
Here may be objected what Proculus adds,25Those who are Members of confederate States are summoned to appear before us; they are tried at our Tribunals, and are punished by Vertue of the Sentence passed against them. But to make this more plain, we must know there are four Kinds of Differences, or Subjects of Complaint. First, If the Subjects of the King or State under Protection, are accused of having done any Thing contrary to the Treaty of Alliance. Secondly, If the King, or the States themselves be accused. Thirdly, If the Allies under the<96> Protection of the same King or State do quarrel among themselves. Fourthly, If Subjects complain of Injuries done by their Sovereign.
As to the First, If any Thing has been committed contrary to the Articles of Treaty, the King or State are obliged either to punish the Offender, or to deliver him up to them that are injured; which takes Place not only between unequal Confederates, but also equal; and even between such as are not engaged in any League, as we shall shew in26 another Place. The Sovereign is also obliged to endeavour to have Satisfaction made, which in Rome was called the27 Delegate’s Office. And Gallus Aelius in Festus says, A Recovery is when the Law decides between King and People, Nations and Foreign States; how Things may be restored by the Assistance of a Judge Delegate, how they may be recovered, and how private Mens Cases may be prosecuted among themselves. But one of the Confederates has no Right directly to seize or punish the Subject of another; therefore Decius Magius, a Campanian, being seized by Hannibal,Livy, l. 23. and sent to Cyrene, and from thence to Alexandria, declared, that he was seized by Hannibal contrary to the Articles of the League, and there upon was set at Liberty.
As to the second, The superior Ally has a Right to compel the inferior to stand to the Articles of the Treaty, and upon refusal to punish him. But neither is this peculiar to unequal Alliances; the same Thing takes Place between equal Allies. For, to have a Right to punish any one that has rendered himself guilty, it is sufficient that one is not subject to him; which28 shall be treated of elsewhere; wherefore Kings or Nations not allied, have also that Right in regard to one another.
As to the third Case, As in an equal Confederacy, Controversies are generally referred to29 a Convention of the Associates, who are not interested in the Affairs in Question, as we find was formerly practised amongst the Greeks, Latins, and Germans, or to the Decision of Arbitrators, or even to the Judgment of the chief of the Confederacy, as to a common Arbitrator: So in an unequal Confederacy, it is commonly agreed that the Things in Dispute shall be determined before him, who is the Head of the League. Therefore this does not imply any Jurisdiction; for even Kings have often their Causes tried before Judges appointed by themselves.
As to the fourth and last, Associates have no Right of Judging: When therefore Herod accused his own Sons before Augustus of certain Crimes, they replied,30You might have punished us by your own Right, both as a Father, and as a King. And when Hannibal was accused at Rome by some Carthaginians,31Scipio told the Senate, it did not belong to them to meddle in Affairs belonging to the Republick of Carthage. And ’tis in this32Aristotle says an Alliance differs from a State, that ’tis the Business of Allies to take Care that no Injuries be done by one to the others, but not that the Subjects of a confederate State do not injure one another.
It may again be objected, that Historians make use of the Word to command, in speaking of the Prerogatives of a superior Ally; and that to obey, in speaking of the Engagements of the inferior Ally. But this should not affect us; for this is, when the Things concern either the common Good of the Allies, or the private Advantage of the Superior in the League. As to Things of common Concern, when the Assembly does not sit, even in an equal League, he that is chosen Prince of the League נגיר ברית, Dan. xi. 22.) commonly commands the other Allies, as Agamemnon did the Grecian Princes; and afterwards the Lacedemonians did the Grecians, and after them the Athenians. We read in33Thucydides’s Oration of<97> the Corinthians. The Chiefs of an Alliance ought not to challenge any Advantage in what concerns their particular Interest: But it is just, that in the Administration of common Affairs they have the Preeminence. Isocrates says, that the antient Athenians, whilst they were the Chiefs of Greece,34were contented to take Care of common Affairs, but as for the Rest, they left to every People their Liberty: And elsewhere,35being persuaded that they ought to have the Command of the War, and not to rule over their Allies. And again, Managing their Affairs like Confederates, not despotically. The Latins express by the Word imperare, to command, that Right of the principal Ally; but the Greeks more modestly use the Term τάσσειν, to regulate. The Athenians having the Conduct of the War against the Persians, as36Thucydides relates it, did regulate which Cities should contribute Money against the Barbarians, and which Ships. So they who were sent from Rome into Greece,37 are said to be sent to regulate the State of the free Cities. But if he, who is only chief of the Confederacy, governs the common Affairs in the Manner I have now said, we must not wonder, that in an unequal Alliance, the superior Ally does the same Thing. Therefore Imperium, in this Sense, that is, Ἡγεμονία, chief Command, does not take away the Liberty of others. The Rhodians, in their Oration to the Roman Senate, extant in Livy, thus addressed them,38The Grecians formerly were strong enough to command: Where the Command is now, they wish it may be forever; they are contented to defend their Liberty with your Arms, not being able to do it with their own. Thus Diodorus tells us, after the taking the Fort of Cadmea, by the Thebans, many Grecian Cities39 joined in a League, to maintain in common their Liberty, under the Conduct of the Athenians. Dion Prusaeensis, speaking of those very Athenians in the Time of Philip of Macedon, said,40Having at that Time abandoned the Command in War, they only retained their own Liberty. Thus41Caesar calls those People Confederates, whom alittlebefore he had said were under the Command of the Suevians.
But as to those Things which respect the particular Interest of each Ally, if the Demands of the superior Ally are often called Commands, that does not imply any Right to require such Things with Authority; but that Way of Speaking is used, because those Demands produce the same Effect, as Commands properly so called, and the same Regard is paid to them. In this Sense the Intreaties of a King are called Commands, and the Advices of a Physician Prescriptions.42 Before this Consul (C. Posthumius) no Body, says Livy, B. 42. was ever chargeable, or any Ways burdensome to our Confederates; our Generals were abundantly supplied with Mules, Tents, and all Baggage necessary for War, that they should notcommand the Allies to furnish them.
In the mean Time it is true, that it often happens, that if he who is superior in the League, be much more powerful than the Rest, he by43 Degrees usurps a Sovereignty, properly so called, over them, especially if the League be perpetual, and that he has a Right to plant Garrisons in their Towns; as the Athenians did, when they suffered their Allies to appeal to them,44 which the Lacedemonians<98> never did. Whereupon Isocrates compares the Rule which the Athenians exercised over their Confederates45 to that of Kings. Thus the46Latins complained, that under the47Pretence of a Confederacy with the Romans, they were brought into Servitude. So did the Aetolians,48 that they had nothing left but the bare Shadow, and empty Name of Liberty; and the49Achaeans afterwards, that they had a League in Show; but in Reality a precarious Slavery. So in50Tacitus Civilis Batavus complains of the same Romans, that they used them not as at first, like Confederates, but as mere Slaves: And in another Place,51they falsely called that Peace, which was indeed a miserable Slavery. Eumenes also, in Livy,52 said the Confederates of the Rhodians were only so in Name, but really their direct Vassals. Also the53Magnesians complained that Demetrias was free in Shew; but in Effect all Things were managed as the Romans pleased; and Polybius54 remarks, that the Thessalians were in55 Appearance free, but in Truth under the Dominion of the Macedonians.
When Things go in that Manner, and Usurpation is changed at last into Right, by the tacit Concession of those who suffer it, of which we shall treat in another Place;56 then those who had been Allies become Subjects, or at least there is made a Partition of the Sovereignty, which, as I said before, may happen some-<99>times.
XXII.Of those that pay Tribute.XXII. There are also Powers,1 who pay something to another, either to secure themselves from their Insults, or to get Protection, ξύμμαχοι ϕόρου ὑποτελει̑ς,2Tributary Confederates, as it is in Thucydides; such were the3 Kings of the Jews, and of the4 neighbouring Nations, after the Time of M. Anthony, ἐπί ϕόροις τεταγμένοις, as Appian speaks; yet I see no Reason to doubt, but that such Sort of Allies may have Sovereignty, tho’ the acknowledging their Weakness takes off something from their Dignity.
XXIII.Of those that hold their Dominions by a Feudal Tenure.XXIII. Many think it more difficult to determine, whether feudatory Princes may be Sovereign? But that Question may be easily decided by what has been said before. For in this Contract,1 (which is peculiar to the German Nation, and no where found but where they have planted themselves) two Things are to be particularly considered, First, The personal Obligation of the Vassal. Secondly, The Right of the Lord to the Thing itself.
The personal Obligation is the same, whether a Man holds the Sovereignty by a feudal Right, or any Thing else, tho’ lying2 in another Place. But such an Obligation, as it takes not from a private Man personal Liberty, so neither does it lessen the Sovereignty in a King or State, which is Civil Liberty. Which may be plainly seen in Franc Fiefs, which consist in personal Obligation only, but3 give<100> no Right to the Thing itself. For these are nothing else but a Species of that unequal League, of which we have treated already, where in one promises Services, and the other Defence and Protection. But suppose a Vassal has promised his Lord to serve him against all and every Man, which they now call4Feudum Ligium,See Bald. Prooem. Digest. Natta, Consil. 485 (for formerly that Word was of a larger Signification) that takes off nothing5 from the Right of Sovereignty which the Vassal has over his own Subjects; not to mention, that there is always a tacit Condition supposed, viz. that the War undertaken by the Lord6 be just: Of which we shall treat in another Place.
As to the Right of the Lord to the Thing itself, enjoyed by a feudal Title, it is such indeed, that if the Family of the Vassal be extinct, or if he falls into certain Crimes, he may lose the very Right of Sovereignty: Yet the Power he has over his Subjects does not cease to be Sovereign; for as I have often said, there is a Difference between the Thing, and the Manner of holding it. And I find many Kings constituted by the Romans with this Condition, that upon the failing of the Royal Family the Sovereignty should return to themselves;Lib. 12. as Strabo observes of Paphlagonia, and some other Kingdoms.7 <101>
XXIV.A Man’s Right distinguished from the Exercise of that Right.XXIV. We must also distinguish in Sovereignty, as well as Property, between the Right itself, and the Exercise of that Right, or between the first Act and the second.1 For as a King, when an Infant, has a Right to govern, but cannot exercise that Right; so has a Prince that is Lunatick, or a Prisoner, or that lives in a foreign Country, so that he is not at Liberty to exercise himself the Acts of Sovereignty: For in all such Cases they have their Lieutenants or Vice-Roys to act for them. Therefore Demetrius, living confined under Seleucus,Plut. in Demetrius. forbad any Credit to be given to his Letters, or Seal, but ordered that all Things should be administred as if he were dead.
[1 ]Auctore eo, qui jurisdictionem habet. By the Authority of the Civil Power. The Reason of his expressing himself so, is, because on one hand, by the Term War, he understands all taking of Arms with a View of deciding a Quarrel, in opposition to the Way of terminating a Difference, by Recourse to a common Judge; and on the other, includes under the Name of Publick War, even that which is carried on by an inferior Power, without the Orders of the Sovereign Power; as appears from what he says, § 4 and 5. Thus all the Criticisms of the Commentators fall to the Ground; who do not consider, that our Author was at full Liberty to define his Terms as he pleased; provided he always fixes the same Ideas to them, and reasons on them conclusively.
[2. ]Digest.Lib. L. Tit. XVII. De Diversis Reg. Juris, Leg.176. See James Godfrey’s Comment on that Law.
[3. ]Cassiod.Var. Epist. Lib. IV. Ep. X. See also the Edict of Theodoric, Cap. X. and CXXIV. Grotius.
[4. ]Digest.Lib. IV. Tit. II. Quod metûs causa, &c. Leg. XIII. This is what the Latins call, in the Law Stile, Injicere manum, To lay Hands on; as is remarked by Servius, the antient Commentator on Virgil. In Aeneid. X. v. 419. Grotius.
[1 ]As when a Man is attacked either in the Night, or even by Day, in private Places; or when such as see us in Danger, will not, or cannot, assist us, and bring the Aggressor to Justice. See B. II. Chap. I.
[2. ]See B. II. Chap. XX. § 8. Num. 6, 7.
[3. ]This was the Case of Moses, when he saw one of his Brethren (that is, an Israelite) suffering Wrong, he defended him, and avenged him that was oppressed, and smote the Egyptian. Exod. ii. Acts vii. 24. For at that Time the Israelites had no Room to expect Justice from the Egyptian Judges.
[4. ]Solon’s Law runs thus, If any Man steals in the Day-Time, above the Value of fifty Drachms, he shall be brought before the Council of the Eleven: But whoever steals any Thing by Night, it shall be lawful to kill him, or wound him in the Pursuit.Demosthenes Orat. against Timocrates, p. 476. Edit. Basil. 1572. See hereafter, B. II. Chap. I. § 12. where the Reason of the Law is more fully considered. Grotius.
[5. ]This Law is preserved by Macrobius, who urges it as a Proof, that the Word Nox is by the Antients taken for Noctu. Saturnal. Lib. I. Cap. IV.
[1 ]Lib. X. in Lucam. Cap. XXII. p. 1782. Edit. Paris. 1569.
[2. ]De Offic. Lib. III. Cap. IV.
[3. ]De Lib. Arbitrio, Lib. I. Cap. V.
[4. ]Epist. ad Publicolam, CLIV.
[5. ]Cap. XLIII. LV. See also a Canon of the Council of Orleans, cited by Gratian, in the Canon Law, Caus. XIII. Quaest. II. Can. XXXII. Grotius.
[6. ]Cassiodore says, We are not obliged by any Precept, or by any Reason, to procure the Salvation of our Neighbour’s Soul by the Loss of our own, or prefer the Security of his Body to that of our own, except when we have Room to hope such an Action will put him in Possession of eternal Salvation. De Amicitia. Grotius. The Treatise here cited, is judged by the Criticks to be the Work of Peter of Blois.
[7. ]To this may be added, that we have no Assurance, that the Person whom we permit to kill us, rather than expose him to the Hazard of eternal Damnation, by defending ourselves, is by that Means secured from the Danger. It may even happen, that he will only become more wicked, and more hurtful to Society. Besides, a Man has not Time to examine every Thing, when in the Terror occasioned by an approaching Death, with which he is threatened by an unjust Aggressor. And after all, we only make use of our natural Right to endeavour our own Preservation; farther, in my Opinion, we are under a Sort of Obligation so to do in this Case, as I have observed on Pufendorf, B. II. Chap. V. § 2. Note 5. Second Edition. Let us add, with the late Mr. La Placette, “If Charity forbids us to kill Persons whom we know to be in a State of Sin and Perdition, it would follow, that the Magistrates have no Power to order the Execution of Criminals, whose Words and Actions make it appear, that they are not in a Disposition of making a good End. Those Wretches need only utter Blasphemies and Impieties, to shelter themselves from the Punishment they have deserved; which is absurd and insupportable. It would also follow, that no War is allowable; for as it is morally impossible, that the least bloody War should not sweep away a great Number of Wretches, who will die in bad Dispositions, no War could be carried on without exposing ourselves to that Danger, and consequently, without violating the Laws of Charity.” Treatise on the Right which every Man has to defend himself, Ch. V. To conclude, If an unjust Aggressor loses his Life, he who killed him, in defence of his own, is the innocent Minister of the Divine Providence and Vengeance.
[8. ]He says, that when any of that Sect travelled, they took neither Baggage nor Provisions with them, but were provided with Arms, on the Account of Highwaymen. De Bello Jud. Lib. II. Cap. XII.
[9. ]Orat. pro Milone, Cap. VI.
[10. ]De Patientia, Cap. XV.
[11. ]Who profess the Christian Religion. This is the Signification of the Word Brother, here used by the Apostle. He at the same time supposes, without Doubt, that the Persons, in whose Favour we hazard our Lives, deserve so great a Sacrifice at our Hands, and that we have good Grounds to believe such an Action will procure them some considerable Advantage; which cannot be said in regard to a Highwayman, or any other unjust Aggressor.
[12. ]If an Ecclesiastick strikes a Man in a Quarrel, and kills him with one Blow, let him be deposed for his Rashness. If a Layman is guilty of the same Fault, let him be deprived of the Communion, Can. LXIV. Our Author, in his Margin, quotes two Canons from the Decretals; one, which orders that if a Layman wounds an Ecclesiastick, in his own Defence, or on finding him in Bed with his Wife, Mother, Sister, or Daughter, he shall not incur the Sentence of Excommunication. Lib. V. Tit. XXIX. De Sent. Excom. Cap. III. Another, which makes several Distinctions, in Cases where a Man kills an Aggressor, and supposes, as the former does, that he may be killed, Cum moderamine inculpatae tutelae. With the Moderation of an innocent Defence. Lib. V. Tit. XII. De Homicidio voluntario, vel casuali. Cap. XVI. In both of them it is laid down, as a Fact, that all Laws allow of repelling Force by Force.
[13. ]St. Ambrose, on the Advice of our Saviour, to sell our Coat and buy a Sword, has these Words: Lord, why do you forbid me to strike, since you command me to purchase a Sword? Why am I order’d to carry a Weapon, which I am not allow’d to draw! Unless perhaps that I may be provided for my own Defence, not arm’d for Revenge. Lib. X. in Lucam. Cap. XXII. p. 1782. Edit. Paris.Grotius.
[14. ]Our Author finds this in Quaest. LXXXIV. on the Book of Exodus. But St. Augustin in that Place only gives the Reason, why the Law of Moses, allow’d of killing a Thief in the Night, but not in the Day. Because, says he, after Sun rising a Man might distinguish, whether the Thief came to kill or barely to steal; and in the latter Case, he was not to be kill’d. That Father makes no other Distinction; nor does he speak of what the Evangelical Law permits or requires in this Case.
[1 ]See B. III. Cap. III.
[2. ]The Epithet Lawful is taken in this Sense in the very Definition of a Will or Testament, given by the Civil Law. A Testament is there called, A Declaration of our (last) Will, made in Form; which is expressed by Justa, the very Word used by our Author. Digest.Lib. XXVIII. Tit. I. Qui Testamentum facere possunt, &c. Leg. I. See also the Fragments of Ulpian, Tit. XX. § 1. I do not know that the Terms Justum Testamentum occur in the Body of the Civil Law, precisely in Opposition to Codicils. For in the Law quoted from Digest.Lib. XXIX. Tit. II. De acquir. vel amitt. Haereditate. Leg. XXII. Justum Testamentum is opposed to Non justum Testamentum, that is, to a Will not made in Form; and this only is meant in the Title, Injusto, rupto, initio facto Testamento. Lib. XXVIII. Tit. III. It is well known, that certain Formalities are required even in Codicils; tho’ not so many as to make a Will good and valid; at least when no Will has been made before or after, which gave them Force.
[3. ]Contubernium, and a Woman cohabiting with a Slave was called Contubernalis: Even when a Freeman cohabited with a Slave, it was not reckoned a lawful Marriage. Inter Servos & Liberos Matrimonium contrahi non potest, Contubernium potest.Jul. Paulus, Recept. Sent. Lib. II. Cap. XIX. § 6. Contubernales, quoque servorum, id est, uxores, & natos, instructo fundo contineri verum est.Digest.Lib. XXXIII. Tit. VII. De instructo, vel instrum. legato. Leg. XII. § 33. Cum Ancillis non potest esse Coannubium; nam ex ejusmodi Contubernio servi nascuntur.Cod.Lib. V. Tit. IV. Deincertis & inutilibus nuptiis. Leg. III. Varro calls the Wives of Slaves Conjunctae. De Re Rusticâ. Lib. I. Cap. XVII. And such Cohabitation is expressed by the Word Consortium, in the Institutes, Lib. III. Tit. VII. De servili cognatione.
