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• The Rights of War and Peace Book Ii
• Chapter I: Of the Causes of War; and First, of the Defence of Persons and Goods.
• Chapter II: Of Things Which Belong In Common to All Men.
• Chapter III: Of the Original Acquisition of Things; Where Also Is Treated of the Sea and Rivers.
• Chapter IV: Of a Thing Presumed to Be Quitted, and of the Right of Possession That Follows; and How Such a Possession Differs From Usucaption and Prescription.
• Chapter V: Of the Original Acquisition of a Right Over Persons; Where Also Is Treated of the Right of Parents: of Marriages: of Societies: of the Right Over Subjects: Over Slaves.
• Chapter VI: Of an Acquisition (possession Or Purchase) Derived From a Man’s Own Deed; Where Also of the Alienation of a Government, and of the Things and Revenues That Belong to That Government.
• Chapter VII: Of an Acquisition Derived to One By Vertue of Some Law; Where Also of Succeeding to the Effects and Estate of a Man Who Dies Without a Will.
• Chapter VIII: Of Such Properties As Are Commonly Called Acquisitions By the Right of Nations.
• Chapter IX: When Jurisdiction and Property Cease.
• Chapter X: Of the Obligation That Arises From Property.
• Chapter XI: Of Promises.
• Chapter XII: Of Contracts.
• Chapter XIII: Of an Oath.
• Chapter XIV: Of the Promises, Contracts, and Oaths of Those Who Have the Sovereign Power.
• Chapter XV: Of Publick Treaties, As Well Those That Are Made By the Sovereign Himself, As Those That Are Concluded Without His Order.
• Chapter XVI: Of Interpretation, Or the Way of Explaining the Sense of a Promise Or Convention.
• Chapter XVII: Of the Damage Done By an Injury, and of the Obligation Thence Arising.
• Chapter XVIII: Of the Rights of Embassies.
• Chapter XIX: Of the Right of Burial.
• Chapter XX: Of Punishments.
• Chapter XXI: Of the Communication of Punishments.
• Chapter XXII: Of the Unjust Causes of War.
• Chapter XXIII: Of the Dubious Causes of War.
• Chapter XXIV: Exhortations Not to Engage In a War Rashly, Tho’ For Just Reasons.
• Chapter XXV: Of the Causes For Which War Is to Be Undertaken On the Account of Others.
• Chapter XXVI: Of the Reasons That Justify Those Who Under Another’s Command Engage In War.

CHAPTER VI

Of an Acquisition (Possession or Purchase) derived from a Man’s own Deed; where also of the Alienation of a Government, and of the Things and Revenues that belong to that Government.

I.What is required in the Giver to make the Alienation valid.I. 1. A Thing becomes ours from a1 derivative Acquisition, either by the Deed of another, or by Vertue of some Law. Since the Establishment of Property,2 Men, who are3 Masters of their own Goods, have by the Law of Nature a Power of disposing of, or transferring, all or any Part of their Effects to other Persons; for this is in the very Nature of Property; I mean of full and compleat Property; and therefore4Aristotle says, Ὁρος τον̂ οἰκεɩ̂ον εἰ̂ναι, ὅταν ἐϕ’ αὐτῷ ᾑ̑ ἀπαλλοτριω̂σαι, It is the Definition of Property, to have in one’s Self the Power of Alienation.Soto, l. 4. qu. 5. art. 1. But there are two Things here to be observed; the one in the Giver, and the other in the Receiver. In the former it is required, that whatever he does in this Kind should appear by Words, or by some other open or external Sign, the mere internal Act of his own Will and Mind being no Ways sufficient; nor is such an Act,Ch. 4. of this Book, § 3. as we have observed elsewhere, agreeable to the Nature of human Society.

Less. l. 2. c. 3. Dub. 3.2. But that there should be a formal Delivery made, is what is5 required only by the Civil Law; which, because it is now received by many Nations, is improperly stiled the Law of Nations. So in some Places we find it customary for<215> such an Alienation to be made, either6 before the People, or before some Magistrate, and that the Particulars there of be also7 recorded; all which Circumstances are most certainly owing to the Civil Law. And as for the Act of a Will, that is thus expressed by some external Sign, it is always to be supposed the Act of8 a Will governed and directed by Reason.

II.What in the Receiver.II. So also in the Receiver (without any Regard to the Civil Law) it is naturally required, that his Willingness to accept of what is given him do appear by some outward Sign or other; which Willingness, tho’ it does generally succeed the Act of the other Party, may also be sometimes antecedent to it; as for Instance, if any Man shall request that such a Thing be given or granted him; for it is here to be supposed, that that Desire continues still, unless it appears that he has altered his Mind. What further relates as well to the transferring as the receiving of a Right,Ch. 11. of this Book. and how both these may be done, we shall hear by and by, in that Chapter where we treat of Promises; for in this Respect the Rules of Alienations, and those of Promises1 are the same, if we judge of them by the Law of Nature alone.

III.Crowns may be alienated sometimes by the King, sometimes by the People.III. Now as it is in other Things, so it is also in Sovereignty,1 it may be alienated by him who has a just Title to it; that is, as we shewed above, by a King, if the2 Crown be patrimonial; otherwise3 by the People, but not without the King’s Consent; because he too has some Right here, like to that of an Usufructuary, which Right he ought not to be deprived of contrary to his Will. And this regards the whole Extent of Sovereignty.

B. i. Ch. 3. § 12.IV. But in transferring a Part of the State there is some thing else required;1 it must be done with the Consent of that Part also, which is to be thus transferred. For when Men form themselves into a State, they make together a Sort of perpetual2 and eternal Society,IV.The Government over one Part of the People cannot be alienated by the other, if that Part do not give their Consent. in respect of those Parts, which are called3integral; from whence it follows, that these Parts are not so subjected to the Body, as the Limbs of a natural Body are, which entirely depend on the Life of that Body, and4 therefore may be justly cut off for the Service of it; for this Body that we<216>are now speaking of, is of a very different Nature from that, it being formed by Compact and Agreement only, and therefore the Right that it has over its particular Members, is to be determined by the Intentions of those who originally framed it; which cannever be reasonably imagined to be such, astoinvest the Body with a Power to cut off its own Members whenever it pleases, and to subject them to the Dominion of another.

V.Nor can such a Part transfer the Government over its own Self, unless in Case of extreme Necessity.V. So, on the other Hand, no Part has a Right to separate from its Body,1 unless it plainly appears, that it is absolutely necessary for its own Preservation; for, as we have before observed, in all Matters of human Institution, Cases of extreme Necessity, by which all Things return to a mere State of Nature, seem to be excepted. St. Austin, De Civit. Dei, B. xviii. In almost all Nations this Voice of Nature has been loudly heard,2that they should rather submit to their Conquerors, than suffer all the Ruin and Havock of War. And therefore in that Oath of the Greeks by which they engaged, with many Imprecations, to punish those amongst them,B. i. Ch. 4. § 7. and B. ii. Ch. 2. § 6. who should put themselves under the Dominion of the Persians, this Clause was subjoined, μὴ ἀναγκασθέντες,3Unless compelled to it.

VI.The Reason of this Difference.VI. And from hence it is easy to comprehend, why in this Case a Part has a greater Right to preserve itself,1 than the Body has Power over the Part; because<217> the Part makes Use of that Right it had before it entered into that Society; but it is quite otherwise with the Body. Nor let any Man pretend to tell me, that the Sovereign Power is lodged in the Body, as in its Subject, and may therefore be alienated by it, as a Thing that properly belongs to it.2 For if the Sovereignty resides in the Body, it is as in a Subject which it fills entirely, and without any Division into several Parts; in a Word, after the same Manner as the Soul is in perfect Bodies. Necessity itself, which reduces Things to the mere Right of Nature, cannot take Place here, because the Law of Nature gave indeed a Right to use Things; as for Instance, to eat or keep them, which are natural Acts,3 but not to alienate them. This Power was introduced by the Fact of Men, and therefore it is by that we must judge of its Extent.

VII.The Jurisdiction over a Place may be transferred.VII. But why the Jurisdiction over any particular Place; that is, any Part of a Territory, that lies, suppose, uninhabited and waste, may not be alienated by a free People, or by a King in Concurrence with his People, I see no Manner of Reason to dispute. Were indeed any Part of the People to be transferred, as they have a Freedom of Will, so have they likewise a Right to oppose such an Alienation; but the Territory, whether wholly, or in part, belongs in common and inseparably to the People; and consequently, is entirely at their Disposal. And certainly, if the Jurisdiction over any Part of the People cannot be alienated by the People themselves, much less can it be done by a King, who tho’ he be vested with the full Sovereignty, yet he does not possess it with a full Right of Property; a Distinction we made above.B. i. Ch. 3. § 11, 12.