[4. ]Even among such as were Citizens, and consequently free, there were non-legitimate Marriages, which produced illegitimate Children.Paulus, Sentent. Lib. II. Tit. XIX. and Digest.Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adulterio. Leg. XIII. § 1. Seneca, De Vitâ Beatâ, Cap. XXIV. and Suetonius, in Octav. Cap. XL. likewise speaks of a Sort of illegitimate Liberty.Grotius.
[5. ]Thus a Man could not, by a Codicil, directly appoint an Heir, or disinherit those who had a Right to the Succession. Institut. Lib. II. Tit. XXV. De Codicillis. § 2. A Slave had not the Right of paternal Power over his Children; nor even a Freeman over those born to him of his Wife, who was a Slave, &c.
[6. ]Pufendorf criticises this Opinion, B. VIII. Chap. VI. § 10. But it is easy to reconcile our two Authors. Grotius fixes a more general Idea to the Term War, as appears by his Definition of it, Chap. 1. § 2. See my first Note on that Chapter. According to him also, when an inferior Magistrate takes Arms for the Maintenance of his Authority, and to reduce those to their Duty, who refuse to submit; he is supposed to act with the Approbation of the Sovereign, who by entrusting him with a Share in the Government of the State, invested him at the same Time with the Power necessary for the Exercise of his Charge. The Question therefore is only, whether every Magistrate, as such, stands in need of an express Order from the Sovereign in this Case, so that the Frame of civil Societies in general require it, independently of the Civil Law of each particular State. Now I ask, if such a Magistrate has a Right to employ Arms for the Reduction of one Person, of two, three, ten or twenty, who refuse him Obedience, or attempt to hinder the Exercise of his Jurisdiction, why may he not make use of the same Means against fifty, a hundred, a thousand, two thousand, &c.? The larger the Number is, the more he will stand in need of Force for conquering the Resistance. Now this is what our Author includes under the Term War. If it be objected, that it would be dangerous to allow an inferior Magistrate so much Power, this only proves that Legislators do well in setting Bounds to what would otherwise be a Consequence of the very Design of placing the Magistrate in his Post, in order to proceed in a Manner attended with fewer Inconveniences, so that the Commentators on our Author have no good Reason for falling on him in this Place, as if he weaken’d and destroy’d the first Principles of publick Law.
[7. ]If any Man makes Peace or War, by his own private Authority, without the Order of the State, let Death be his Punishment? But if any Part of the State makes Peace or War of their own Heads, let the Officers of the Army convene the Authors of such an Attempt before a Councel of War; and let the Criminal, on Conviction, suffer Death. De Legib. Lib. XII. p. 955. Vol. II. Edit. H. Steph.
[8. ]Digest.Lib. XLVIII. Tit. IV. ad Leg. Jul. Majest. Leg. III.
[9. ]This Law is by Conjecture only ascribed to L. Corn. Sylla. All we know of the Matter is grounded on a Passage of Cicero, where the Orator speaks of a Cornelian Law, relating to Treason. I take no notice of his going out of the Province, heading an Army, making War by his own private Authority, going to a Kingdom without the Order of the People and Senate; which Actions as they are prohibited by several ancient Laws, so are they most expresly forbidden by the Cornelian Law Majestatis, and the Julian de pecuniis repetundis. Orat. in Pison. Cap. XXI.
[10. ]Lib. XI. Tit. XLVI. Ut armorum usus, inscio principe, interdictus sit. This Law has no manner of Relation to the Power of making War, in whatever Sense the Word is taken. The Emperors Valentinian and Valens forbid such as are not Soldiers by Profession, to carry Arms on a Journey. See Godfrey’s learned Comment on Law I. of the same Title, in the Theodosian Code, Lib. XV. Tit. XIV. Tom. V. p. 419. where he gives a very good Explication of that Law; and shews that movere arma, the Phrase here employ’d, signifies only to carry Arms, whether a Person makes use of them or not.
[11. ]Lib. XXII. contra Faustum, Cap. LXXIV. the Passage is quoted in the Canon Law, Caus. XXIII. Quest. 1. An militare sit peccatum, Can. IV. as our Author observes in a Note on this Place; where he adds that the Jewish Doctors call every War not made by an express Order from GOD, מלחמח הדשיח, a War of the Heads or Powers. See Selden, De jure Nat. & Gent. juxta discipl. Hebr. Lib. VI. Cap. XII.
[12. ]For this Reason the Tip-Staffs, or Judges Officers, are in the Roman Law call’d manus militaris,Digest. Lib. VI. Tit. I. De rei Vindicatione, Leg. LXVIII. See Godfrey on the Theod. Code, De officio judicis milit. Lib. I. Tit. IX. Tom. I. p. 54. &c. and Mr. De Bynckershoekobserv. Lib. III. Cap. XIV.
[13. ]See Pufendorf, B. VIII. Chap. VI. § 10, 11. with the Notes.
[1 ]To the Lawyers quoted in the Margin, add Fran. Aret.Cons. XVI. num. 7. Gailius, De Pace publicâ, Cap. II. numb. 20. Cardinal Tuschus, Pract. Quaest. LV. lit. B. verbo Bellum, numb. 20. Goeddeus, Consil. Marpurg. XXVIII. num. 202. &c.Grotius.
[2. ]See the Law of Frideric I. in Conrad, Abbot of Usperg.Grotius.
[3. ]That is, though no Damage has actually ensued from a Governor’s undertaking a War, without waiting for the Sovereign’s Order. See B. II. Chap. XVI. §. 25. num. 1.
[4. ]Suetonius says, in one Place, that Cato had frequently declared on Oath, that he would impeach him (Caesar) as soon as he was divested of the Command of the Army. Cap. XXX. And in another Place, he speaks in general of some Persons who were for giving him into the Hands of the Enemy. Cap. XXIV. But Plutarch relates the Fact, with its several Circumstances: He tells us, that after the Victory gained by Caesar in the Belgick Gaul, over the Usipetes, and the Tenchterians, who had passed the Rhine, in Order to settle themselves, the Senate decreed publick Rejoicings and Sacrifices, to express their Gratitude to the Gods, and do honour to the General. Whereupon Cato delivered it as his Opinion, that Caesar should be delivered up to the Barbarians, (that is, the Germans) to expiate his Perfidy, and divert the Curse from the State, which that Action might draw on it. Vit. Caes. p. 718 Tom. II. Edit. Wechel. Where Plutarch produces the Authority of Tanusius Geminus. Τανύσιος δὲ λέγει; for that is the true Reading, and justified by a MS. not Γαγύσιος. See also what he says in his Parallel of the Lives of Crassus and Nicias, p. 567. So that Cato proposed giving Caesar into the Hands of the Enemy, not because he had made War on the Germans without the express Orders of the Commonwealth, but because that General had attacked the Germans, against the Promise and Assurance given them, and seized several of their Deputies; as appears from what he himself says in his Commentaries. Bel. Gall. Lib. IV. Cap. XI. &c. He does indeed endeavour to put a Gloss on his Conduct; but there is good Reason for believing that he here, as on other Occasions, disguises Things, in order to turn them to his own Advantage. See his Commentators on this Place, in Mr. Davies’s Edition; and Freinsheim’s Supplement to Livy, Lib. CV. Cap. LI. &c. Edit. Cleric. The Manner in which Cato gives his Opinion is sufficient for forming a Conjecture, that they were persuaded at Rome that Caesar had not dealt fairly and honestly in the Matter under Consideration. But, whatever becomes of this Question, it is evident from the Authority alledged, that our Author has not given the true Reason for Cato’s voting for delivering Caesar into the Hands of the Germans. He likewise confounds the Defeat of the Usipetes and the Tenchterians, which happened before Caesar laid the first Bridge over the Rhine, with the Victory he gained over those of Treves about two Years after; for Caesar did not till that Time carry the War into the Country of the Germans, in order to take his Revenge on them, as he himself says, for sending Succours to those of Treves. Bell. Gall. Lib. VI. Cap. IX. And this Expedition took up but little Time, and was far from being considerable. At Caesar’s Approach the Enemy retired into their Forests; and the Roman General being apprehensive he should fall short of Provisions for his Army, repassed the Rhine a few Days after. Ibid. Cap. XXIX. Tho’ Dion Cassius attributes this Motion to his Fear of the Enemy. Lib. XL. p. 151. Edit. II. Steph. But several of our Author’s Expositors have confounded Matters still more, by understanding what he here says of Caesar’s war with Ariovistus, when that Prince had possessed himself of Part of the Country of the Sequani, related Bel. Gal. Lib. I. The learned Obrecht is one who gives in to this Mistake, as appears not only from his Notes on this Work, published by one of his Scholars without his Knowledge; but also from a Corollary placed at the End of his Dissertation De Censu Augusti, which is the ninth of the Collection printed in 1704. For he there makes Plutarch say, Caesar’s War with Ariovistus being ended, Cato gave his Opinion, &c. And he maintains, that the Roman People had at that Time no Right to punish Caesar, but that the Germans had a Right to demand his Delivery into their Hands. Mr. Buddeus makes the same Supposition, in his Jurisprudentiae Historicae specimen. § 110. Even in the Application which they both make of Cato’s Vote, the last Proposition advanced by Obrecht is as false as the first is true; as I shall shew in another Place, where I shall have Occasion to speak after our Author of the War made on Ariovistus. B. III. Chap. III. §10.
[5. ]Livy, Lib. XXI. Cap. XVIII. Num. 6. The learned Gronovius thinks this Way of reasoning, employed by the Carthaginians, was a mere Piece of Chicanry; because Hannibal, by attacking the City of Saguntum by his own private Authority, had violated a Clause of the Treaty between the Romans and Carthaginians. It is true here was a real Infraction of the Treaty, as I shall shew elsewhere, in Opposition to our Author, B. II. Chap. XVI. § 13. But then that was the very Thing in Question; and till they were convinced of that, they might say with Reason, that the Romans had no Business to enquire whether Hannibal had acted by the Orders of their Republick, or not?
[6. ]In the third of his Philippicks, Cap. XI. &c.Gronovius undertakes to defend Cicero’s Opinion against the Criticism of our Author. Octavius and Brutus, says he, might have been justly blamed, if the Senate had been free at that juncture, and Mark Antony’s Enterprizes had allowed sufficient Time for consulting the Senate and People: But, as Velleius Paterculus very well observes, the Commonwealth was oppressed, and as it were benumbed under the Power of Antony. Torpebat oppressa dominatione Antonii Civitas. Lib. II. Cap. LXI. And had not Antony himself attacked Brutus merely by his own Authority? Had he not seized on Gaul? And did he not take the same Steps towards Tyranny as Julius Caesar? Good Men would be very unhappy if they were obliged to act in Form, where ill designing Persons trample on all Laws human and divine. Had Brutus waited for Orders from Rome, he would have been ruined, and all Gaul with him, before he could give an Account of the State of Affairs. In such a Case it might be justly said, that a just Presumption of the Will of the Senate, ought to pass for an express Order, according to Cicero’s Advice to the same Brutus. Epist. ad Famil. Lib. XI. Ep. VII. See Cato’s Speech to the great Pompey’s Son in Hirtius, Bell. African. Cap. XXII. and the following Note.
[7. ]This Example is not exactly to the Purpose, for the Rhodians were not subject to the Romans, but an inferior Sort of Allies, as our Author himself terms them, § 21. Num. 9. Tho’ in Reality, they were dependent on the Romans, in spight of the Liberty they in one Sense enjoyed. See my 25th Note on that Paragraph. Besides, Cassius, in his Reply to the Rhodian Deputies, told them, they bantered and trifled with him, when they talked of the Consent of the Senate, that Body being then dispersed by the Oppression of the Tyrants.Appian.De Bell. Civilib. Lib. IV. p. 627. Edit. H. Steph. This helps to confirm the Reflections made in the preceding Note, and I am surprized the learned Gronovius has taken no Notice of this Passage.
[1 ]Lib. V. § 18. Edit. Oxon.
[2. ]One may also translate the original Word αὐτοτελὴς, which has its own Taxes, or Imposts; that is, pays Tribute to no foreign Power. And this is the Sense which the Greek Scholiast gives that ambiguous Word. Grotius.
[3. ]Politic. Lib. IV. Cap. XIV. p. 379. Edit. Paris.
[4. ]The Greek Writer is there speaking of the Roman People, Who, he says, were from the very Beginning possessed of three great and most necessary Branches of Power, viz. that of creating civil Magistrates, and Officers for the Army; that of enacting and abrogating Laws; and that of regulating whatever belonged to Peace and War. Antiq. Rom. Lib. IV. Cap. XX. p. 215. Edit. Oxon. See likewise Lib. II. Cap. XIV.
[5. ]The Grammarian Servius describes the Power of the Romans in the same Manner, Omni Ditione. Omni in this Place, says he, is better than omnis, to express their enjoying all Power, in regard to Peace, War, and Laws.Grotius.
[6. ]In a Speech made by Manius Valerius, where he requires, that the People should be allowed a Share in the Administration of Justice, especially in Causes which nearly concern the Good of the Commonwealth; as when a Person is accused of raising Sedition, endeavouring to enslave his Country by the Exercise of despotick Power, or betraying it to the Enemy. Antiq. Rom. Lib. VII. Cap. LVI. p. 445. Edit. Oxon.
[7. ]Our Author has his Eye on the Place where the Grecian Writer speaks of the Power given by Romulus to the Kings, which was reduced to the following Heads, 1. The Direction of what related to the Sacrifices, and other Parts of Religious Worship. 2. The Maintenance of both the Natural and Civil Laws, with the Cognizance of the most considerable Violations of both. 3. The Convening of the Senate, Assembling of the People, giving their Votes first, and putting in Execution whatever was carried by a Plurality of Voices. 4. The Command of the Armies. Lib. II. Cap. XIV.
[8. ]Ethic. Nicom. Lib. VI. Cap. VIII.
[9. ]See Chap. I. § 6.
[10. ]Ethic. Nicom. Lib. VI. Cap. VIII.
[1 ]What Pufendorf says, B. VII. Chap. V. may serve as a Comment on all this. As to our Author’s Definition of the Sovereign Power, see a Treatise De Jure Imperii, written by Rabod Herman Schelius, p. 132. &c.
[2. ]See B. II. Chap. IX. § 8.
[3. ]Pufendorf treats of this at large, B. VII. Chap. V. § 16, &c. It is worth while to consult him on the Subject.
[4. ]He makes use of the Term σύστημα, when speaking of the Amphictyons, Lib. IX. p. 643. Ed. Amst. (420 Paris.) and of the Lycians, Lib. XIV. p. 980. Edit. Amster. (664. Paris.)
[5. ]He calls those Bodies Συμμαχίαι, Alliances, Polit. Lib. II. Cap. II. p. 313. Edit. Paris. Tom. II. and Lib. III. Cap. IX. p. 348. because such Sort of Confederacies are commonly formed chiefly with a View of mutual Defence against the common Enemy.
[1 ]See my Remarks on Pufendorf, B. VII. Chap. VI. § 5. Note 2. The late Mr. Hertius has left us a whole Dissertation on this Question, which is the eighth in his first Volume of Commentationes & Opuscula, &c. Where we have a particular and exact Account of the Books published on both Sides of this Question. It must be owned, there has been much Misunderstanding in regard to the whole Subject of the respective Rights of the Sovereign and People. The first who wrote on it with any Extent, having only confused Ideas of the Law of Nature, were not sufficiently acquainted with the Topick of such Questions. Add to this the particular Interests and Passions, which in this, as in other Cases, have carried the Disputants on both Sides into vitious Extremes. But if we examine Things without Prejudice, I believe we shall find it not very difficult to establish certain Principles, which neither favour Tyranny, nor the Spirit of Independence and Rebellion. It is certain, that as soon as a People in any Manner submits to a King, really such, they are no longer possessed of the Sovereign Power; for it implies a Contradiction, to say we confer a Power on any one, and keep it still in our own Hands. But it does not thence follow, that we have conferred it so as not to reserve a Right to reassume it in any Case. This Reserve is sometimes expressed; and there is always a tacit one, the Effect of which appears, when the Person on whom the Power has been conferred abuses it in a Manner directly, and remarkably, contrary to the End for which it was conferred. See our Author, in the following Chapter, § 11. For I do not know any Man has ventured to maintain, that a Prince entirely forfeits his Right for the least Abuse of the Sovereign Authority. Princes being Men, as well as the meanest private Person, and consequently, subject to Faults, that Consideration is supposed to be taken in, when they are invested with their Power. And it is certain, that the People pardon them a great Number of crying Injustices, before they think of recovering their natural Liberty.
[2. ]In the Margin of the Original, we have here a Quotation from A. Gellius, which is not only faulty in all the Editions before mine, but also misapplied, as has been observed by Gronovius, in a Note on that antient Writer, tho’ he is entirely silent in this Place. The Passage in Question is as follows,
[3. ]Terence, Heautontim. Act II. Scene II. Ver. 84.
[4. ]Cicero speaking of the Power of the Tribunes of the Roman People says, You see plainly, Quintus, that the Tribuneship is exposed to many Abuses. But it is unjust, in the Prosecution of any Accusation, to enumerate Inconveniencies, and place Abuses to View, without taking any Notice of the Advantages resulting from the Thing under Consideration — But we should not enjoy the Advantage sought for, without that Mixture of Inconveniencies. De Legibus, Lib. III. Cap. X. Grotius.
[5. ]The City of Augsbourg petitioned Charles V. that the Resolutions of their Senate might be allowed no Force, without the Assent of the Masters of the Tribes of the People. The Norimbergers desired the direct contrary. Grotius.
[6. ]Livy, Lib. VII. Cap. XXXI. Num. 4.
[7. ]The Falisci and the Samnites did the same. See Livy, Lib. V. Cap. XXVII. and Lib. IX. Cap. XLII. Thus likewise the Epidamnii, being abandoned by those of Corcyra, surrendered themselves to the Corinthians, to engage that People in their Defence against the Taulantii, the Illyrians, and the Exiles, who had joined them. Thucydides, Lib. 1. § 24, 25. Edit. Oxon.Grotius.
[8. ]See Appian’s Preface, p. 6. Edit. Tol. The same Author instances in the Libyans, p. 7. Edit. Toll. (3 H. Steph.)
[9. ]This Passage of Virgil is nothing to the present Purpose, as has been observed by the Commentators of the Work before us. It is taken from the fourth Book of the Aeneid, v. 618, 619. where Dido, among the Imprecations with which she loads Aeneas, wishes that, after having made a disadvantageous Peace, he may enjoy neither Kingdom nor Life,
Our Author, by changing the Punctuation, and the Sense, makes the unfortunate Lover say,
A remarkable Example how far the Memory imposes on such as depend on it too much.
[10. ]De moribus Germanorum, Cap. XXV. See a Dissertation by Mr. Thomasius, De hominibus propriis Germanorum, § 66, &c. Where he explains that Historian’s Account of the several Sorts of Slaves among the antient Germans. The Liti or Lidi, in the middle Age, are also brought as an Example on this Occasion. See the late Mr. Hertius, De hominib. propriis. Sect. I. § 4. in his Comment. & Opuscula, &c. Tom. II.
[11. ]See Pufendorf, B. III. Chap. II. § 81. Where he examines this Opinion of the old Philosopher.
[12. ]Vita Apollonii, Lib. VII. Cap. III. Edit. Olear.
[13. ]Seneca, speaking of Marcus Brutus, says, Tho’ he was a great Man in other Respects, I think he was extremely mistaken, and deviated from the Maxims of the Stoicks, in dreading the Name of King, since there is no better Government than that of a good King: In flattering himself with the Hopes of Liberty, at a Time when both those who aspired at Power, and those who should submit to it, had so large a Reward in view: Or in imagining the State could be re-established in its first Form, when the antient Morals were corrupted; and that it was possible to settle the Equality of a Commonwealth, and put the Laws duly in Execution, in a State where he had seen thousands in Arms, not to assert their Liberty, but to decide who should be their Master. De Benef. Lib. II. Cap. XX. See Pet. Bizar.Hist. Genuensium, Lib. XIV. p. 329. Grotius.
[14. ]Lib. XLII. Cap. V. Num. 2, 3.
[15. ]Thus Isocrates tells us, that several Citizens of the free States of Greece left their own Country, and settled at Salamis in Cyprus, because Evagoras reigned there. Orat. laudat Evag. p. 199. Edit. H. Steph.Grotius.
[16. ]Philostratus makes Dion say, I fear the Romans, who have been long accustomed to Monarchy, will bear no Change in their Form of Government. Vita Apol. Tyan. Lib. V. Cap. XXXIV. Edit. Lips. Olear.Grotius.
[17. ]Thus Tacitus says it was the Opinion of wise and discerning Persons, after the Death of Augustus, that there was then no Way of composing the Dissensions of the State, but that of submitting to the Government of One. Annal. Lib. I Cap. IX. Num. 4. See also Hist. Lib. I. Cap. I. Num. 2. Florus, Lib. IV. Cap. III. Num. 6. Lucan’sPharsalia, Lib. I. v. 670. IX. 262. And Dion Cassius, Hist. Lib. LIII. p. 575. Edit. H. Steph.
[18. ]There are several Reasons which induce Men to submit to the Command and Power of another: They are engaged either by Benevolence, by the Greatness of Favours received, the Dignity of the Person’s Character, the Prospect of some Advantage, or an Apprehension of being forced to obey: They are captivated by the Hope of a valuable Consideration, and Large Promises: Or lastly, They are hired to make their Submission, as we see is frequently the Case in our Commonwealth. De Offic. Lib. II. Cap. VI.
[19. ]This Reflection (which our Author has inserted in his short Remarks on Campanella’sPoliticks, p. 97. of the Collection printed at Amsterdam, in 1652.) is designed to shew that it is not contrary to the End of Civil Society ingeneral, that People should be subject to an independent Power, because in the most popular Commonwealths, there is always a considerable Number of Persons of both Sexes, who have no Share in the Administration, and depend on the Assembly of the People, in whose Hands the Sovereign Power is lodged, as much as the Subjects of a Monarchical Government depend on their Prince, or those of an Aristocracy on the Council of the Chiefs of the State. I make this Observation because the learned Gronovius makes our Author reason thus: There are some Persons who are ordinarily excluded from publick Debates; therefore the whole People, or the greater and better Part of them, is not permitted to resist a Tyrant, even in extreme Necessity. Whereupon the Commentator concludes with an Air of Contempt, Sic apparet Argumenti Vanitas. In Reality, the Argument would be downright impertinent, if it had been included in the Words of our Author, who was not capable of such an Extravagance. We are therefore to place it to the Account of his Expositor, who is in other Respects a very great Critick, but here on this and other Subjects, has often made strange Mistakes, in explaining an Author whose Principles he did not thoroughly understand; as I have long since observed in my Notes on Pufendorf, and as appears from what I have said in my Latin Edition of this Work of Grotius.
[20. ]Thus Salamis depended on the Athenians, from the Time of Phileus, and Eurysaces the Son of Ajax, as Plutarch informs us in the Life of Solon, p. 83. Tom. I. Edit. Wech. The Emperor Augustus took that Island from the Athenians; as Adrian afterwards did Cephalenia.Xiphilinus. The Country of Atarnes in Mysia, formerly belonged to those of Chios, as we learn from Herodotus, Lib. I. Cap. CLX. and the Samians were Masters of several Towns on the Continent, according to Strabo, Lib. XIV. p. 639. Edit. Paris. Anactorium in the Gulph of Ambracia, was partly in the Hands of the Corinthians, and partly in those of the Corcyrans.Thucyd.Lib. I. Cap. LV. Edit. Oxon. In a Treaty of Peace concluded between the Romans and Etolians, it was stipulated that the City of Oeneades, with its Territories and Inhabitants, should belong to the Acarnanians.Livy, Lib. XXXVIII. Cap. XI. Num. 9. Pliny speaks of seven (Grotius says six) Cities given to those of Halicarnassus, by Alexander the Great, Hist. Nat. Lib. V. Cap. XXIX. The same Writer says, the Island of Lindus, and the City of Caunus belonged to the Rhodians, Lib. XXXIII. Cap. IV. and Lib. XXXV. Cap. X. which is also attested by Cicero, Ep. ad Quintum Fratrem, Lib. I. Ep. I. The Romans gave several Towns to the same Rhodians, in return for their Assistance in the War with Antiochus.Eutrop.Lib. IV. Cap. II. Num. II. Edit. Cellar. Those were Towns in Caria and Lysia, which the Senate afterwards took from them. See Polyb.Exc. Legat. Cap. XXV. and XCIII. Grotius.
[21. ]Livy, Lib. I. Cap. XXXVIII. Num. 2.
[22. ]Idem. Lib. VII. Cap. XXXI. Num. 6.
[23. ]This Example is nothing to the Purpose; for it speaks of a Province of the Roman Empire, which of Course could not have a Sovereign Power over those Cities, without the Emperor’s Will and Pleasure.
[24. ]See what is said on the following Chapter, § 3.
[25. ]Hor.Lib. III. Ode I.
[26. ]Epist. XIV.
[27. ]This Passage of Plutarch is not very well applied. The Historian speaks there of Philopemenes, General, not Sovereign of the Achaeans, and observes, that He was so great a Master of the Art of War, that he understood not only how to command according to the Laws, but even how to command the Laws themselves, when the Good of the State required it; that he did not stay till the Command was given him, but took it when Opportunity offered; being persuaded, that the Person who had better Skill and Judgment than those at the Helm, was their General, rather than he whom they chose. Compar. Vit. Philopoem. & Flamin, p. 382. Tom. I. Edit. Wech.
[28. ]The Prince’s Pleasure has the Force of a Law; for by the Lex Regia, made by his Authority, the People conferr’d on him all the Authority and Power.Digest. Lib. I. Tit. IV. De Constit. Principum, Leg. I. See the learned Gronovius’s Oration De Lege Regia, which I have translated into French, and illustrated with Notes. That Piece was published in 1714, in the second Edition of Mr. Noodt’s Discourse on The Power of Sovereign Princes, and Liberty of Conscience.
[29. ]The Lex Regia gave the King all Manner of Power over the People. Ad Institut. Lib. I. Tit. II. § 6. p. 22. Edit. Fabroti.
[30. ]Xiphilinus, in Marc. Anton. p. 271. Edit. H. Steph. See Milton’s Exposition of this Passage, Defens. pro Pop. Anglic. Cap. II. p. 49. Mr. De Tillemont, in his History of the Emperors, Vol. IV. p. 644. Edit. Bruxelles, joins and explains that Prince’s Words, as if he meant to say, He feared not the Mutinies of the Soldiers, because GOD alone is the Master of Empires.Gronovius gives them the same Sense.
[31. ]This is said in Justification of Augustus’s Conduct, whom he thought discharged from all Obligation of Obedience to the Laws, Lib. LIII. p. 591. Edit. H. Steph.
[32. ]These are the Anakim עכקים, mentioned Deut. ii. 10. Hence the Name of the Goddess Ὄγκα ענקה, to whom Cadmus built a Temple at Thebes, and whom the Grecians called Pallas. Eschylus says, the Inachidae were Pelasgi, that is, Exiles, for the Syriac Word פגל. The first Inhabitants of Lacedemonia were Pelasgi; for which Reason the Lacedemonians called themselves Descendents of Abraham, 1 Maccab. xv. 21. Now as the Kings of Argos were arbitrary, in Imitation of those of the East, from whence they came, so were the Kings of Thebes, who descended from the Phoenicians. This appears from the Words of Creon, in Sophocles, and those of the Theban Herald, in the Suppliants of Euripides. Grotius.
[33. ]But, as Milton observes, in his Defens. pro Pop. Anglic. Cap. V. p. 174. The Poet puts those Words into the Mouth of some foreign Women, who desiring the King of Argos’s Protection and Assistance against the Aegyptian Fleet in Pursuit of them, flatter him with an absolute Power, which did not belong to him; as is evident from that Prince’s own Words, I have already told you, I will not do it, without the Consent of the People, even tho’ it was in my Power. Conformably to this Declaration, he convenes the People, and having obtained their Approbation, promises the Petitioners to comply with their Request. See also the Passage of Pausanias, quoted by our Author, Note 40.
[34. ]Supplic. v. 404, &c.
[35. ]Vit. Thes. p. 11. Tom. I. Edit. Wech.
[36. ]Demophoon the Son of Theseus, speaks thus in one of Euripides’s Tragedies, I am not invested with absolute Power, like the Kings of the Barbarians; but if I govern with Justice, I shall be treated as I deserve. Heraclid. v. 424, 425. Grotius.
[37. ]That Historian speaks only of the Manner how the Kings of Lacedemonia were limited. Lib. VI. Cap. VIII. which is the Place our Author had in View.
[38. ]It is where he speaks of Cleomenes, who, as he observes, had only the Name of King, but the whole Power was lodged in the Hands of the Ephori. Vit. Agid. & Cleomen. p. 805. Edit. Wech.
[39. ]His Words are these, For it has long been a standing Custom among the Lacedemonians, to have two Kings, who are such more in Name than Authority, chosen out of the two Families of Proclus and Euristhenes, &c. Vit. Agesil. Cap. I. Num. 2. Edit. Cellar. And Cap. XXI. De Regibus, Num. 2. But Agesilaus, like the other Spartans, was King of the Lacedemonians, in Name, not in Power.
[40. ]Corinthiac. Cap. XIX. p. 61. Edit. Wech. Graec.
[41. ]The Officer who had the Care of the Prison, used to bring the Kings before the Senate by Night, and not give them their Liberty till they were cleared by that Body.Plutarch, Quaest. Graec. p. 291, 292, Tom. II. Edit. Wech.
[42. ]The Philosopher does not say such Kings made Part of an Aristocratick or Democratick State; but that there may be, even in Democracy and Aristocracy, Generals invested with as large a Share of Authority in Military Affairs, as the Persons who bear the Title of King. Polit. Lib. III. Cap. XVI. p. 359. Edit. Paris.
[43. ]Amymones. Our Author, and some others, miscall this People, as Gronovius observes; for Amnemones is the true Reading, which he shews from Plutarch, Quaest. Graec. 292. But I am surprized that no one has taken Notice of the Misapplication of this Example. For the sixty chosen Men, there mentioned, who governed in the most important Affairs with absolute Authority, held their Office during Life, (διὰβίου). So that this cannot be alledged as an Instance of temporary Sovereignty. But our Author, trusting his Memory on this Occasion, thought Plutarch wrote δίἔτους, were chosen annually. Or perhaps, having read Bodin, who makes the same Mistake in his Treatise Of the Commonwealth, Lib. I. Cap. VIII. p. 126. Edit. Lat. Francof. 1622. he took it from that Writer, without consulting the Original. I am inclined to believe this was the Case, because they agree in giving the Magistrates of Cnidos the Appellation of Amymones. But whatever led him into this Error, our Author might have produced a more suitable Example nearer Home, which is that of the Government of Friesland, where the Senators, who compose the supreme Council of State, and are elected every Year, have had, during that Time, so absolute an Authority ever since the Year 1629, that they do what they please, without consulting any one, or being obliged to answer for their Conduct when out of Office; nor can any Act of theirs be abrogated. This I learnt from a Lawyer of that Country, who has been successively Professor and Member of that Sovereign Council; from whence he was called into the Academy of Franecker. See Ulric Huber, De Jure Civitatis, Lib. I. Sect. VIII. Cap. II. Num. 3, &c.
[44. ]See § 11. where the Author treats professedly of the Dictators. I have transposed a Note of the Author to that Place; because it contains an Example taken from the Roman History, relating to what he says of the Power of those extraordinary Magistrates.
[45. ]Lib. VIII. Cap. XXXIV. Num. 2.
[46. ]Idem. Lib. II. Cap. XVIII. Num. 8.
[47. ]The Roman Orator does not speak of the proper and ordinary Power of the Dictators, but of the Manner in which Julius Caesar had employed it, when he found Means to make that Office perpetual; as is evident from the whole Series of the Discourse. The Words are these, He (M. Anthony) entirely abolished the Dictatorship from the Commonwealth, which had possessed itself of the whole Force of the Royal Authority.— The perpetual Dictatorship being fresh in every one’s Memory. Philippic. I. Cap. I.
[48. ]Sozomen, Hist. Eccl. Lib. VI. Cap. VI. Theodoret makes the Emperor speak thus to his Army, During the Vacancy of the Throne, it was your Business to deliver me the Reins of the Government; but from the Moment I received them, it was my Business, not yours, to consider what is expedient for the Commonwealth, Lib. IV. Cap. VI. Grotius.
[49. ]But in this, as in all other Sorts of Conventions, each of the Parties has his own Interest in View, insomuch that he who is to obey, neither is or can be supposed to engage farther than the Condition shall be supportable. See Mr. Noodt’s Discourse on The Rights of the Sovereign Power, p. 241, &c. French Translation, second Edition.
[50. ]This Word had not an odious Meaning originally among the Grecians, from whom it passed into the Latin, and some living Languages. We have an Instance of this in what I have said in the 32d. Note on this Paragraph. I shall here add a Passage of Cornelius Nepos, in his Life of Miltiades, which is fully to the Purpose, For he had obtained a perpetual Power in Chersonesus, during his Stay in that Country, and was called Tyrant, but with the Epithet of just: For he did not acquire that Power by Force, but received it at the Hands of the Persons governed, and retained it by his good Administration. All who are in Possession of perpetual Power, in a State that was once free, are called Tyrants. See likewise Mr. Coste’s Preface to his excellent Translation of Xenophon’sHiero, p. 11, &c.
[51. ]De Offic. Lib. II. Cap. XII.
[52. ]The Author has his Eye on that Place where the Historian relates how Dejoces was raised to the Royal Dignity, Lib. I. Cap. XCVI, XCVII.
[53. ]The Poet says the Muses give Kings the Art of Persuasion, that they may engage the People to submit to their Decisions, for which End they were placed in that exalted Station; for the first Kings were properly no more than Judges, who had no Power to inflict Punishments by their own Authority, and without the Consent of the People. Theog. v. 83, &c.
[54. ]Guardianship, as Servius defines the Term, is a Power over a free Person, &c. Instit. Lib. 1. Tit. XIII. De Tutelis, §1.
[55. ]Hist. Lib. IV. Cap. LXXIV. Num. 4.
[56. ]The Author has the Passage of Xiphilin in View, which I have quoted Note 30 of this Paragraph. He sets it down in a Note on this Place; where he also quotes two Expressions of two other Princes, to the same Purpose. King Vitigis, (in Cassiodorus) declares, that what regards the Royal Power (he should have said Dignity) is to be judged by the Powers above; since it is derived from Heaven, and is accountable to Heaven alone. In the same Author a King says, We cannot be subject to another, because we have no Judges. This last Passage is in the Formula Praefecturae Urbanae, Var. VI. 4. The first Words of the former are taken from Lib. X. 31. But I do not know where our Author found, Since, &c.
[57. ]Hist. Lib. V.
[58. ]De Abstin. Lib. IV. p. 389. Josephus the Jewish Historian, who, with Philo, is our best Guide in what relates to the Essenes, says exactly the same, De Bello Judaic. Lib. II. Cap. XII. So that it would have been more proper to have quoted the original Author.
[59. ]Lib. V. Cap. XXIV. This Passage, and those quoted both in the Text and the following Note, mean no more than that such or such Princes reign by the Permission of Providence. But this is not to the present Purpose: For the Question here is about Right, not Fact. Besides, Do not the worst of Tyrants exercise their Power by the Permission of Providence?
[60. ]Homer says, Dignity is derived from Jupiter. Iliad. Lib. II. v. 197. The Aegyptians, according to Diodorus of Sicily, were of Opinion, that Kings did not attain the Sovereign Power without a Divine Providence. Lib. I. Cap. XC. Ed. Steph. St. Augustin says, The same who gave the Empire to Flavius and Titus Vespasian, Princes of the greatest Lenity, bestowed it on Domitian, remarkable for his Cruelty; in short, Julian, the Apostate, received it from the same Hand which conferred it on Constantine, the Christian Emperor, De Civit. Dei, Lib. V. Cap. XXI. Cassiodorus makes King Vitigis say, That every Promotion to Dignity is to be considered among the Gifts of the Divinity; and that this is true in a particular Manner, in regard to that of a Sovereign. Var. X. 31. The Emperor Titus declared, that The Powers were established by Fate. Epitom. Aurel. Victor.Cap. X. Num. 10. Or, as it is expressed by Suetonius, that The Dignity of Princes was bestowed by Fate. In Vit. Titi. Cap. IX. Grotius.
[61. ]Lib. VII. Cap. XVII.
[62. ]This Reason may sometimes take Place. See Mr. Le Clerc’s Reflections on the Famine with which GOD punished the Israelites, on the Account of Saul’s exterminating the Descendants of the antient Gibeonites, 2 Sam. xxi.
[1 ]That is, while he remains really a King, and has not so far abused his Power, as to give just Occasion to consider him no longer in that Character. For this Restriction is always to be understood.
[2. ]See § 17. of this Chapter.
[3. ]That is, if the People had a Right to consider themselves as independent of the King, and proceed against him authoritatively, as often as the King should do any Thing that seems unjust, or prejudicial to the publick Good, a perpetual Source of Quarrels and Disorders would be opened, because it might easily happen, that the People, at certain Times would judge some Things unjust or prejudicial, which are not really so. So that the King, on such Occasions, being persuaded he had not abused his Power; and the People thinking the contrary; and no Judge being to be found for deciding the Difference; they must necessarily come to an open War. It is better therefore, that the Sovereign should sometimes do Things really Evil, with Impunity; and the Inconvenience on this Side is less than that on the other. But then it does not follow, that the People can never judge of the King’s Actions, and that they are obliged to submit to, and suffer every Thing. This is contrary to the natural End of all Society, and to the Obligation under which whole Nations, as well as each Man, lye of preserving themselves.
[1 ]De Bell. Gall. Lib. VII. Cap. IV.
[2. ]Annal. Lib. II. Cap. LVII.
[3. ]Vita Calig. Cap. XXII.
[4. ]Lib. II. Cap. CVIII. p. 115. Edit. Oxon. 1711.
[5. ]The Kings of Lacedemonia, as the learned Gronovius observes on this Place, were not subject to the Ephori, but the Ephori were established to oppose the Kingly Power, when it degenerated into Tyranny: As the Tribunes of the People, among the Romans, were set up to check the Consular Power. This we learn from Valerius Maximus, Lib. IV. Cap. I.
[6. ]See the 39th Note on Paragraph 8.
[7. ]De Morib. Germanor. Cap. XI. Num. 6.
[8. ]Lib. I. Cap. VII. Num. 8.
[9. ]Politic. Lib. II. Cap. IX. p. 334.
[10. ]The Carthaginians, says that Historian, had Kings, and a Senate invested with Aristocratical Power. Lib. VI. Cap. XLIX.
[11. ]He tells us the Carthaginians conferred the Title of King on their General Mago. Biblioth. Hist. Lib. XV. Cap. XV. p. 465. Edit. H. Steph. The same Title is given him twice or thrice in the same Place.
[12. ]Xenophon, of Lampsacus, relates that Hanno, King of the Carthaginians, travelled into those Islands, Cap. LVI. The Author here adds, in a Note, a Passage from the Writer of Hannibal’s Life. He means Cornelius Nepos, whose Lives of illustrious Generals, at that Time passed under the Name of Aemilius Probus; but the Learned very much doubted their being the Work of that Grammarian of the middle Age: For two Kings were chosen yearly at Carthage, as the Consuls were at Rome. Cap. VII. Num. 4. Edit. Cellar. He likewise observes, that we may rank among those Kings, improperly so called, the Princes on whom their Fathers, who were real Kings, bestowed the Title of King, without divesting themselves of the Sovereign Power. Such was Darius, whom Artaxerxes condemned to die for a Conspiracy against him; as we learn from Plutarch, Vit. Artax. p. 1026. Tom. II. Ed. Wech.