VIII.The Opinion, that a Prince may for Advantage, or out of Necessity, make over some Parts of his Kingdom, refuted. Belluga in pr. spec. in rub. 8. p. 3. & 4. Roch. de Curte de Consuet. q. 5. col. 6. tom. 1. & alii allegati a Vasq. l. 1. c. 4.VIII. For which Reason we can never agree with those Lawyers, who to the general Rule of not alienating the Parts of a State, subjoin these two Exceptions of Necessity and the publick Good; unless we understand them in this Sense, that if the Alienation be advantageous to the Part as well as to the Body, we may from their Silence, tho’ of no long Time, conclude that both People, and the Part<218> alienated, agree to it, and much more so, if there appears besides any Necessity for such a Separation; but if either of them shall openly declare the contrary, we must look upon such an Alienation to be utterly null and void, unless, as we before observed, the Part should be compelled to separate from the Body.

IX. Under the Title of Alienation, is justly comprised an Infeoffment, or granting a Dominion in Fee, under the Penalty of Forfeiture, in Case of Felony, or for Want of Issue; for this is a Sort of conditional Alienation. Wherefore we find, that as Alienations, so likewise some1 Infeodations of Kingdoms, which Princes have made without the People’s Approbation, have by many of them been considered as void.IX.Infeoffment and Mortgaging are a Sort of Alienation. Smith, de Rep. Ang. l. 1. c. 9. Buch in Baliol. Frossar. l. 1. c. 214, & 246. Monstrel. Hist. C. 22, 5. Guic. l. 16. Now the People are understood to give their Approbation, either when they assemble in a whole Body for that Purpose, as was formerly the Custom with the Gauls and Germans, or when they signify their Consent by particular Deputies commissioned thereunto, and invested with a sufficient Power from the integral Parts of the State;2 for whatever we do by another, is equally the same as done by ourselves. Nor can any Part of the Dominion be mortgaged, except it be done by the like Agreement, not only for this Reason, because a real Alienation usually follows such an Engagement, but because a King is bound to the People, to exercise the sovereign Power by himself, and the People are bound to each of their Parts, to preserve the Administration of the Government entire, which indeed was the Motive of their first entering into a civil Society.X.The People’s Consent and Approbation, either particularly expressed, or founded on Custom, is required to the transferring even of Jurisdictions and Employments in the State that are not Sovereign.

X. But as for Jurisdictions that are1 not Sovereign, I see no Reason why the People may not grant them, even for an hereditary and perpetual Right, since it no Ways affects the whole Body, nor is any Ways destructive of the Sovereignty itself; but the King cannot do so without their Consent, if we regard natural Right only; because a temporal Right, such as is that of Kings elective, and of those who owe to the Law their Succession to the Crown, can produce nothing but2 temporal Effects. Yet might the People, as well by their express Consent, as by a tacit Consent, founded on Custom, (and this is what we see does now almost every where prevail) give up this Right to their Princes. And we frequently find<219> in History, that this was a Right which the Kings of the Medes and Persians enjoyed, who gave away not only3 Towns, but even whole Countries, to be held for ever.Cravet. Cons. 894. num. 2. Zoańnet. de Rom. Imp. n. 162.

XI. Nor can1 Kings alienate, either in Whole or in Part, the People’s2 Demain, the Revenue whereof is appropriated to the Service of the State, or to the Maintenance and Support of the Royal Dignity.3 For they have no more than a Tenant’s Right to it. Nor do I at all allow the Exception,XI.Princes cannot alienate the People’s Demain. Alberic. in C. Intellecto, de Jure Jur. Bartol. in Leg. 3. § 4. Dig. Quod vi, &c. Cors. in Tract de excell. Reg. q. 4. Loazes, all. a Vasq Nata cons. 367. Bonif. Rug. cons. 49. n. 43.If the Thing be but of little Value, because I can have no Right to make over the smallest Part of what is none of mine at all. But the People indeed, when they know the Affair, and are silent in it, may much more easily be supposed to consent in smaller Matters, than in those of greater Moment. And in this Sense too, what we just now observed, of alienating any of the Parts of a State, in Cases of Necessity, or for the publick Advantage, may be applied to what concerns this Revenue; and the rather, because the Thing we are speaking of here, is of far less Consideration. For the publick Demain is established on Account of the Sovereignty, and consequently, cannot have more Privilege.

XII. But here lies the Mistake of many, they confound the Revenue and Profits of the Demain, with the Demain itself. Thus, for Instance, the Right of Alluvion is usually in the Demain; but the Pieces of the Land which the River leaves dry in retiring are in the Revenue.XII.The Revenue of the Demain, or Patrimony, must be distinguished from the Demain, or Patrimony, itself. The Power of levying Taxes is in the Demain, the Money arising from thence in the Revenue: The Right of Confiscation in the Demain, the Lands thus confiscated in the Revenue.