[13. ]It had before been formed into an Aristocracy; as appears from the Words immediately preceding those quoted by our Author. But afterwards they (the Scepsians) were changed into an Oligarchy, &c. Geogr. Lib. XIII. p. 904. Edit. Amst. (607. Paris).
[14. ]As the Doge of Venice, who is crowned, and has the Title of Serene; tho’ not a Sovereign Prince.
[15. ]In Ligurin.
[16. ]See Puffendorf, B. VII. Chap. VI. § 12.
[17. ]He there speaks of such as had only the perpetual Command of the Armies. Polit. Lib. III. Cap. XIV. p. 256. Edit. Paris.
[18. ]Ibid. p. 357.
[19. ]Lib. I. § 53.
[20. ]See the Passage quoted at Length, on Pufendorf, B. VII. Chap. I. § 7. Note 1.
[21. ]This Point of History is treated at large, B. II. Chap. IX. § 11.
[1 ]See Note 5, on Pufendorf, B. IV. Chap. IX. § 7. second Edition.
[2. ]We have an Instance of a King chosen for a Time in Nicephoras Gregoras, Lib. IV. Grotius.
[3. ]Reges denique. Thus it stood in all the Editions before mine: But I chose to read Reges plerique, The Generality of Kings. The Sequel of the Discourse necessarily requires this Correction; and the Author himself uses the same Expression, § 14. Plerique Imperia summa non plenè habentur. Besides, the Mistake was so gross, that Mr. De Courtin has, I perceive, corrected it in his Translation, without mentioning it.
[4. ]Our Author’s Distinction of Patrimonial and Usufructuary Kingdoms, has been adopted by Pufendorf, B. VII. Chap. VI. § 16, 17. and by the Generality of Commentators and other Writers. But the late Mr. Cocceius, Professor in the University of Franckfort, on the Oder, rejects it, in a Dissertation De Testamento Principis, Cap. II. § 16. And, since him, Mr. Thomasius has reasoned on it very judiciously, in his Notes on Huber, De Jure Civitatis, Lib. I. Sect. III. Cap. II. § 19. p. 69, 70. The Substance of what he says is this. It is acknowledged that the Sovereign Power may be disposed of in Traffick. This supposes nothing contradictory to the Nature of the Thing, and if the Compact between the Prince and the People, expressly allows the Prince a full Right of alienating the Crown, this may be calleda Patrimonial Kingdom, in Opposition to which others may be termed Usufructuary. But in Questions relating to this Matter, the Enquiry is commonly concerning Kingdoms founded without such a formal Compact; the Examples of such Compacts being very few; for we shall hardly find any but that made between the Egyptians and their King, mentioned in the sacred History, Genesis, XXVII. 18, &c. and the Disputes of the Doctors about the Power of alienating the Crown, relate to Cases in which there has been no Compact between the Prince and People on that Point. In order to extricate themselves from this Perplexity, some have invented the Distinction under Consideration, which only confounds the Matter, and is reduced to a vitious Circle. For when it is asked, what Princes have a Power of alienating the Crown; the Doctors reply, such as are in Possession of a Patrimonial Kingdom; and when we desire to know what is meant by a Patrimonial Kingdom, we are told it is a Kingdom of which the Prince has a Power of alienating the Crown. Some indeed pretend that successive Kingdoms are Patrimonial; others give that Appellation to despotic Kingdoms; while others confer it on such as have been conquered, or established in some other Manner by a forward Consent of the People. But all this lays no solid Foundation of a Right of Property, strictly speaking, and attended with a Power of alienating the Crown. Succession, according to Grotius himself, only continues the Right of the first King. The Turkish Empire is the most despotick in the World; and yet the Grand Signior has no Power either to alienate the Crown, nor change the Order of Succession at Pleasure. Nor does it follow from a People’s submitting by Force or Necessity, that they have by that Action invested the Prince with a Power of transferring his Right to whom he please. It is in vain to object that if, in that Case, the Prince had demanded such a Power, the People would have given it. For Silence, on the contrary, leaves Room for presuming that there was no such tacit Concession; because had the King pretended to acquire a Right of alienating the Crown, it was his business to explain himself, and make the People explain themselves on that Article; and the People not having spoken of it, as is here granted, is and ought to be supposed to have had no Thoughts of giving the King a Power, which enables him to change their Master as often as he thinks fit. A Door is opened to Chicanry, if Contracts are to be explained beyond their express Terms, under Pretence that the Parties would probably have extended their Engagements farther, if they had been pressed. Such Conjectures have no Place, but when the Question turns on the Meaning of an ambiguous Clause. In a Word, the Sovereign Power, however conferred, does not in itself implya Right of Propriety: They are two very different Ideas, which have no necessary Connexion. As therefore a Prince, by transferring the Property of an Estate to a Subject, does not thereby give him a Right of Sovereignty over that Estate: So, when a whole People submits to the Dominion of any one, such a Grant does not of itself imply a Concession of a full Right of Propriety. So that the Conveyance of Property does of itself and in its own Nature include a Power of alienating, unless such a Power is taken away by a Clause in the Contract; but, on the contrary, the Conveyance of Sovereignty does not of itself include a Power of alienating, unless it is specified by a formal Clause. Nothing therefore remains to be considered but the numerous Examples of Alienations made by Sovereigns. But either those Alienations took no Effect; or they were made or approved by an express or tacit Consent of the People; or have been supported by Force only. See my 20 Note on § 12. Whatever becomes of this Question, I am of Opinion it ought to be laid down as a Principle, that where any Doubt arises, every Kingdom ought to be reckoned Non-patrimonial. See Mr. Bohmer’sIntroductio ad Jus Public. Univers. p. 228.
[5. ]The Author means Bodin, who explains himself on that Subject in his Treatise of the Commonwealth, B. I. Chap. VIII, and who has been followed by several Authors, and among the rest by Pufendorf, B. VII. Chap. VI. §. 15.
[6. ]If therefore the People confer all the Right of exercising all the Parts of Sovereignty on any one for a Time, without consulting any one, or being accountable for his Conduct; it may be said he is a Sovereign during that Time. I do not understand why several Authors so obstinately maintain that there can be no Sovereignty for a Time. Either this is a mere Dispute about Words, or the Reasons alledged are no better than so many different Ways of begging the Question. The Power of commanding, even absolutely, is of such a Nature that it may be conferred for a Time, without ceasing to be such. If a private Person sells his Liberty for a Term of Years only, he will be as effectually a Slave during that Time, as if he had taken a Master for Life. It is true, in that Case the Master has no Right to sell him; but the Power of Alienation is not, according to the Law of Nature alone, a necessary Consequence of Slavery, much less of Sovereignty in general. It is pretended that the Limitation of Time destroys the Nature of Sovereignty; but then it is falsely supposed that all Sovereignty ought to be perpetual. It is said that a sovereign Power conferred for a Time, is of Course dependent; which I deny. It is indeed conferred by the People, and they designed to confer it only for a Time; but the Moment the Person, on whom it is conferred, is actually invested with it, he is above the People, and is no more dependent on them, during the Time fixed, than a Prince established for Life; all the Difference is, that when the Time is expired, his Superiority and Independence are at an End. It is farther objected, that such a Limitation confines the Sovereignty to certain Acts of Sovereignty. But it is sufficient that the Person established Sovereign for a Time, is thereby possessed of a Power of exercising all the Acts and Parts of the Sovereignty, as he shall judge proper, and according to the Exigency of Circumstances, it is not necessary that he should actually have Occasion to exercise them all. If this is not granted, a King, who either has reigned, or, according to the Course of Nature, can reign but a very short Time, would not be a Sovereign. Those, who maintain that Perpetuity of Duration has a necessary Connection with the Nature of Sovereignty, are not aware that this Assertion will carry them farther than they would wish. For it would follow, that all Sovereignty ought to extend as far as it is possible, and consequently must be successive; because that is the only Way to render it perpetual, while Princes are under the same Necessity of dying, as the meanest of their Subjects. It would likewise follow, that however a Sovereign behaves himself, he cannot be deposed, even though he should carry his Tyranny to the utmost Excess; or at least, that a Prince, who is deposed, was not a Sovereign during the Time of his good Administration. But our Antagonists agree with us in owning that, in that Case, the most absolute Princes forfeit the Sovereignty; and as all Princes may commit such Abuses, it is evident that on that Account all Sovereignty is for a Time. Now if it is not contrary to the Nature of Sovereignty, that it should end at a Time, which indeed was not limited, but which might come, and was considered as possible to come, I do not see why it may not end at a fixed and determined Time. There are several other Conditions, on which we may conceive that the sovereign Authority is expressly so conferred on a Person, that the Execution or Defect of such Conditions may render it a Power for a Time. Let us suppose, for Example, that in an elective Kingdom, where it is not thought proper to establish a Regent, the People desirous of settling the Crown on the late King’s Son, who is a Minor, choose another King, on Condition that he shall resign the Crown to the young Prince, if he lives to the Time of his Majority. This would certainly be a Sovereignty for a Time. Hence we may conclude, if such a Sovereignty, because not perpetual, is therefore less advantageous to the Possessor, and is esteemed less glorious; it is not in itself a less real Sovereignty. All that remains therefore is to enquire whether the Instances alleged are to the Purpose or not. See the following Note.
[7. ]So that, says our Author in a Note on this Place, the People were obliged to have Recourse to Intreaties, for saving the Life of Q. Fabius Maximus Rullianus, General of the Cavalry (Magister Equitum) whom L. Papirius Cursor, the Dictator, had condemned for giving Battle without his Orders. Livy.Lib. VIII. Chap. XXIX, XXXV. The Author, who had before spoken of the Dictatorship, as an Instance of temporary Sovereignty, (§. 8.) observes likewise in a Note, which I have reserved for this Place, that when M. Livius Salinator was Censor, he disfranchised all the Tribes (aerarias reliquit) except one, and thus shewed he had a Power over the whole People. Liv.Lib. XXIX. Cap. XXXVII. num. 13. But how considerable soever the Power of the Censors was in certain Respects, it was not universal like that of the Dictators. Perhaps our Author made this Remark only with a View of shewing that, if the Censors were absolute, and above the whole People in what concerned their Office; much more ought we to consider the Dictators as such. But whatever was his Design, I think he has Reason to mention the Dictators, as a sort of temporary Sovereigns by distinguishing, as he does, between the Power of the Dictators, such as it was originally in the first Ages of the Roman Commonwealth, and that which they enjoyed in later Times, when it had suffered such gradual Changes, as divested it of the Character of intire Independence. In Regard to the former, which is here under Consideration, ancient Authors, both Latin and Greek, give us an Idea of a real Sovereignty for a Time. We have already (§. 8. Notes, 45, 46.) produced Passages from Livy on that Subject. Dionysius Halicarn. speaking of Titus Lartius, the first Dictator, stiles him a Monarch. He says, he had an absolute, independent Power in Affairs of War and Peace, and all others. That he was called Dictator, because he might command and prohibit what he pleased. That the Romans did not think it proper to give him a Title (that of King) which was odious to a free State, and conveyed an Idea of Oppression. That the very Appellation of Dictator expressed the Extent of his Authority; and that the Dictatorship was in Reality an elective Tyranny, or Royalty. Lib. V. Cap. LXXIII. He had before observed that the Senate decreed that this extraordinary Magistrate should be accountable to none for his Conduct: That his Authority should be equal to that of Tyrants, (or Kings) and that he should be superior to all Laws. ibid. Cap. LXX. See also Polybius, Hist. Lib. III. Cap. LXXXVII. and Eutropius, Breviar. Hist. Rom. Lib. I. Cap. XI. In Reality the Dictator, according to the first Institution, exercised all the Parts of Sovereignty; and his Authority was limited only in certain Things of little Consequence, as might be easily made appear. All the Facts alledged, which seem to prove the contrary, are of a later Date; and, on examining what has been said by Boecler, in his Notes on our Author, Pag. 239, &c. by Obrecht, in his Dissertation De extraordinariis Populi Romani Imporiis [[sic: Imperiis; §. 41, &c,Pufendorf, as before quoted, and some other Writers, we shall find all their Objections fall to the Ground, by supposing this Distinction. A learned Man, who has published a short but good Dissertation de Dictatoribus Populi Romani, since I had written all I have here said on this Subject, maintains that, in the Cases in Question, the Dictators either did not exert their whole Power out of a Principle of Goodness, or were hindered in the Execution of their Office by the Senate, who thus exceeded the Bounds of their own Authority. See Chap. VIII. of that Dissertation, printed in 1717, in Mr. Jens’s, Fer c ulum Literarium.Aristotle furnishes us with a more ancient Example of a temporary Sovereignty, viz. that of the Aesymnetae, among the old Greeks, which, he says, was, properly speaking, an elective Monarchy: and differed from those of the Barbarians, only in not being Hereditary. Some of them governed during Life; others for a certain Time, or in some particular Affairs. Politic. Lib. III. Cap. XIV. p. 356. Edit. Paris.Dionysius Halicarn. compares the Power of the Dictators with that of the Aesymnetae, and supposes the Romans took that Form of Government from the Grecians. Antiq. Rom. Lib. V. Cap. LXXIII.]]
[8. ]It is to be observed that the Author speaks only of such as are appointed Regents in the Cases here specified, which happen but seldom; for those who have criticized him on this Occasion, seem to suppose he speaks of all Regents in general. In the second Note on this Paragraph he refers us to an Instance of the extraordinary Case in Question, which is given at large in Pufendorf, B. VII. Chap. VI. Note 4. The late Mr. Hertius, in a Dissertation De Tutela Regia, which is published in the first Volume of his Commentationes & Opuscula, &c. adds some others. Johnde Brienne, Viceroy of Jerusalem, was made Guardian of Baldwin II, and crowned as Emperor, on Condition that when his Ward, who was to marry his Daughter, came to Age, he should faithfully resign the Empire to him. See CharlesDu Fresne’sGallo-Byzantine History, B. III. Odo, or Eudo, Duke of Burgundy, being named Guardian to Charlesthe Simple, King of France, was crowned as King, that he might govern with more Authority. See Mr. Du Cange’sGlossary, under the Word Heredes;Alberic’sChronicle. An. 994. and Bussieres’sHistory of France, B. VI. p. 467. In the German Empire, Philip governed with the Title of King, during the Minority of his Nephew Frederic II. See Mr. D’Ursperg’sChronicle, p. 819, and that of Godfrey the Monk, An. 1196.
[9. ]The same is related of the ancient Hercli by Procopius, Gothic Lib. II. Cap. XIV, XV. Of the Lombards, by Paul Warnefrid, Lib. IV, VI. Of the Burgundians, by Ammian Marcellin, Lib. XXVIII. Cap. V. Edit. Vales. Of the Moldavians, by Laonic Chalcondyl. Of the King of Agades in Africa, by Joan Leo, Lib. VII. In Norway, whoever killed a King, succeeded to the Throne, as we learn from Guillilm Neubrig. We have Instances of the same kind among the Quadi, and Jazyges in the Fragments of Dio.
[1 ]Diogen. Laert.Lib. VII. § 124.
[2. ]Lib. I. Cap. XVII. num. 3. Lib. II. Cap. XII. num. 2. Cap. XV. num. 3. Lib. XLV. Cap. XVIII. num. 2.
[3. ]De Legibus. Lib. III. Cap. X.
[4. ]Annal. Lib. 1. Cap. 1. num. 1. Idem De Morib. German. Cap. XXXVII. num. 6.
[5. ]Histor. Indic. Cap. XI. Edit. Gronov.
[6. ]Natur. Quaest. Lib. II. Cap. XLIX. We have an Instance of this Presage in the History of Genoa, by Peter Bizar.B. XIX. The Author, in a Note on this Place, produces the following additional Passages to prove that the ancient Greek and Latin Writers opposed Liberty to Monarchical Government. This Teres, the Father of Sitalces, was the first who enlarged the Kingdom of the Odrysae so much, that he exceeded the other Kings of Thrace; for great Part of Thrace is free.Thucyd.Lib. II. Cap. XXIX. Edit. Oxon. Men are not to speak their Minds in the same Matter in a free State, as under Kings,Seneca Pater Suasor I. p. 4, 5. Edit. Elziv. 1672. Josephus distinguishes between Kings and free States, Antiq. Lib. XIII. Cap. XVII. Cicero says he had procured the Assistance of free States, and confederate Kings. Ad Famil. Lib. XV. Epist. IV. And Pliny speaking of some Nations as free, adds, that they were not subject to Kings, Hist. Nat. Lib. VI. Cap. XX.
[7. ]Free Cilicians.Cicero mentions them Ad Fam. Lib. XII. Ep. IV. & ad Attic. Lib. V. Ep. XX.
[8. ]Geograph. Lib. XII. p. 822. Edit. Amsterd. (547. Paris.)
[9. ]See Paragraph 21.
[10. ]In the Law Definition of Postliminium, which is called the Right of recovering a Thing lost, and restoring it to its former State, established between us, free Nations and Kings, by Laws and Customs.Digest.Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. XIX.
[11. ]Livy, XXXVIII. Cap. XI. Num. 9.
[12. ]Idem. Lib. I. Cap. XXXVIII. Numb. 2.
[13. ]Our Author’s Argument, which is not delivered very clearly, stand sthus. When it is said, that free Persons are not to be sold, this is to be understood of single Persons, not of the whole Body of a People. Now single Persons who are Members of a People, are free, though the whole People is not so; for the Liberty of a Man consists in his having no particular Master, who has a Power of commanding his Actions, and even to dispose of his Person, and Estate; and those, who are Members of a People not free, have, as such, but one common Master, who has a Right to command them as his Subjects. Thus when a King alienates his Crown, we cannot say he disposes of his Subjects, considering each of them in particular; for, after he has sold or given away his Kingdom, each Subject is still as free as before, and has only another Sovereign. As to the Body of the People, barely by having a King, really such, it ceases to be free; and thus, even according to the Maxim objected against our Author, such a People may be sold, their own Way, that is, the Prince, invested with a full Right to govern them as long as he lives, may transfer his Right to another; for in this consists the Alienation of the Sovereignty. But then it must be observed that our Author does not pretend that every Sovereign Prince has, as such, a full Right to alienate the Sovereignty; he confines this Power to some only, that is, to such as have acquired the Kingdom by just Conquest, or by making his Advantage of a pressing Necessity, which obliged the People to put themselves under his Dominion without Reserve or Restriction; as is evident from what he says, § 11, and § 14. But we have shewn, in Note 4 on § 11, that this Distinction of our Author is not well grounded; no Sovereign having a Right to alienate his Dominions, without a Concession from his Subjects, either formal, or tacit, but clear, in what Manner soever he obtained the Crown.
[14. ]This Right rather relates to the Succession to the Freed-Man’s Estate, than to his Person. See Institut.Lib. III. Tit. IX. De Adsignatione Libertorum.
[15. ]See B. III. Chap. VIII. § 2. and Pufend.B. VIII. Chap. V. § 8. As the Objection, which is Mr. Hotoman’s (Quaest. illustres. Cap. 1.) would, if well grounded, prove only that the conquered People ought to be dependent on the victorious People, or on the State rather than the King, under whose Command the Conquest was made; and not that the Dominion gained over the vanquished People cannot be accompanied by a Right of Property. So too our Author’s Reply to this Objection proves no more than that, when a Prince has carried on a War at his own Expence, as he explains the Matter, he acquires to himself, and exclusively of his Subjects, a Sovereignty over the People conquered, whether his Kingdom is patrimonial, or not. But it does not thence follow, that the most lawful Acquisition, made by Conquest, implies in itself a Power of alienating the People conquered. See § 11. Note 4.
[16. ]The Emperor Marcus Antoninus, having drained his Treasury in the Marcomannic War would not lay any new Tax on the People, but exposed his Plate to publick Sale, with his Chrystal and Porcelane Vessels, his own, and his Wife’s rich Clothes, and a great Quantity of Jewels. Grotius.
[17. ]For this Ferdinand, King of Arragon, appropriated to himself half the Kingdom of Granada, which he had conquered with the Revenues of the Kingdom of Castille, while his Wife Isabella was alive; as we learn from Mariana, Histor. Hispan. Lib. XXVIII. Grotius.
[18. ]That is from such Things as compose the Substance or Essence of the Inheritance, and which were fully enjoyed by the Possessor, before Restitution. This is our Author’s Meaning, and the true Sense of the Law, which he has in View; so that Ziegler’s Criticisms on both are mere Chicanry. See the Law itself Digest.Lib. XXXVI. Tit. I. Ad Senatuscons. Trebell. Leg. XVIII. § 2.
[19. ]Those who accompanied Baldwin in his Eastern Expedition, allowed him half of the Cities, Provinces, Imposts, and Plunder, they had taken. Grotius.
[20. ]In Regard to those Instances it should be observed, first, That we are not sufficiently acquainted with the Terms on which the Princes or States here mentioned acquired the Sovereignty over the respective People. There might have been some formal Clause, by which those People gave their Sovereign a Power of alienating the Sovereignty. Secondly, Those Alienations were frequently supported by Force alone, as has been observed, Note 4. on § XI. and became lawful only by Vertue of a subsequent Consent, given when the People, thus alienated, submitted without Opposition to their new Sovereign. Thirdly, There might have been a tacit Consent, entirely free, at the very Time of the Alienation; either when the People, to be alienated, expressed no Opposition to that Action, though not under the Constraint of superior Forces, or because, a Custom being introduced into the East, and other Countries, of annexing such a full Power of Property to the Right of absolute Sovereignty, as authorized the Prince to alienate his Dominions at Pleasure, those who submitted to such a Sovereign, were judged to have done it in Conformity to the established Custom, unless they expressly declared the contrary. So that all these Examples do not amount to a Proof that the Power of Alienation is necessarily attached to the most absolute Sovereignty, considered in itself, and however acquired.
[21. ]Geograph. Lib. VIII. p. 558. Edit. Amst. (363 Paris.)
[22. ]It is not certain that the Cities which Hiram gave Solomon, (for so it is in the Text, not restored) were the same he had received as a Gift from the King of the Hebrews. See Mr. Le Clerc’s Commentary of the Passages, quoted in the Margin.
[23. ]The same Hercules having conquered the Dryopes, whose Country was situated near Parnassus, made a Present of them to Apollo; as we learn from Servius on Aeneid. IV. v. 146. Aegimius, King of the Dorians, gave Hercules part of his Dominions, as a Reward for his Assistance, in the War against the Lapithae.Apollodor.Biblioth. Lib. II. Cap. VII. § 7. Edit. Paris. Cychreus King of Salamis, dying without Issue, left his Kingdom, by Will, to Telamon. Idem. Lib. III. Cap. XI. § 7. Peleus received a third Part of the Dominions of Eurytion King of Phthia, as a Portion with his Daughter. Idem. Lib. III. Cap. XII. § I. Porca King of Alba bequeathed his Kingdom to Numitor, his eldest Son. Livy, Lib. I. Cap. III. Num. 10. Grotius.
[24. ]This Fact is recorded by Demosthenes, in his Oration Demalèobitalegatione, p. 251. Edit. Bas. 1572.
[25. ]Iliad. Lib. IX. v. 149, &c. See Servius on Virgil, Ed. VI. v. 48. and Pausanias, Corinthiac, Cap. XVIII. p. 60. Edit. Wech. Thus likewise in Homer, Jobates gave his Daughter to Bellerophon, with half his Royal Honours; which Servius explains, with Part of his Kingdom. On Aeneid. v. 118. Peleus gave Phenix the Country of the Dolopes, lying on the Borders of Phthia, as Phenix himself testifies. Iliad. Lib IX. v. 479, 480. Lanassa marrying Pyrrhus, King of Epirus had for her Portion the City of Corcyra, conquered by her Father Agathocles, King of Syracuse.Plut.in Pyrrho.Grotius.
[26. ]Lib. V. Cap. XI. Num. 2.
[27. ]Ammian. Marcellinus, speaking of Persia, says, tho’ not conformably to the Truth of History, that Alexander the Great bequeathed that whole Kingdom to one of his Successors. Lib. XXIII. Cap. VI. p. 398. Edit. Vales. Gron.Grotius. See Henry De Valois’s Note on that Passage.
[28. ]Valerius Maximus tells us, Attalus did this out of a Principle of Gratitude, Lib. V. Cap. II. Num. 3. Sertorius affirmed, that on that Account, the Roman People had a very good Title to that Country.Plut.Vit. Sertor. p. 580. Tom. I. Edit. Wech.Grotius.
[29. ]Lib. II. Cap. XX. Num. 3.
[30. ]Orat. II. De Lege Agrar. contra Rull. Cap. XV. p. 413. Edit. Graev.
[31. ]Appian of Alexandria tells us, that Apion, a Bastard of the Race of the Lagides, left the Country of Cyrene, (to the Roman People) by his Will. De Bell. Mithridat. Ammian. Marcellin. speaks of this Legacy, Lib. XXII. Cap. XVI. We became possessed of the drier Libya, by the Disposal of King Apion; we received Cyrene, and the other Cities of Libya Pentapolis from the Liberality of Ptolomy: For that King of Cyrene was called both Apion and Ptolomy. See Breviar.Liv. Lib. LXX. That Prince himself came to the Throne by his Father’s Will, as we learn from Justin, Lib. XXXIX. Cap. V. Num. 2. Eusebius in his Chronicle at the Year 1952, speaks of an other Apion, mentioned by Ammian. Marcell. who had made the Roman People Heirs of the Dry Libya. [But see Henry De Valois’s Notes on that Place.] To these may be added the following Examples. King Arsaces, by his Will, divided Armenia in such a Manner, that the greater Part of it fell to his Son Arsaces, and the smaller to Tigranes.Procop.De Aedificiis, Lib. III. Cap. I. We learn from Josephus, that the Emperor Augustus having allowed Herod to leave the Kingdom of Judea to which of his Sons he pleased, that Prince altered his Will several Times, Antiq. Jud. Lib. XV. XVI. Among the Goths and Vandals the Kings disposed of their Conquests by Will. Gizeric, King of the Vandals, followed this Custom in Regard to his Spanish Dominions. Procop.Vandalic. Lib. I. Cap. VII. Theuderic, King of the Ostrogoths, gave his Sister Amalesfrida the Country of Lilybaeum, in Sicily, for her Portion. Ibid. Cap. VIII. We find the same Practice established in other Nations. Pepin having conquered Aquitain, divided it among his Children. Fredegar, Chron. We have Testimentary Disposals of Burgundy, in Aimonius III. 68, 75. The King of Fez bequeathed Fez to his second Son. LeoAfer, Lib. III. See also what the same Historian says of Bugia, Lib. V. The Sultan Aladin left Ozmin several Cities by his Will. Leunclav.Hist. Turc. Lib. II. The King of Germianum, who married his Daughter to Bajazet, gave her what he possessed in Phrygia. Idem. Lib. V. Musal divided the Turkish Dominions in Cappadocia among his Children. Nicetas, Lib. III. Chuschin Bega gave Murat the Cities lying near the Euxine Sea. Leunclav.Lib. I. Bajazet gave Stephen the Cities of Servia, in Honour of his Wife, Sister to the said Stephen. Idem. Lib. VI. The Sultan Mahomet bequeathed his Kingdom to Murat. Idem. Lib. XII. Jacup Beg, Prince of Germianum, appointed the Sultan Murat Heir of his Dominions. Idem. Lib. XIV. Mahomet, Emperor of the Turks, had thought of leaving his European Dominions to his Son Amurat, and those in Asia to his other Son Mustapha.Chalcocondyl, Lib. IV. The Emperor Basil Porphyrogennetus was by David Curopalates made Heir to his Possessions in Iberia.Zonar. in Basil Porphyrog. I now come to the Practice of such Christians as were victorious in the East: Michael Despota divided Thessaly among his Children. Nicephor. Gregoras, Lib. IV. The Prince of Etolia left Athens to the Venetians, and sold Boeotia to Anthony.Chalcocondyl.Lib. IV. The Prince of Arcadia gave his Daughter, Messina, It home, and those Parts of Arcadia that bordered on the Sea, for her Portion, on her Marriage with the Son of Thomas the Grecian Emperor. Idem. Lib. V. Prince Charles made a Will, by which he divided Acarnania among his natural Sons; and gave several Parts of Etolia to his Mother’s Relations. Id. Thus the Kingdoms of Jerusalem and Cyprus were partly bequeathed by Will, and partly alienated by Contracts. Consult Bembo, Hist. Ital. Lib. VII. and Paruta, Lib. I. for what relates to Cyprus. The City of Castro in Sardinia, and others depending on Cagliari, were Gifts to the Genoese.Bizar, De Bello Pisano, Lib. II. Robert gave Dyrrachium and Aulone to Baimund, his younger Son. Anna Comnena, Lib. V. Cap. II. Alphonso, King of Arragon, who had conquered the Kingdom of Naples, left it to Ferdinando, his natural Son: And Ferdinando bequeathed some Cities in that Kingdom to his Grandson. Mariana, Hist. Hisp. Lib. XXX. Grotius. See Note 20. on this Paragraph.
[32. ]The Passage stands thus in Cicero, Orat. II. De Lege Agrar. contra Rull. Cap. XVI. p. 415. For who among you does not know it is said, that that Kingdom fell to the Roman People by the Will of King Alexander?
[33. ]Which (Paphlagonia) became hereditary to his Father, not by Force, or Superiority of Arms, but by Vertue of a Will, by which he had been adopted, and by Default of Heirs of the Family. Lib. XXXVIII. Cap. V. Num. 4.
[1 ]Vopiscus, a Roman Senator, declared that the Empire ought not to be left by Will, like Lands and Slaves. Tacit.Cap. VI. Salvian, speaking of Nebuchadnezzar, King of Babylon, makes the following Observation, For he (the Prophet) spoke to the King; to the King not of one single City, but, as was then supposed, of the whole World; who therefore could not bequeath the Nations which he governed, to the Poor; bestow the several barbarous People under his Jurisdiction, on the Needy, like Money; or convert his extensive Kingdom into a Patrimony for the Indigent. Break off thine Iniquities, says he, by shewing Mercy, that is, give the Poor Money, because you cannot bestow your Kingdom upon them: Distribute your Substance among them, because you cannot dispose of your Crown. Ad Eccl. Cathol. Lib. I. p. 356. Edit. Paris. 1645. Grotius.
[2. ]The Author here has Hotoman in View, who, in his Quaestiones illustres, Cap. I. criticises on the German Historian’s Observation.
[4. ][[Barbeyrac’s notes are wrongly numbered at this point. He introduces a note 3, which does not correspond to any number in his text. It contains the note that Grotius himself put at the point where Barbeyrac put note 4. See the Capitularies of Charlesthe Bald, Cap. XII. Conventus ad Carisiacum. To this Purpose is the Will of Pelagius, by which he left Spain (or the Kingdoms of Leon, Asturias, and Castille) to Alphonso and Ormisinda; as also some Particulars in Saxo Grammat. relating to Denmark. We are not therefore to be surprized that the Wills of some Princes have been set aside, because not ratified by the People; as that of Alphonso, King of Arragon,Mariana, Hist. Hisp. Lib. X. p. 499. and that of Alphonso, King of Leon, by which he had appointed his Daughters his Heirs, exclusive of his Sons. Idem. Lib. XII. p. 577. Grotius.
[5. ]He made them confirm his Will by an Oath, as Eginhart assures us in another Work, or in his Annals. The learned Boecler, who quotes the Passage in his Short History of the ninth and tenth Ages, Tom. III. Dissert. p. 20. is of Opinion that the Succession was fixed and constantly observed at that Time; in which he is joined by several other Authors. But it is not easy to reconcile this with all the Precautions taken by Charlemagne, and his Successors, for securing the Disposals they made. The Matter was carried so far, that Religion, or rather Superstition was called in to their Assistance. This Proposal (of Charlemagne) was received with great Satisfaction by all present; for they thought him divinely inspired on this Occasion, for the Good of the Kingdom; says Eginhart, De Vit. Car. Mag. Cap. XXX. See the other Authorities alledged by Mr. Schminkre, in his last Edition of that Work.
[6. ]We have something like this in Cassiodore, Lib. VIII. Epist. III, &c. Thus the Agreements made between Sanches and James, concerning the mutual Succession to the Crown of Aragon, were confirmed by the Nobility; as we learn from Mariana, Hist. Hisp. Lib. X. p. 512. That Historian says the same of the Will of Henry King of Navarre, by which he made John his Heir, Lib. XIII. p. 597. And of that of Isabella Queen of Castille, Lib. XXVIII. (or Append. Hist. Hisp. p. 243). Grotius.
[7. ]Lib. XL. Cap. LVI. Num. 7.
[8. ]Several Objections may be made in this Place. First, The Fact itself is false. We find no Account of this pretended Donation, either in Aimonius, in Eginhart’sAnnals, in Anastasius, or in Theganus, De Gestis Ludov. Imp. nor in the uncertain Author of that Emperor’s Life. The Whole is founded on a spurious Act, of which two different Copies are produced; one, which Raphael Volaterran (Geogr. Lib. III.) tells us, he took from the Vatican Library; the other appears in the Canon Law, Distinct. LXIII. Laïci, etiam principes magni, Episcopos non eligant, Cap. XXX. See Mr. Du Plessis Mornay’sMystery of Iniquity, pag. 336, &c. Edit. Saumur, 1612. as also Herman Conring, De Germ. Imperio Rom. Cap. VII. and Gronovius’s Notes on this Place. Secondly, It appears from History, that the Popes were not Sovereigns of the City of Rome, and its Dependencies ’till long after the Time of Lewis the Debonnaire. The Donation of Constantine is a Fable, as is owned by the most understanding and sincere Authors of the Romish Communion. Among others, see Laur. Valla’s Oration, De falsò creditâ & ementitâ Const. M. Imp. Rom. donatione, published in 1517, and dedicated to Leo X. When the Popes had engaged those Cities of Italy, which remained in the Hands of the Emperors of the East, to shake off the Yoke of those Princes, tho’ they had found Means to make themselves Masters of the Revenues, and temporal Government of the City of Rome, and Places adjacent: This was not done in Quality of real Sovereigns, acknowledged as such. And when Pepin came in to their Assistance against the Lombards, he bestowed the City of Rome, and the other Parts of the Exarchate of Ravenna on the Popes, on that Foot only. Some Authors say that the Romans had promised Pepin the Imperial Crown. See the Life of Charlemagne, by Boecler, in his History De Reb. Saec. IX. & X. Tom. III. p. 23. of the Collection of his Dissertations. Charlemagne confirmed the Donation made by his Father, and even before he was declared Emperor, took Cognizance of the Affairs of Leo III. who immediately after his Promotion to the Pontificate, had presented that Prince with the Keys and Standard of Rome, intreating him to depute a Person for receiving the Homage of the Romans, and giving an Oath of Allegiance; as appears by the very antient Annals of France, Ann. 796. See the Notes on Eginhart, Cap. XXVIII. last Edition. In the Will of Charlemagne, as given us by Eginhart, Cap. XXXIII. Rome is mentioned as one of the metropolitan Cities of his Dominions. See Henn. Arnisaeus, De Subjectione & Exemptione Clericorum,&c. Itemde Translatione Imperii Rom. Cap. VI. VII. Herman Conring.De Germanorum Imp. Romano, Cap. VII. And a Book intitled, Les Droits de l’Empire sur l’Etat Ecclesiastique,&c. translated from the Italian, and printed in 1713. So that I do not see how it can be affirmed, that Lewis the Debonnaire restored the City of Rome to Paschal, since the Popes had constantly possessed it on the Foot already mentioned, from Pepin’s Time; and before that had no greater Power, carrying the Resemblance of Sovereignty, which is the Power in Dispute. A learned Italian has lately ventured to maintain, not only that the Popes had no more than a dependent Jurisdiction; but also, that the Romans did not lose their Liberty by calling in the Kings of the Franks; that they gave Charlemagne, and his Successors, only the High Domain of Rome; that they submitted to the Pope as their Head, only in the same Manner as the Venetians do to the Doge; and that till the Year 1431, they defended their Liberties as far as was in their Power, against the supreme Pontifs of the Church. See Mr. Le Clerc’sBiblioth. Choisie, Tom. XXIII. Art. II. But whatever becomes of this Question, or what ever Appellation is given to the Right of the Emperors over the City of Rome, it is evident from History, that they exercised it till the Reign of Henry IV. and the Pontificate of Gregory VII. that is, during the Space of almost three Ages. Thirdly, The Answer here made by our Author, seems neither exact nor to the Purpose. He undertakes to refute Hotoman, who had alledged the pretended Donation of Lewis the Debonnaire, as an Instance of the Power of alienating the Crown, which, according to him, belonged to the Kings of the antient Germans. Now, supposing the Truth of that Fact, which our Author admits, the Question is not, How the Sovereignty of the City of Rome was formerly translated to the Kings of France, nor in whose Favour they divested themselves of it? It should only be enquired whether Lewis the Debonnaire made that Restitution by his own Authority , or with the Approbation of the People.
[1 ]See Mariana, speaking of Alphonso V. King of Leon. But the Will of King John, which names Regents of the Kingdom, was disapproved of by the Grandees; as we learn from the same Historian, Hist. Hisp. Lib. XVIII. Grotius.
[2. ]Ptolomy King of Aegypt made the Roman People Guardians to his Son. Valer. Maxim.Lib. VI. Cap. VI. Num. 1. Grotius.
[3. ]Justin.Lib. XVII. Cap. III. Num. 10.
[4. ]Idem. Lib. XIII. Cap. II. Num. 14.
[5. ]The learned Gronovius finds Fault with our Author, for having ranked the Lesser Asia, where Eumenes reigned among the patrimonial Kingdoms, acquired by Right of Conquest; for, says he, that Prince did not conquer Asia, but received it as an Inheritance from his Father Attalus, and his Dominions were enlarged by the Romans, in return for his Assistance, in the War with Antiochus. But our Author does not pretend that Eumenes himself conquered the Lesser Asia; he only means that that Country was originally a Conquest. In Asiâ Minore, bello parta, Rex Eumenes Attalo, filio suo, fratrem suum tutorem dedit. That is, In the Lesser Asia, which had been gained by Conquest, King Eumenes, &c. Now it is certain, that Alexander the Great had conquered Asia, and that, after his Death, it descended to his Successors with the same Right; and consequently, was a patrimonial Kingdom, according to our Author’s Principles. See Strabo, Geograph. Lib. XIII. p. 925, 926. Edit. Amst. (623, 624. Edit. Paris.) To which it should be added, that what the Romans gave Eumenes, they had acquired by Force of Arms; and in making that Donation, they transferred their Right to him. The Commentator’s Criticism therefore is ill grounded; but he might have made one more just, by observing, that, according to Plutarch, quoted by our Author in his Margin, Eumenes not only appointed his Brother Attalus Guardian to the Heir of the Crown, and Regent of the Kingdom during the Minority, but really and absolutely left him the Kingdom itself, and obliged him to marry his Widow. For which Reason the Philosopher gives it, as an excellent Instance of fraternal Friendship, that Attalus, the Brother here mentioned, would not prefer any of the Children which he had by his Sister in Law, then his Wife, but took Care of his Nephew’s Education, and, as soon as he came to Age, placed him on the Throne, Tom. 11. p. 489, 490. This Want of Exactness in our Author is therefore the more remarkable, because the Fact thus related, conformably to the Sense of the Greek Writer, was still more to his Purpose, as it shews what Liberty Kings, who looked on the Kingdom as their own Patrimony, took in disposing of it. Strabo indeed relates the Matter in a different Way; he speaks of Attalus as having been named Guardian only of the King’s Son, and Regent of the Kingdom; but he tells us that Attalus dying, after a Reign of twenty one Years, left the Crown to his Nephew. Geogr. Lib. XIII. p. 926. Edit. Amst. (624. Edit. Paris.)