XIII. But after all, Princes, who have a full and absolute Sovereignty, that is, who have a Power upon a lawful Occasion, and when Reasons of State require to levy new Subsidies, may, upon such an Occasion, mortgage any part of the publick Patrimony. For as Subjects are obliged to pay such Subsidies as are laid upon them, upon such Reasons of State, so are they no less obliged to redeem what is upon such Reasons mortgaged:XIII.How far, and why some Part of the People’s Patrimony may be mortgaged by the Prince. Because that very Redemption is no more than a Sort of Payment of Subsidies. And the Patrimony of the People is engaged to the Prince, as a security for the Payment of the Debts of the People. And whatsoever is thus pawned to me,1 I have also a Right to pawn again. What we have hitherto said of this Matter, will only hold good, provided there be no fundamental Law of the State, which shall either enlarge or confine the Power of Prince or People.

XIV.That a Will or Testament is a Kind of Alienation, and of natural Right. Arist. Pol. l. 11. c. 7.XIV. 1. And here you would do well to observe, that when we are treating of an Alienation, we design under that Head to include also a Will or Testament. For altho’ a Will, as all other Acts, may receive its Form from the Civil Law, yet is it in Substance and Reality very like the Right of Property, and, that being once<220> established, belongs to the Right of Nature; for I may give away my Estate by Will, not only absolutely, but on certain Conditions; and that not only irrevocably, and for ever, but with a Power too of recalling it, reserving to myself still the Possession of it, and the full Liberty of enjoying the same.1 For a Will is the making over one’s Effects in Case of Death, ’till then to be reversed or altered at Pleasure; and in the mean Time reserving the whole Right of Possession and Enjoyment. Plutarch very well saw this, and therefore when he had related, that Solon allowed his Citizens the Privilege of making Wills, he adds, Τὰ χρήματα, κτήματα τω̂ν ἐχόντων ἐποίησεν,2He thereby made what they had properly their own. And Quintilian, the Father, in a Declamation of his,3Our very Estates would seem burthensome, if we had not a full Liberty to dispose of them; and if, after having had a full Power to dispose of them during our Life, we should be deprived of it when we die. It was by Vertue of this natural Right, that Abraham, in Case he should die without Issue, was4 to have left all his Effects to Eliezer, as is plain from the Passage, Gen. xv. 2.

2. But that Foreigners have not in some Places a Power to dispose of their Effects by Will, is not from the Law of Nations, but from the Civil Law of such or such a State; and I am much mistaken, if it does not proceed from those Ages when Foreigners5 were looked upon as so many Enemies; and therefore, among the more civilized Part of Mankind,6 it hath been justly abolished and laid aside.

[1 ]See Chap. III. of this Book, § 1.

[2. ]On this Question consult Pufendorf, B. IV. Chap. IX.

[3. ]That is, who are of an Age sufficient for managing their own Affairs.

[4. ]Rhetoric, Lib. I. Cap. V. p. 523. Edit. Paris.

[5. ]The Right of Property is one Thing, and the actual Use of that Right another. The latter indeed doth not appear before the Delivery; but the Right itself is not therefore less real, and independent of the physical Power of exercising it. There is no more Necessity of being put into Possession of a Thing, in Order to be its real Proprietor, than of always keeping Possession of one’s Goods, in Order not to lose the Right of Property. The Law of Nature is extremely clear in this Point; and it is owing to a Prejudice, taken from the Roman Law, which some Doctors still maintain, that the Delivery is made necessary, even according to the Law of Nature, for transferring Property. The ablest Commentators, however, are now agreed, that this is a Refinement of the antient Lawyers; for whom on other Accounts they have a great Respect. See what the famous Mr. Schulting says, in his Notes on the Jurisprud. Ante-Justin. p. 473.

[6. ]As, for Example, according to the Saxon Law. See Hertius, Dissert. de Conventionib. dominii translativis. § 15. in Tom. III. of his Opusc. & Commentat. p. 77. and the Differentiae Juris Communis & Saxon. by Mr. Menkenius, at the End of the third Volume of Huber’s Praelectiones Juris Civilis, p. 8. Edit. Lips. 1707.

[7. ]Thus, according to the Roman Law, all Donations, above a certain Sum, were to be registered. See Instit. Lib. II. Tit. VII. De Donationibus, § 2. and the Commentators on that Place.

[8. ]It is a Maxim of Cassiodore, that The Alienation of Goods requires an entire Freedom of Judgment. Var. Lib. II. Epist. XI. Grotius.

These Words contain the Reason why King Theodoric annulled Alienations made by a Woman, who leading a debauched Life, had left her Husband. See Chap. XI. of this Book, § 5.