[6. ]The Author takes this Fact from Livy, Lib. XXIV. Cap. IV. The learned Gronovius takes Notice of two Mistakes on this Occasion. First, That this Hieronymus was Grandson to Hiero; as appears from the very Words of the Roman Historian; for Gelo, the Father of Hieronymus, was dead. Secondly, That the Kingdom in Question was not patrimonial, since this Hiero, the second of that Name who had reigned in Sicily, was made King by the formal and express Consent of the People; as we learn from Justin, Lib. XXIII. Cap. IV. Num. 1, 2. So that Instance is so far from confirming our Author’s Principles, that it actually destroys them.
[1 ]See Pufend.B. VII. Chap. VI. § 10, &c.
[2. ]The Emperor Trajan, when he was chosen Consul by the free Votes of the People, took an Oath that he would discharge that Office faithfully, submittinghimself and his whole Family to the Divine Vengeance, if he knowingly and wilfully violated the Laws.Pliny, Paneg. Cap. LXIV. Num. 3. Edit. Cellar. Adrian swore he would never punish a Senator, till he had been condemned by the Senate.Spartian.Vit. Hadrian. Cap. VII. The Emperor Anastasius took an Oath to observe, and put in Execution, the Decrees of the Council of Chalcedon; as we learn from Zonaras, Cedrenus, and other Writers. The later Greek Emperors took an Oath to the Church. See Zonaras, in the Life of Michael Rangabes, and elsewhere. We have an Example of the Promises made by the Gothic Kings in Cassiodorus, Var. Lib. X. 16, 17. Grotius.
[3. ]Our Author’s Meaning, and the Grounds of his Distinction, are these: Sometimes the People require, for Example, that the King shall raise Taxes only on certain Things, as on Lands or Commodities. In which Case the King has a Power of raising Taxes, which is a Branch of the Sovereign Authority; he is not obliged to consult the People, or enquire whether they think it necessary to impose extraordinary Taxes, or raise them in this or that Quantity; but then he can lawfully lay them only on such Things as are specified by the fundamental Laws. So that then the Limitation falls on the Exercise of the Power, not on the Power itself. The same is to be said, when the People have stipulated, that the King shall, in all civil and criminal Cases, cause the Laws of the Country to be observed, without depriving him of a Power to make others, which shall not be contrary to them: That he shall chuse him Magistrates only out of a certain Rank of Men: Or that he shall enter into no Offensive War, but on certain Conditions, and in certain Cases. But sometimes the People stipulate, that the King shall levy no Taxes, make no Laws, chuse no Magistrates, or engage in no War, without the Consent of the People; and then the Limitation of the Royal Authority affects the Power itself. For, tho’ the Prince is possessed of all the Parts of the Sovereignty, there are some which he cannot exercise without the People’s Consent. This deserves particular Notice; because the Commentators understand our Author’s Words as if he supposed a Division of the Sovereignty. Such a Division is mentioned in the following Paragraph; and the Difference is, that when the Sovereignty is really divided, the People exercise that Part of it which they have reserved to themselves, independently of, and without any Obligation to consult the King; whereas, in the Case under Consideration, the People cannot, for Example, make War of their own Heads; but have only a Right to require that the King shall not enter into one without their Consent; and when such a Consent is given, the King, not the People, makes the War.
[4. ]I see no Ground for this Distinction. All that the King doth in both Cases, contrary to his Engagements, seems to me equally unjust, and void in itself. The King, for Example, hath no more Right to impose Taxes on Commodities, or other Things excepted by the fundamental Laws, than to raise any without the Consent of the People, when he hath entered into a solemn Obligation to observe that Condition, which limits one Part of the Sovereignty. The Engagement is as real, and as strong, in the former as in the latter Case; and consequently, the King has no more Right to violate one than the other: So that, if what he hath done is not annulled, it is either for want of sufficient Strength in the People, or the Effect of their tacit Toleration and Ratification, who may wave their Right for Peace sake, or on other Considerations.
[5. ]Plutarch, De trib. generib. Rerum. pub. Tom. II. p. 826.
[6. ]Plutarch makes Artabanus a General under King Artaxerxes, speak thus, Tho’ we have a great Number of good Laws, the most excellent of all is to honour the King, and adore him as the Image of GOD, who preserves all Things. Vit. Themistoclis, Tom. I. p. 125. Edit. Wech. See Barn. Brisson.De Regno Persarum, Lib. 1. p. 22, &c. Edit. Sylburg.
[7. ]Lib. X. Cap. 1. Num. 2.
[8. ]Valerius Maximus, from whom our Author takes this Fact, gives it as an Example of great Insolence, Lib. IX. Cap. V. extern. Num. 2. See Brisson, De Regno Pers. Lib. I. p. 24. Edit. Sylburg.
[9. ]The Passage here meant by our Author occurs in the Cyropaedia, where the Historian tells us that Cambyses, having declared Cyrus his Successor in the Presence of the Nobility, whom he had convened for that Purpose, made that Prince promise on Oath to defend the Persians against their Enemies and maintain their Laws, to the utmost of his Power; and engaged the Persians, in the same solemn Manner, to support and defend the Crown and Dominions of Cyrus against all Attempts. To which he adds, that the Persians and their Kings entered into the same Engagements in his Time. Lib. VIII. Cap. V. § 12, 13. Edit. Oxon. It is surprizing that the learned Brisson should omit this Circumstance in his Collection De Regno Pers.
[10. ]I do not know where Diodorus of Sicily mentions this Oath; and very much doubt his saying any Thing of it.
[11. ]Josephus, in his Account of Queen Vasthi (Vasta) tells us there was a Law that would not allow the King to be reconciled to her. Antiq. Lib. XI. Cap. VI. p. 374. Edit. Lips. Such Laws were called Laws of the Kingdom, as is observed by Rabbi Jacchiades, on Daniel vi. 13. See Mariana, Hist. Hisp. Lib. XX. concerning the Laws of the Kingdoms of Spain.Grotius.
[12. ]Plutarch in the Life of Themistocles. We have no such Life in Plutarch. I am very much mistaken, if he had not his Eye on a Passage in that of Artaxerxes. The Fact is this. The Persians had a Law that when the King had nominated and solemnly declared his Successor, the Person so named should have a Power of making what Demands on him he pleased, and the King should be obliged to comply with him, if what he asked was possible. Darius, being thus appointed by his Father Artaxerxes, making Use of that Privilege, demanded Aspasia, one of the King’s Concubines. The King was displeased at the Request; however, as the Historian observes, he delivered the Lady, being compelled to it by the Law; but took her again soon after. Tom. II. 1025. Edit. Wech.
[13. ]Here our Author only refers to the XVII Book of Diodorus of Sicily; but probably he had the following Passage in View; where the Greek Writer makes a Remark on a Thing that Darius did out of Fear, after he had lost the Day near the River Issus. His Horses being frighted carried him in his Chariot into the Midst of his Enemies; whereupon he laid hold of the Reins himself, and thus was forced to put himself into a Posture unsuitable to his Dignity, and contrary to the Laws, which the Kings of Persia were obliged to observe. Hist. Lib. XVII. Cap. XXXIV. p. 580. Edit. H. Steph.
[14. ]The Law, here meant by our Author, and reported by Procopius, Lib. I. De Bell. Persico, Cap. V. forbad leaving the Crown to a Person, who had any bodily Imperfection or Deformity; or I am rather inclined to believe he was thinking of another Law, against depriving a Family of an Office, to bestow it on a Stranger. Ibid. Cap. VI.
[15. ]The same Historian speaks of a Law relating to the Fort of Lethe, which was altered by the King of Persia; but doth not approve of the Change. Ibid. Cap. V. Grotius.
[16. ]Lib. III. Cap. V. p. 102. Edit. H. Steph.
[17. ]See Lib. I. Cap. LXX, &c. p. 44, 45. Edit. H. Steph.
[18. ]By the Roman Laws, the Bodies of Tyrants were to remain unburied; as we learn from Appian, De Bello Civili. Lib. III. p. 873. Edit. Toll. (537. H. Steph.) The Emperor Andronicus Paleologus forbad the Burial of Michael, his Father, for having embraced some Doctrines of the Latin Church. Niceph. Greg.Lib. VI. Grotius.
[19. ]See Josephus, speaking of the two Jehorams; the one King of Judah, the other King of Israel. Antiq. Lib. IX. Cap. III, V. And what he says of Joash, King of Judah; ibid. Cap. VIII. Grotius.
[20. ]His Words are these: At Passaron, in the Territories of Molossia, it was customary for the Kings to sacrifice to Jupiter Ἀρειος, and take an Oath to the People of Epirus, to govern according to the Laws; and for the People to maintain his Power, according to the same Laws. In Pyrrh. p. 385. Tom. I. Edit. Wech.Grotius.
[21. ]Est quidem Fundus, non minùs quàm, &c. Thus the Passage stands in all the Editions of the Original before mine; where I have inserted the Word noster after fundus; which the Sense evidently requires; and then it runs thus: Lands held as Feoffments of Trust are no less our own, than if we possessed them with full Property, &c. I am very much mistaken, or our Author had that Law of the Digest in his Mind: Non ideo minûs rectè quid Nostrumesse vindicabimus, quòdabire a nobisDominium speratur, si ConditioLegati aut Libertatis extiterit, Lib. VI. Tit. I. De rei vindicat. Leg. LXVI.
[22. ]Our Author himself elsewhere asserts that this commissory Clause is tacitly included in all Treaties of Alliance. B. II. Chap. XV. § 15.
[23. ]See Martin Cromer.Polonic. Lib. XIX, & XXI. We have likewise an Instance of this Sort of Stipulation in the Chronicle of Lambert De Schafnaburg, on the Year 1074. in the Reign of Henry IV. Emperor of Germany.Grotius.
[1 ]See what I have said on Pufendorf’sLaw of Nat. &c. B. VII. Chap. IV. § 1. and on the Abridgment of The Duties of a Man and a Citizen. B. II. Chap. VII. § 9. Note 1. in the third and fourth Editions.
[2. ]This Example is not well applied. See Pufend.B. VII. Chap. V. § 15. who has given some more exact.
[3. ]In the Reign of the Emperor Probus, the Senate confirmed the Laws made by the Prince; took Cognizance of Appeals; created Proconsuls; and assigned the Consuls their Deputies. Vopiscus, in Probo. Cap. XIII. See also Gailius, Lib. II. Observ. LVII. Num. 7. and Cardinal Mantica, De tacitis & ambiguis conventionibus, Lib. XXVII. Tit. V. Num. 4. Grotius.
[4. ]See on this Subject Pufend.B. VII. Chap. IV. § 14.
[5. ]De Legib. Lib. III. p. 683, 684. Tom. II. Edit H. Steph. The Commentators pretend that the Example is not well applied; because as they tell us, it turns only on an Alliance. But on a careful Examination of it, we shall find that, pursuant to the Alliance, the Subjects had a Power of exercising some Acts of Sovereignty, independently of their Prince.
[6. ]We have several Examples of this Sort in the History of the Northern Nations. See Joannes Magnus, Hist. Sued. Lib. XV. & XXIX. Crantzius, Sued. Lib. V. Pontanus, Hist. Dan, Lib. VIII. Grotius.
[1 ]It is very probable, however, that in those Kingdoms, where a certain Assembly must approve of the Edicts and Ordinances of the Prince, this Approbation had originally more Force, and was a Kind of Limitation of the legislative Power, wisely established for preventing Abuses. But in Process of Time, the Kings found Means to reduce it to a Verification, that is, to a bare Formality; none of the Members of the Assembly daring to give his Opinion on such Edicts; of which sometimes only the Titles are read, and to which no one pretends to make Objections, for Fear of incurring the Prince’s Displeasure, who requires a blind Obedience.
[2. ]Plut.Apophtheg. Reg. & Imperat. Tom. II. p. 183. Edit. Wech.
[3. ]Cod.Lib. III. Tit. XIV. Quando Imperator, &c. Leg. unic. [where such as were weak and infirm were also excused Attendance]. See likewise Lib. X. Tit. XI. De Petitionibus Bonorum sublat. Leg. I. Grotius.
[4. ]This express Revocation is necessary, according to the Practice of the Bar received in several Places. But the most able Lawyers are of Opinion that this Custom is founded only on a Misinterpretation of some of the Roman Laws. See Cujas, Observ. Lib. XIV. Cap. VII. & Anton. Faure, De Erroribus Pragmat. Decad. XXXVII. Error. VII, &c. However, if we may judge of it by the Law of Nature alone, I should think our Author in the Right; and that his Decision equally preserves the Force of the derogatory Clause inserted in the former Will, and the Liberty of the Testator to change his Mind. So that, unless it doth not appear that the former Will was not conformable to his real Intentions, or there is Room to believe he forgot the derogatory Clause, it ought to be expressly revoked; if that is not done, there is Reason to presume the Testator supposed that this very Clause would sufficiently evince the Invalidity of the posterior Will, which lets it remain.
[1 ]Hist. Lib. VI. Cap. IX, &c.
[2. ]See Note 38. of the following Paragraph.
[1 ]Politic. Lib. III. Cap. XV. where he speaks of such mixt Kingdoms, where the Kings have less Power than absolute Monarchs, but more than the Kings of Sparta, who were but little better than a Kind of Generals for Life; for beside this perpetual and absolute Command in War, which was not always Hereditary, they had no Power but in what related to Religion. See ibid. Cap. XIV. He speaks of three Sorts of Governments between those two. The first are such as are established among some of the Barbarians, where the Kings are hereditary and invested with a Power, almost as extensive as that of Tyrants, (or absolute Monarchs). Those Kingdoms are however, established by Law, and the free Consent of the People. The second is that of the Aesymnites, of which I have already spoken in Note 7. of § XI. The third is a Kingdom like those of the Heroic Times; where the Crown was bestowed by the Consent of the People, and made hereditary, in Return for the Obligations they had to those first Kings. Those Princes commanded the Armies, were entrusted with the Affairs of Religion, and all judiciary Matters, ibid. p. 357. From this Account it is not easy, at first Sight, to determine what Difference Aristotle makes between his Kingdom on the Plan of the Barbarians, ἡ Βαρβαρικὴ Βασιλεία, and his absolute Monarchy, ἡ Παμβασιλέια; for if, in the latter, the King has a Power of doing whatever he pleases: Cap. XVI. the former, according to our Philosopher, is despotic, and differs from Tyranny also, as that is a Power usurped, against the Will of the People. Giphanius, in his imperfect Commentary on Aristotle’sPolitics, printed at Frankfort in 1608, with a new Version, is of Opinion that his Author designedly treated this Subject obscurely, to avoid giving Offence to his Pupil Alexander. This Conjecture is plausible enough; though the Philosopher expresses himself obscurely in several other Places, where he had not the same Reason. I imagine that the Idea by him fixed to what he calls Παμβασιλεία, a full and absolute Monarchy, of which he gives us no Example, is the same that my Author entertains of a patrimonial Kingdom; this appears from a Passage before quoted, on § 8. where he compares the Authority of an absolute Prince to that of a Father, who may dispose of his Estate, as he pleases. He also observes, in the following Chapter, that such a King regulates the Succession to the Crown by his own Will. For, treating of the Inconveniencies attending such a Royalty, he says it is very dangerous for a Prince to leave the Crown to his Children, even though virtuous. But, says the Philosopher, will he not make his Children his Successors, when it is in his Power? This indeed is a difficult Conquest of himself, and such as requires a Degree of Virtue above the common Force of human Nature. Cap. XV. p. 659. On this Foot then the Kingdom formed on the Plan of the Barbarians, how despotic soever, must have been hereditary, only as far as the People allowed them to be so. But, whatever becomes of that Question, it appears from the Passages already quoted that the Kingdoms, mentioned by Aristotle, as being of a middle Sort between the Spartan Kingdoms and absolute Monarchy, did not admit of a real Division of the Sovereignty, like those Governments, which our Author distinguishes by the Appellation of Mix’d.
[2. ]Ἀυτοκρατὴς βασιλεία. Dionys. of Halicarn. Speaking of the Lacedemonians, says they were not αὐτοκράτορες, absolute, and independent, Lib. II. Cap. XIV. p. 85. Edit. Oxon. (87 Sylb.) Grotius.
[3. ]The People, to use the Words of Josephus, thought it not absurd or unreasonable to submit to the same Form of Government, as was established among the neighbouring Nations. Antiq. Lib. VI. Cap. IV. p. 174. Edit. Lips.Grotius.
[4. ]This is spoken of the Bees. Georg. Lib. IV. v. 2100, &c.
[5. ]Lib. XXXVI. Cap. XVII. Num. 5.
[6. ]Cicero speaks of the Jews and Syrians as People born to Slavery. De Prov. Consular. Cap. V. Euripides says that among the Barbarians, all are Slaves except one Man. Helena, 2. 283. In which he imitates a Thought of Eschylus, who declares no one is free but Jupiter alone. Prometh. vinct. which Lucan applies to Caesar. Lib. II. v. 280, 281. Servius &Philargyrius, on Virgil, Georg. IV. v. 210. quote a Passage from Sallust, where that Historian observes, that the Eastern Nations have naturally a profound Veneration for the Name of a King. The Emperor Julian speaks of the servile Temper of the Syrians, Persians, Parthians, and all the Barbarians of the East and the South, who were governed by despotic Princes, in Opposition to the Love which the ancient Germans had for Liberty. In S. Cyril. p. 138. Edit. Spanhem.Claudian tells the Emperor Honorius, that he commands a free People, and not such as the Arabians, Armenians and Syrians. De IV. Consulatu Honorii. v. 306. Grotius.
[7. ]He makes Apollonius of Tyana say, that Damis being an Assyrian, and a Neighbour to the Medes, who adored arbitrary Government, entertained no noble Sentiments of Liberty. Vit. Apollon. Lib. VII. Cap. XIV. Edit. Oxon.
[8. ]But see the following Chapter, § 3.
[9. ]St. Jerom, on this Place, observes, that as David was a King, he feared no Man. To which he elsewhere adds; he had no Superior. Epist ad Rusticum, de Paenitentiâ. Tom. I. p. 221. Edit. Erasm. Basil. St. Ambrose reasons in the same Manner on this Passage: For he was a King, and obliged by no Laws; for Kings cannot transgress (against Men) and being secure under their own Power, can be punished by no Laws: He did not therefore sin against Man, to whom he was not subject; but tho’ his Post secured him, he was subject to GOD by the Ties of Faith and Religion. Apol. David. Cap. X. See also Arnobius the younger on the same Psalm, and Isidore of Pelusium, Lib. V. Epist. 383, in the late Edition of his Works. Vitiges, King of the Goths, said, The Actions of Kings are to be judged at the Tribunal of GOD; for as their Power is derived from Heaven, so they are obliged to justify themselves to Heaven alone.Cassiodore. See § 8. Note 56. Grotius.
[10. ]This is a mere Fable, as has been most evidently proved by several Authors. See Selden.De Synedriis. Lib. III. Cap. IX. Salmasius. in his Defensio Regia. Cap. II. and Cap. V. Mr. Le Clerc’sDefense des Sentimens sur l’ Histoire Critique du P. Simon. Lett. VI. p. 145, &c.
[11. ]The Continuation of this grand Council, which had been disputed by several able Writers, is entirely destroyed by Mr. Le Clerc, in his Sentimens sur l’ Histoire Critique du P. Simon. Lett. X. and in a Dissertation on that Subject, published at the End of his Commentary on the historical Books of the Old Testament, so that all our Author says here falls to the Ground. See an occasional Proof, in Note 14. on this Paragraph.
[12. ]This is a figurative Expression, from which we can conclude no more than that the Judges were invested with some Authority.
[13. ]Those Magistrates were obliged to judge according to the Law of GOD, delivered by Moses. And this is the whole Foundation of such Expressions, which by no Means imply that they had an Authority independent of the King.
[14. ]In Religious Affairs and private Causes, as well civil as criminal, which could be decided by the Law of Moses, the Kings were not allowed to make any Alteration by their own Authority, but were obliged to judge according to that Law, which was the fundamental Law of the State; so that all Affairs, which depended on it, might in that Sense, be called Causes relating to GOD. But in all other Cases, their Power was unlimited; and here the Term of Royal Causes took place. They appointed proper Persons to take Cognizance of both those Sorts of Causes; as is evident even from the Place in the Book of Chronicles, quoted in the Margin; which likewise serves to refute the Fable of the Perpetuity of the grand Council among the Jews; for we there find Judges appointed by Josaphat, in all the Cities of Judah, without excepting Jerusalem. From all which let us conclude, that there was no Division of Sovereignty in the Monarchy of the Hebrews, but only a Limitation of the legislative Power, and of the Power in Matters of Religion; notwithstanding which, their Kings were in other Respects as absolute, as any other Eastern Power. So that our Author’s Application of this Example is not just. We shall see in Note 17. what gave Occasion to the Mistake into which he has fallen after several other Writers.
[15. ]And this was carried so far, that he ordered the Execution of the Criminals, without any Formality of Justice. David exercised the same Severity on the Man, who boasted of having killed Saul. 2 Sam. i. 15. and on the Assassins of Isbosheth, ibid. iv. 15.
[16. ]See Selden, de Synedriis. Lib. II. Cap. XIV. § 1.
[17. ]But do we not read that Solomon deposed Abiathar, the High Priest. 1 Kings ii. 27. Our Author, and those whom he has followed, confound the Government of the Hebrews before the Babylonish Captivity, with the State of the Commonwealth of Israel under the Asmonean Princes, who, though they wore the Crown, and had assumed the Title of King, were obliged, for confirming their Authority, to share it with the Sanhedrim, which had been established since the Jews, having shook off the Syrian Yoke, began to be governed by the High Priests, in Conjunction with the Heads of their own People; according to the judicious Conjecture of Mr. Le Clerc in his Dissertation, § 7. In Regard to Crimes committed by a whole Tribe, or by the High Priest, or by a false Prophet. See Selden, de Synedriis. Lib. III. Cap. IV. &c.
[18. ]The Question there is not concerning the Rights of the Royal Power, as has been observed by Commentators. Zedekiah only declares that, in that Conjuncture, he is obliged to yield to the importunate Demands of the Heads of the People, who looked on Jeremiah as a Traitor, and one, who held a Correspondence with their Enemies the Chaldeans.
[19. ]De Expedit. Alexandri. Lib. IV. Cap. XI. The Author speaks rather of the Manner, how Alexander’s Predecessors had acquired the Throne, viz. without Usurpation or Violence, than of the Manner how they exercised the Royal Authority.
[20. ]This Passage is followed by the ensuing Words: They opposed him (Alexander) in his Pursuit of Immortality with more Vigour than was expedient either for themselves or the King. Lib. IV. Cap. VII. Num. 31.
[21. ]Lib. VI. Cap. VIII. Num. 25.
[22. ]Lib. VIII. Cap. I. Num. 18. Pufendorf, in a Dissertation De rebus gestis Philippi, which appears among his Academical Dissertations, § 16. pretends that from those Passages it follows only that the Power of the Kings of Macedon was limited. But, on a careful Examination of those Authorities, and others which he quotes, it will, in my Opinion, appear that they suppose some what more than abare Limitation; at least if we consider the Origin of those Customs, and the Manner how they had been long practised.
[23. ]German. Cap. XLIII. Num. 7.
[24. ]Ibid. Cap. XI. Num. 6.
[25. ]Ibid. Cap. XLIV. Num. 3.
[26. ]On Odyss. Lib. VI.
[27. ]Laonicus Chalcochondylas says, there was such a Mixture among the Pannonians, and English, Lib. II. in the Kingdoms of Arragon, and Navarre, Lib. V. The Magistrates were not created by the King of Navarre; he placedno Garrisons, without the Consent of the People; and had no Power to command any Thing contrary to the established Customs; as we learn from the same Writer in the Place last quoted. Rabbi Levi, the Son of Gerson remarks, on 1 Sam. viii. 4. that some Kings are absolute, and others subject to the Laws. What Pliny says, in his Account of the Island of Taprobane, is curious: That the People chose a King distinguished by Age and Clemency, and one who had no Children. If he had any Issue after his Accession, he was deposed, to prevent the Kingdom’s becoming Hereditary. That thirty Ministers or Counsellors were assigned him by the People; and no Man received Sentence of Death, but by a Plurality of Voices. But an Appeal was allowed from that Council to the People; who named seventy Judges. If no more than thirty of them voted the Person not guilty, they lost their Dignity, which was a great Blemish to their Character. That, their King was dressed like Bacchus; and the others like Arabians. That, when the King committed a Fault, he was punished with Death, though not actually killed, but denied all Commerce, and even Discourse with his Subjects. Hist. Nat. Lib. VI. Cap. XXII. Servius, on Eneid. v. 682. says, after Cato, that the Government of Carthage was a Mixture of Democracy, Aristocracy, and Monarchy. Grotius.
[28. ]Annal. Lib. III. Cap. XXXVI. Num. 5.
[29. ]Digest.Lib. I. Tit. II. De origine Juris, &c. Leg. II. § 14. But Mr. De Bynkershoek thinks this is spoken of the Power of the Magistrates, whose several Functions were exercised by the Kings. He owns, however, that Pomponius had before mentioned that Will of the Kings, which at that Time supplied the Place of all Laws, when he says, Omniaque manu à Regibus gubernabantur. § 1. See the Praetermissa, ad. L. 2. D. De origine Juris, p. 16, 17. of the Opuscula, published in 1719.
[30. ]I have already given the Passage in Note 4, on Paragraph 6. Pufendorf, in a Dissertation De formâ Reipub. Romanae, §4, &c. maintains that the old Kings of Rome were invested with all the Parts of Sovereignty. But, on examining his Reasons, it will appear that they are not strong enough to destroy the Testimony of the Greek and Latin Authors, who give us a different Idea of the Power of those first Rulers.
[31. ]Epist. CVIII. p. 538. Edit. Elziv. maj. 1672. We have an Instance of the same Kind in Livy, in regard to Horatius, who had killed his Sister, Lib. I. Cap. XXVI. See the same Historian, Lib. VIII. Cap. XXXIII. Num. 8.
[32. ]Annal. Lib. III. Cap. XXVI. Num. 5.
[33. ]Lib. II. Cap. I. Num. 7. See Cicero, De Legib. Lib. III. Cap. III.
[34. ]Dionysius of Halicarnassus tells us, that In those early Times, on the Demise of the King, the People gave the Senate Power to establish what Form of Government they pleased; that the Senate named the Interreges, or Regents of the State; that those Magistrates made Choice of the best Man they could find, either among their own Countrymen, or among those of other Nations, to be their King; that, if the Senate approved of the Person thus chosen, the People gave their Consent, and the Auguries proved favourable, he entered on the Government. Antiq. Rom. Lib. IV. Cap. XL. p. 233. Edit. Oxon. (242. Sylb.) See the Passage of Livy, to be quoted in Note 38 on this Paragraph.
[35. ]That is, In the Election of Magistrates, making Laws, and entering into War; as we learn from Dionysius of Halicarnassus. Antiq. Rom. Lib. II. Cap. XIV. p. 85. Edit. Oxon. (87. Sylb.) See the two following Notes, and § 6. Note 4.
[36. ]The People had no Right to make a Law, or command any Thing, without the previous Approbation of the Senate. Vit. Coriolani, Tom. II. p. 227. Edit. Wech.Chalcochondylas observes, that there was a like Mixture in the Republick of Genoa in his Time, Hist. Lib. V. Grotius.
[37. ]Lib. VI. Cap. XXXVII. Note 4.
[38. ]Lib. I. Cap. XVII. Num. 9. Dionysius of Halicarnassus says, that in his Time the Resolutions of the People had the Force of a Law, without the Cognizance of the Senate; but that the Orders of the Senate were subject to the People’s Determination, Antiq. Rom. Lib. II. Cap. XIV. Our Author means to speak of those Times, when § 19. he maintains, against Polybius, that the Government of Rome was Democratical: So that some of his Commentators have unjustly accused him of contradicting himself in this Point. We may see in Gronovius’s Observations on B. I. Chap. XXV. how the People by degrees incroached on the Right of the Senate, and at last swallowed it up. It will not be improper to read a Dissertation of Pufendorf, already quoted, De formâ Reip. Rom. tho’ he does all in his Power for saving the Authority of the Senate. See also Paul Merula, De Leg. Romanor. Cap. II. § 12. and Cap. III. § I. And Rabod Herman Schelius, De Jure Imperii, p. 41, &c.
[39. ]In his Panathenaic Oration, where he says that Lycurgus copied that Form of Government, as much as was possible.
[1 ]See Pufendorf on this Subject, B. VIII. Chap. IX. § 3, 4. compared with our Author, B. II. Chap. XV. § 7. &c.
[2. ]Plutarch, from whom the Author has certainly taken this Fact, says that Artaxerxes granted, among other Things, That the Thebans should be considered as the King’s hereditary Friends. In Vit. Pelopid. p. 294. Edit. Wech.
[3. ]Livy, who gives an Account of this Treaty, adds, that this was to be done, sine dolo malo, without Fraud, Lib. XXXVIII. Cap. XI. Num. 2.
[4. ]De morib. German. Cap. XXIX. Num. 3, 4. Neither this Passage, nor that in the following Note, speaks of any Alliance, but only of the Impression made by the Roman Grandeur on other Nations.
[5. ]Lib. IV. Cap. XII. Num. 61.
[6. ]Paraphr. Lib. VIII. Cap. XVIII. p. 567. Ed. Hein. 1617.
[7. ]Protection is. This Term is used when one Prince or State takes another less powerful Prince or State under Protection, and engages in its Defence, either without any Consideration, or on Condition of receiving a certain Tribute. We have several Examples of this Kind in the German Empire, and elsewhere. See the late Mr. Hertius’s Dissertation De specialibus Romano-Germ. Imperii Rebus pub. &c. § 34. in the second Volume of his Comment. & Opusc. and his Paraemiae Juris Germanici, Lib. II. Cap. V.
[8. ]Advocatia. Advocati were those who engaged to defend a Church or a Monastery. See the Origin of this in the Bibliotheque Universelle, Tom. I. p. 97, &c. The learned Gronovius on this Place, quotes several Authors who treat on this Subject. We have likewise a great Number of curious and instructive Observations on the same, in a Dissertation written by the late Mr. Hertius, De consultationib. legib. & judiciis in specialib. Rom. Germ. Imperii Rebus pub. § 17. Tom. II. of his Commentationes & Opusc. &c. It will be sufficient to produce one considerable Example of this Kind of Patronage, which comes to our Author’s Purpose; which is that of the Emperor of Germany, who stiles himself Supreme Patron of the Roman Church, tho’ he is not supreme Head of that Church, and has long had no Right over the Temporalities of the Pope. See likewise the Jus Ecclesiastic. Protestantium, by Mr. Bohmer, Professor of Law at Hall, Lib. III. Cap. V. § 36, 37. where he gives a compendious History of the Right of Patronage, and points out such Authors as treat of it most satisfactorily.
[9. ]Mundiburgium. Thus the Word was written in the Editions published in our Author’s Life Time, and immediately after his Death. In those which appeared since, we have Mundiburnium, from which the French have made Mambournie. But, however it is written, the Term, according to some, is derived from the old Teutonic Munto, to defend or protect, and Burde, charge or burthen. Others assign it a different Derivation; but all agree in its Signification, and call it a Sort of Right of Protection. See Cujas, on B. II. De Feudis, Tit. IV. Franc. Guilliman.De Rebus Helvet. Lib. I. Cap. IX. Num. 14. Edit. Lips. 1710. Jerom Bignon on Marculphus, Lib. I. Cap. XXIV. p. 504, 506. Mr. Du Cange’sGlossary, and Mr. Hertius’s Dissertation, before quoted. It is pretended, that this Word was used particularly, when speaking of a Prince’s Right of protecting a Bishop or an Abbot.
[10. ]See the learned Henry de Valois’s Notes on the Excerpta Constantini Porphyrog. in the Collection made by Mr. De Peiresc, p. 6, 7. And our Author, B. II. Chap. IX. § 10.
[11. ]The Person introduced by the Historian, makes this Exception; So long as the Colony is well treated. Εν̂̔ μεν πασχουσα Lib. I. §. 34. Ed. Oxon.
[12. ]Lib. I. Cap. LII. Num. 4.
[13. ]DigestLib. XLIV. Tit. XV. De Captivis & Postlimin. &c. Leg. VII. § I.
[14. ]Jure omni. This is the common but corrupt Reading, which our Author here follows. I should rather choose to read with Haloander, neque viribus, tho’ not equal to us in Strength.
[15. ]See Cardinal Tuschus, Practic. Conclus. 935. We have an Instance of this in the Dilimnites, (or Dolomites, a People of Persia) who tho’ free, and governed by their own Laws, furnished the Persians with Troops; as we learn from Agathias, Lib. III. Cap. VIII. [See likewise Procopius, De Bell. Goth. Lib. IV. Cap. XIV. and Baron Spanheim’sOrbis Rom. Exercit. II. Cap. XVII. p. 452.] Thus the Empress Irene designed to divide the Empire among her Husband’s Children, in such a Manner as to make those who should be born afterwards, inferior to them in Dignity; but each of them Master of himself, and independent. See Krantzius’sSaxonic. Lib. X.concerning the Cities which put themselves under the Protection of the House of Austria.Herodian, speaking of the Osroeni and Armenians, observes that the former were Subjects (to the Romans) the latter their Friends and Allies, Hist. Lib. VII. (Cap. V. Edit. Oxon. 1678.) Grotius.
[16. ]It appears from the Passage here quoted, that the Nations there mentioned had been given to Eumenes, (King of Pergamus) and to the Rhodians, then in Alliance with the Romans. Bell. Mithrid. p. 356. Edit. Amster. (212, H. Steph.) So that those People were not independent, and such as we are to suppose our Author is speaking of.
[17. ]The Historian speaks there of the Olcadians, a People of Spain, in regard to the Carthaginians, Lib. XXI. Cap. V. Num. 3.
[18. ]The Passage at length stands thus: Our Magistrates and Generals endeavoured to acquire a glorious Character, by defending the Provinces, and their Allies, with Equity and Honour. So that the Romans might more properly be termed Protectors, than Governors of the World. De Offic. Lib. II. Cap. VIII. See also Lib. I. Cap. XI.
[19. ]Livy, Lib. XXVI. Cap. XLIX. Num. 8.
[20. ]Geograph. Lib. VIII. p. 562. Edit. Amst. (865, Paris.)
[21. ]In fide & in ditione. Thus, speaking of the Sidicinians, who were neither under the Protection (in fide) of the Roman People, nor subject to their Jurisdiction,(necditione) Lib. VIII. Cap. I. Num. 10. And elsewhere, in fidem se tradere, is opposed to in servitutem; as when Pheneas, who appeared at the Head of the Embassy sent from the Etolians, said to a Roman Consul, Non in servitutem, sed in Fidem tuam nos tradimus; we do not offer ourselves as your Slaves, but put ourselves under your Protection, Lib. XXXVI. Cap. XXVIII. Num. 4. But the Consul soon let the World know, that in those Days the Romans, by in fidem tradere understood surrendering at Discretion, and submitting to their Jurisdiction. See Spanheim’sOrbis Rom. Exercit. II. Cap. X. p. 299. That Expression became ambiguous, as the Romans began to act like Masters with their Allies. See our Author’s Observation, B. III. Chap. XX. § 50. in which there is no Contradiction, as Boecler would insinuate, who shewed me the Passages here quoted. He himself observes, that the Latin Writers, when they would speak justly, make an Addition of some Word, for avoiding the Ambiguity; as in the following Passages, Quorum in Fide, & Clientelâ Regnum (Numidia) erat.Florus, Lib. III. Cap. I. Num. 3. Manus ad Caesarem tendere & voce significare coeperunt (Bellovaci) sese in ejus Fidem & Potestatem venire.CaesarDe Bello Gall. Lib. III. Cap. XIII. Bellovacos omni tempore in Fide atque Amicitiâ Civitatis Aeduae fuisse. Idem. Ibid. Cap. XIV. But the first of these Expressions, according to Spanheim, in his Orbis Rom. as above quoted, p. 307. signifies as much as the second.
[22. ]Here are several Mistakes in this Sentence, which the learned Gronovius has observed. First, Syllaeus was not King of the Arabians, but only Minister or General to Obodas, King of Part of Arabia. Secondly, This Menace regards Herod, whom Syllaeus had accused to Augustus, concerning his Expedition into Arabia; whereupon Augustus wrote to the King of the Jews, that he had till then treated him like a Friend, but for the future would use him as a Subject.Josephus, Antiq. Jud. Lib. XVI. Cap. XV. p. 572. Thirdly, Our Author doth not give us a just Idea of the Condition of the Kings of Arabia; for those Kings, as well as all the others from the West to Euphrates, at that Time depended on the Romans so much, that they received the Crown from them; and even a Son could not succeed his Father without their Consent. Josephus, in the very Place I have quoted, and in the following Chapter, tells us how much Augustus was provoked at Aretas, for entering on his Reign, after the Demise of Obodas, without waiting for his Approbation; and what Submission that Prince was obliged to make for appeasing the Emperor. It is well known likewise, that Archelau¨s, Son to the Herod already mentioned, went to Rome immediately after his Father’s Death, to solicit the Confirmation of the Kingdom of Judea, which he gained only under the Title of Ethnarch; and some Years after, on the Complaints of the Jews, the Emperor banished him to Vienna. See the late Mr. Perizonius’s Dissertation, De Angusteâ Orbis terrarum Descriptione, §3,5,6.
[23. ]Tacitus, who relates this Fact, makes Paetus say, The Armenians had always been subject to the Roman Power, or to a King chosen by the Emperor. Annal. Lib. XV. Cap. XIII. Num. 4. Florus tells us, that after the Defeat of Tigranes, Pompey required no other Subjection of the Armenians, than that of receiving their Governors from the Romans, Lib. IV. Cap. XII. Num. 43. See Spanheim’sOrbis Romanus, p. 452.
[24. ]Biblioth. Hist. Lib. XVI. Cap. XLVI. p. 534. Edit. H. Steph.
[25. ]Digest.Lib. XLIX. Tit. XV. De Captiv. & Postlimin. &c. Leg. VII. § 2. See what Pufendorf says to this, B. VIII. Chap. IX. § 4. in the first Note, where I have joined what he had written in two different Places. The Difficulty will vanish on reading Spanheim’sOrbis Rom. Exercit. II. Cap. X. The Alliance and Liberty of the Kings and People in Question, were widely different from what our Author conceives them to have been. The Inequality of those Alliances, implied not a bare Inferiority of Respect, but a real Dependence and Subjection; as is evident from several Places in Livy, who makes a clear Distinction between Foedus aequum, and Foedus iniquum. When the People of Campania applied to the Romans for their Assistance against the Samnites, and at the same Time a perpetual Alliance, they said, had they made this Application at a Time when Fortune was favourable to them, as the Alliance would have been of a more early Date, so it would have been bound by a weaker Tye: For then, as they should have remember’d they contracted it on equal Terms, (ex aequo) they perhaps had been as truly Friends, but less subject and devoted (minus subjecti atque obnoxii) to the Romans. Lib. VII. Cap. XXX. Num. 2. The Rest of their Speech speaks this Dependence, tho’ they had not yet declared their Disposition to put themselves at Discretion under the Roman Power; which they had Orders to do, only on a Refusal of forming an Alliance with them on the Terms proposed. The same Historian informs us, that the Apulians gained an Alliance (Foedus) not on equal Terms, (neque aequo foedere) but on Condition that they should be subject to the Roman People, (in ditione Populi Romani). Lib. IX. Cap. XX. Num. 8. It was only in the Time of the first Consuls, and before the Sicilian War, that the Romans made Alliances, not prejudicial to the Sovereignty of their Allies; but from that Time they were only nominally such. The People, whom they termed Free, Allies and Friends, were so called, because the Roman People, with the Property of their Lands, gave them a Permission to be governed by their own Laws, and the proper Magistrates of their respective Countries. But then they were to acknowledge that all this was a Concession from the Roman People; and that People made this Dependence appear by diminishing or taking away that Liberty as they pleased. In Note 22 on this Paragraph we have given an Example of their Manner of treating Kings; and the Lawyer Scevola makes it Treason maliciously to hinder the King of a foreign Nation from obeying the Roman People.Digest.Lib. XLVIII. Tit. IV. Ad Leg. Jul. Majestatis, Leg. IV. A plain Proof that the Romans considered the allied Kings, and much more the Cities and Nations called Free and Allied, as dependent on them. Those People could neither undertake a War, or enter into an Alliance, without Permission from the Romans: They were obliged to find Quarters and Provisions for their Generals and Armies, and from Time to Time receive such Governors as were sent to regulate Affairs: They paid Tributes and Imposts, unless they had obtained a particular Exemption, and even that Exemption did not secure them from paying in certain extraordinary Cases. Add to all this, that those Nations, as well as the allied Kings, were obliged to furnish the Romans with Troops on every Demand; and this was the Reason why all the World was to be enrolled,Luke ii. 1. On which see Mr. Perizonius’s Dissertation, already quoted. We are not to be surprized therefore, that the Romans, when they thought proper, took Cognizance of Charges brought against the Members of allied Cities or Nations, and exercised the Power of Life and Death on them. It must be owned however, that the Lawyer, whose Words gave Occasion to the Objection discussed by our Author, lays down a bad Definition of the Liberty of the People in Question, as being really independent, (qui nullus alterius potestati subjectus est) and, consequently, all our Author’s Distinctions are superfluous, in the Application he makes of them; so that it is sufficient to examine them in themselves.
[26. ]B. II. Chap. XXI. § 4.
[27. ]Reciperatores. See Torrentius’s Commentary on Suetonius, in Nerone, Cap. XVII. and that of Theod. Marcilly, on the Life of Vespasian, Cap. X.
[28. ]B. II. Chap. XX.§3.
[29. ]This Sort of Assembly is called Κοινοδικίον, in an antient Inscription, where we find the Articles of a Treaty between the Priansii and the Hieropotamii, by which those People reciprocally bestowed the Right of Citizens one on the other. Grotius.
[30. ]Antiq. Jud. Lib. XVI. Cap. VIII.
[31. ]Valerius Maximus, Lib. IV. Cap. I. Num. 6. See another Instance in Polybius, Excerpt. Legat. CV. Grotius.
[32. ]Politic. Lib. III. Cap. IX. p. 348. Edit. Paris.
[33. ]Lib. I. Cap. CXX. Edit. Oxon.
[34. ]In Panegyr. p. 62. Edit. H. Steph.
[35. ]Ibid. p. 56, 62.
[36. ]Lib. I. Cap. 96. Edit. Oxon.
[37. ]As the younger Pliny says to one of his Friends, Remember you are sent into the Province of Achaia,— that you are sent to regulate the State of free Cities. Lib. VIII. Ep. XXIV. Num. 2. Edit. Cellar. See Spanheim’sOrbis Rom. p. 311, 381, 394, 395.
[38. ]Lib. XXXVII. Cap. LIV. Num. 24.
[39. ]Lib. XV. p. 471. Edit. H. Steph.
[40. ]I do not know in what Piece of the Gretian Orator these Words occur.
[41. ]Sub imperio Suevorum. These People are here mis-named. Caesar calls them Nervii. De Bello Gall. Lib. V. Cap. XXXIX. The learned Gronovius observes also, that the Word Imperium is not to be taken in an improper Sense, because the Nations here mentioned, were really subject to the Nervii, but that of Allies, (Socii) which the Romans sometimes gave to the People of their own Provinces.
[42. ]Lib. XLII. Cap. I. Num. 9.
[43. ]I find Thucydides making this Observation on the Athenians, who seeking one specious Pretext to Day, and another to Morrow, and having gained the Ionians with their Allies, induced those People to intrust them with the Command of a War on the Medes. Lib. VI. Cap. LXXVI. Edit. Oxon.
[44. ]The learned Gronovius suspects that the Author’s Memory failed him on this Occasion, and that he attributes to the Athenians what Pausanias says of the Romans, viz. that after the War with Perseus, they obliged several of the Achaians to appear at Rome, and answer to the Charges exhibited against them, of having favoured that vanquished Prince. Whereupon the Historian observes, that this Way of proceeding seemed strange to the Grecians; since nothing of that Nature had been attempted by the Macedonians; who when at the Height of their Power and Grandeur, referr’d such Cases to the Amphictyons, or States General of Greece. Achaic or Lib. VII. Cap. X. p. 216. Ed. Wech. I am persuaded our Author has really committed a Mistake, and that his Commentator has discovered what gave Occasion to it. It might be observed, that our Author probably imagined he had read what he relates, in Isocrates, whom he afterwards quotes. But the Greek Orator is so far from saying any Thing like it, that he maintains, on the contrary, that in regard to the Practice in Question, and several other Things of which the Athenians were accused, he could make it appear, that the Lacedemonians had acted much worse, and more oppressively than they. To which he adds, that the Lacedemonians had put more Grecians to Death, without the Formality of a Trial, than had been impeached and tried by the Athenians since they inhabited that City. Orat. Panath. p. 245, 246. Edit. H. Steph.
[45. ]Our Author probably had his Eye on a Passage in his Oration on Peace, where he reproaches his Countrymen, the Athenians, with pretending to be of Opinion, that Tyranny, or Monarchical Government, was oppressive, and pernicious, not only to the Subject but even to the Prince himself; and at the same Time acting as if they looked on the Empire of the Sea as productive of the greatest Advantages, tho’ in Reality, it differs not in the least from a Monarchy.
[46. ]The Author in his Margin quotes Dionysius of Halicarnassus, Lib. VI. but almost the same Words he uses may be found in Livy, Lib. VIII. Cap. IV. Num. 2. where the Historian makes a Praetor of the Latins say, For if we can now bear Slavery, under the Shadow of an equal Alliance, &c.
[47. ]Thus Plutarch says of Aratus, the Athenian General, that he was accused of imposing Masters on the Cities (of Achaia), giving them the soft Appellation of Allies. Vit. Arat. (Tom. I. p. 1045. Edit. Wech.) Dillius Vocula, Lieutenant-General of the Roman Forces, speaking of some People of the Belgick Gaul, says they had till that Time been under an easy Slavery, molle Servitium.Tacit.Hist. Lib. IV. (Cap. LVII. Num. 4.) Festus Rufus, (or as he is called by others, Sextus Rufus) speaking of the Rhodians, (and the Inhabitants of other Islands) observes that, at first they enjoyed Liberty; but in Process of Time accustomed themselves to obey the Romans, who engaged them to it by kind Usage. Cap. X. Edit. Cellar.Julius Caesar, having spoken of some People as Friends and Clients of the Aedui, tells us, they had formerly been under the Jurisdiction (of those of Auvergne, Bell. Gall. Lib. VII. Cap. LXXV.) To which may be added, Frederic Mindanus, De processibus, Lib. II. Cap. XIV. Num. 3. Ziegler, (ad auream PraximCalvoli) §. Landassii, Conclus. I. Num. 86. Gailius, Lib. II. Observ. LIV. Num. 6. See also Agathias, Lib. I. where the Goths are informed what they may expect of the Francs in Time. Grotius.
[48. ]He (Alexander Prince of the Etolians) accused the Romans of Fraud, who under the pompous but empty Name of Liberty, kept Garrisons in Chalcis and Demetrias. Livy, Lib. XXXIV. Cap. XXIII. Num. 8. They were now loaded with more splendid and heavier Chains, &c. Lib. XXXV. Cap. 38. Num. 10.
[49. ]Idem. Lib. XXXIX. Cap. XXXVII. Num. 13.
[50. ]Histor. Lib. IV. Cap. XIV. Num. 5.
[51. ]Ibid. Cap. XVII. Num. 3.
[52. ]Lib. XXXVII. Cap. 53. Num. 4.
[53. ]Livy, Lib. XXXV. Cap. XXXI. Num. 12.
[54. ]Hist. Lib. IV. Cap. LXXVI.
[55. ]Such were the Lazi, a People of Colchis, in the Reign of the Emperor Justinian.Procop.Persic. Lib. II. (Cap. XV.) Grotius.
[56. ]See B. II. Chap. IV. § 14.
[1 ]The Emperor Justinian paid the Persians a certain Sum yearly. See Procop.Persic. Lib. II. (Cap. X.) and Gothick. Lib. IV. (or Hist. Miscellan. Cap. XV.) This was in soft Terms called A Tribute for securing the Caspian Gates. The Turks give the Arabians of the Mountains Money, to secure them from their Incursions.
[2. ]Lib. I. Cap. XIX. Edit. Oxon.
[3. ]De Bello Civil. Lib. V. p. 1135. Edit. Amsterd. 715. H. Steph. Josephus tells us that Marcus Antonius, speaking of Herod, declares it was not reasonable that Prince should be called to Account for what he had done, as King; for then he would not be a King: and that it was just that those, who invested him with that Dignity and Power, should allow him to enjoy them. Antiq. Jud. Lib. XV. Cap. IV. p. 516. The Jews, says St. Chrysostom, on their Declension, and Subjection to the Romans, were neither entirely free, as before, nor absolutely Slaves, as now. They were ranked among the Allies of that People; paid Tribute to their own Kings, and received Governors of their Nomination. They likewise followed their own Laws, and punished their Delinquents according to the Custom of their own Country. De Eleemosyna II. Grotius.
[4. ]The Kings of those neighbouring Nations were not more independent than those of the Jews. See Note 22 on the foregoing Paragraph. But the learned Gronovius quotes an Author who has produced more exact Instances of Princes, who, without ceasing to be Sovereigns, paid Tribute to foreign Nations, to prevent Incursions into their Countries. See Amm. Marcell.Lib. XXV. Cap. VI. p. 468. Edit. Vales. Gron. with Frid. Lindenbrogius’s Note on the Place.
[1 ]See my 4th Note on Pufendorf, B. IV. Ch. 8. § 12.
[2. ]As when the Kings of England paid Homage to those of France, for the Provinces they possessed in that Kingdom. See Bodin, De Repub. Lib. I. Cap. IX. p. 171, 172. Edit. Francof. 1622.
[3. ]Nullo jure in rem. Without any Right to the Thing itself. What our Author says here, agrees neither with the Idea which the Feudists give of Franc Fiefs, nor with the Nature of Fiefs in general. By the Term Franc Fief is meant, that which is exempt from all Charges and Services, which require considerable Labour or Expence; so that the Obligation of the Vassal is reduced to Fidelity and Loyalty, which consist only in honouring the Lord, under whom he holds, securing him from Damage, and doing him all the Good in the Vassal’s Power, as it is specified in the Form of the Oath of Fidelity. Feudor, Lib. II. Tit. VI. De formâ Fidelitatis, and Tit. VII. De novâ formâ Fidelitatis. But this Exemption from Charges and Services doth not deprive the Lord of a Franc Fief of a Right to the Thing itself, which the Vassal holds in Fief, or hinder it from returning to him, when the Vassal is guilty of Felony, or leaves no Heirs. The Exclusion of such a Right destroys the very Nature of a Fief, properly so called. Tho’ the Vassal of a Franc Fief had a Power to alienate the Thing without the Consent of the Lord, which the Doctors do not allow, still the Right of the latter would be perpetual over those, in whose Favour the Fief should be alienated. I am very much mistaken, if our Author has not here, and elsewhere, (as B. III. Chap. XX. § 44.) confounded what are called Franc Fiefs, with certain Engagements improperly termed Fiefs, on the Account of some Resemblance between them in the Respect and Homage paid. An ingenious Gentleman, who has published curious Extracts from Rymer’sFoedera, observes, as a certain Fact, that Homage was frequently paid for simple yearly Pensions, without expressing the Cause of such Homage. We have Examples of this Kind, says he, in the first Volume of this Collection, p. 1. and in some other Places, in Regard to the Counts of Flanders, who paid Homage to the Kings of England, for a Pension of 400 Marks. Bibliotheque Choisie, Tom. XX. p. 99, 100. By the Agreement made May the 17th, 1101, between Henry I. King of England, and Robert Count of Flanders, the King obliges himself to give him 400 Marks of Silver yearly in Fief, on Condition that Robert should be obliged to send 500 Horse into England, for the King’s Service, when he should have Occasion for them. Biblioth. Choisie, Tom. XVI. p. 10, &c. I find Bodin had long ago made a like Observation. Our Ancestors, said he, abused the Word Liege in all their ancient Treaties of Alliance and Oaths. I remember I have seen 48 Treaties of Alliance and Forms of Oaths, collated with the original Records, by which the three Electors on this Side of the Rhine, and several other Princes of the Empire, entered into Obligations with the Kings Philip de Valois, John, Charles the Fifth, Sixth, and Seventh, and Lewis the Eleventh, promising and swearing, in the Presence of the King’s Deputies, to serve him in his Wars against all Powers, except the Emperor and King of the Romans, acknowledging themselves Vassals and Liege-Men of the King of France: Some of them stiling themselves Counsellors, others Pensioners, and all Liege Vassals, except the Archbishop of Treves, Elector of the Empire, who only calls himself Confederate.And yet they held nothing from the Crown; for only the Pensioners of France took an Oath to serve the King, in the Things, and on the Conditions specified in the Instrument. The Oath of the Duke of Guelders and the Count of Juliers runs thus, Ego Devenio Vasallus ligîus Caroli, Regis Francorum, pro ratione quinquaginta millium scutorum auri, ante festum D. Remigii mihi solvendorum. That is, I become the Liege Vassal of Charles, King of the Francks, on the Consideration of fifty thousand Crowns of Gold, to be paid me before the Feast of St. Remigius. This Instrument is dated in the Month of June, 1401. This same Way of speaking was used even between Sovereign Princes; as in the Treaty of Alliance made between Philip de Valois, King of France, and Alphonso, King of Castille, in the Year 1336, on which Occasion Proxies appeared from both Parties, to require and give Assurance of mutual Homage and Fidelity. But this is an Abuse of the Words Vassal and Liege; for which Reason they are no longer admitted into the Oaths taken by the King’s Pensioners, nor into Treaties. De la Repub. B. I. Chap. IX. p. 175, 176. the French Edition, printed in 1608. I have set down this Passage at length, as it is of singular Use for explaining our Author’s Meaning, and discovering the Origin of his Mistake, which none of his Commentators have observed. Since I penned this Note, I have found something in another Work of our Author to confirm my Conjecture. It is in Chap. V. of his Treatise, De antiquitate Reip. Batav. where he maintains, that even tho’ the old Counts of Holland were Vassals of the Empire of Germany, the Hollanders would still be a free and independent People. To prove this Proposition he observes, that according to the Lawyer Proculus, Clients are not the less free, because not equalin Dignity to their Patrons; nora People, because obliged by a Clause in a Treaty of Alliance to reverence the Majesty of their Ally, provided they are not subject to his Dominion. Hence, says he, comes the Name of Franc Fief. But our Counts never owned themselves subject to this Sort of Obligation of Fief.
[4. ]Ligius Homo, or Lidges, a Term supposed to be derived from the German Ledig, empty, originally signified no more than a Vassal. See Vossius, De Vitiis Sermonis, Lib. III. Cap. XX. under the Word Liga; and the late Mr. Hertius’s Treatise De Feudis oblatis, Part II; § 6. in Vol. II. of his Comment. & Opusc. &c. But in Process of Time it has stood for a Liege-Man, or Liege-Vassal, one who entered into an Engagement to respect his Lord more than all other Men, and serve him against every other; so that such a Vassal cannot be Vassal to two Masters in the same Manner, and ought to acknowledge no other Sovereign.
[5. ]In Reality, such an Engagement no more prejudices the Sovereignty of the Vassal Prince, than when a Prince, by a Treaty of Alliance, promises another, to whom he is not feudatary, to assist him in all his Wars.
[6. ]See B. II. Ch. XV. § 13. and Ch. XXV. § 4.
[7. ]But those Kingdoms were more than Feudatary. See Notes 22 and 25, on § 21. Strabo calls the Kings meant by our Author, Subjects (Ὑπήκοοι) to the Romans, Lib. VI. p. 440. Edit. Amst. I shall set down the whole Passage, because it is corrupted in one Place, where I do not find any one has observed the Fault. The Geographer plainly distinguishes between the Kings of Asia, whose Families were extinct, and those who, revolting from the Romans, and being conquered by that People, had given them Occasion to reduce their Dominions into the Form of Roman Provinces. Among the former he reckons the Kings of Pergamus, those of Syria, Paphlagonia, Cappadocia, and, as it is in the original Text and the Latin Version, those of Egypt. The Examples of the latter are Mithridates, surnamed Eupator, and Cleopatra, Queen of Egypt. Τὰ δ’ ὅμοια καὶ περὶ τὴν Ἀσίαν συέβη. Καταρχὰς μὲν ὑπὸ τω̂ν Βασιλέων διωκει̑το ὑπηκόων ὄντων. ὕστερον δ’ ἐκλιπόντων ἐκείνων, καθάπερ τω̂ν Ἀτταλικω̂ν Βασιλέων, καὶ Σύρων, καὶ Παϕλαγόνων, καὶ Καππαδόκων, και Ἀιγυπτίων, καὶ (I add this Particle, which is absolutely necessary) ἀϕισταμένων, καὶ ἔπειτα καταλυομένων, καθάπερ ἐπὶ Μιθριδάτου συνέβη του̑ Ἐυπάτορος, καὶ τη̑ς Ἀιγυπτίας Κλεοπάτρας, ἅπαντα τὰ ἐντὸς Φασίδος καί Ἐυϕράτου, πλὴν Ἀράβων τινω̂ν, ὑπὸ Ῥωμάιοις ἐστὶ, &c. I am of Opinion, that instead of Ἀιγυπτίων Strabo wrote Βιθυνω̂ν. It is well known, at least, that the Romans inherited Bithynia by the Will of Nicomedes, the last King of that Country; as they in the same Manner acquired the Kingdom of Pergamus, whose Kings are here termed Ἀτταλικοὶ Βασιλει̑ς. See § 12. of this Chapter, where these two Facts are quoted on the Credit of good Authors.
[1 ]See B. III. Chap. XX. § 3. of this Work.