[1 ]For which Reason Presents may be sent to the absent by Messengers, as Servius observes, on those Words of Virgil, Quae mittit dona. Aeneid. IX. (v. 361). Grotius.

[1 ]See Pufendorf on this Subject, B. VIII. Chap. V. § 9, &c.

[2. ]See what I have said on B. I. Chap. III. § 11. Note 4. and § 12. Note 20.

[3. ]See Baldus and Oldradus, in Cap. Intellecto, &c. De Jure jurando. The same Baldus, Cons. CCCXXVII. Num. 7. Cardinal Thuscus, P. I. Concl. XL. Num. 1. and Conclus. DCXCIV. We have Instances of such an Alienation in Francis Haraeus, Annal. Ducum Brabant. & utriusq; Belgii, Tom. II. at the Year 1526. And in Guicciardini, Lib. XVI. Grotius.

[1 ]This is the Opinion of Gailius, De Pace publicâ, Cap. XV. Num. 14. See De Serres, Inventaire de l’ Histoire de France, in the Life of Charles the Wise. [In Regard to some Towns and Countries which that Prince had granted to the English, by the Treaty of Bretigny, p. 194. Edit. Paris. in Folio, 1627.] See the same Historian, in the Life of Francis I. where he is speaking of the Dutchy of Burgundy, [which the King, being Prisoner, had promised to deliver up to the Emperor, p. 565.] Grotius.

[2. ]That is, which is to last for ever, as far as in them lies, unless all concerned consent to some Separation.

[3. ]That is, Towns, Provinces, in a Word, all the particular Bodies of which the general Body of the State is composed.

[4. ]The learned Gronovius pretends, that the Conclusion to be drawn from thence is directly contrary from what our Author infers. For, says he, since the Parts of a State may subsist, when separated from that Body, less Difficulty is to be made of cutting them off, than the Limbs of the human Body, which perish the Moment they are separated from it. This would be good Reasoning, if the Manner in which the Parts of a State depend on the whole Body, was the same with that in which our Limbs depend on our Body. Those Limbs are made for the Body, and their Interest can never be divided from that of the Body: But the several Parts of a Kingdom are not made for the whole Body of the State, they are connected with it only for their own Good, and by the Effect of their own Will. Beside the common Interest of the whole Body they have a particular Interest; and if the latter is to be sacrificed to the former, this is not to be done at all Times, or beyond the Engagements which they have contracted voluntarily. But no Part of the State can be supposed to have consented that the others should have a Right to make it change its Master against its Will. This is not one of those Things which is decided by a Plurality of Voices, as Hertius pretends, who founds an Objection on it against our Author, in his Treatise De Feudis Oblatis, Part II. § 28. Tom. II. Comment. & Opusc. p. 543, 544. For the Right of a Plurality of Votes doth not go so far as to separate those from the Body who have not broken through their Engagements and violated the Laws of Society.

[1 ]See Chap. XXIV. of this Book, § 6. On this Principle the Lacedemonians formerly declared Anaxilaus innocent, who had surrendered Byzantium, being forced to it by Famine. Xenophon, Hist. Graec. Lib. I. (Cap. III. § 12. Edit. Oxon.) The Emperor Anastasius even thanked the Governor of Martyropolis in Mesopotamia, for surrendering that Town to the Persians, when he was no longer able to defend it. Procopius, who relates this in his Treatise on Justinian’s Buildings, (Lib. III. Cap. II.) elsewhere observes, that Valour and Famine cannot dwell together; nor will Nature bear, that the same Persons should want Food and act bravely. Gothic. Lib. IV. (Cap. XXIII. Hist. Miscell.) And in a Letter written by Cephales to the Emperor Alexius, concerning the Siege of Larissa, that Commander declares his Resolution of submitting to Necessity, and the irresistible Force of Nature, in surrendering the Garrison to the Enemy, who not only besieged, but evidently starved it.Ann. Comnen. Lib. V. (Cap. IV.) Grotius.

[2. ]De Civit. Dei, Lib. XVIII. Cap. II.

[3. ]Herodotus, Lib. VII. Cap. 132.

[1 ]The Body of the State has indeed no Power so to alienate one of its Parts, as to oblige it, against its Will, to acknowledge the new Master, into whose Hands they would deliver it, and give him a Right over it, without any other Title. But, this notwithstanding, the Body of the State may abandon one of its Parts, when in evident Danger of perishing by continuing united to it. The Right ought certainly to be equal on both Sides; and the Body of the State may, without Doubt, consult its own Preservation as well as that Part. It is sufficient that no direct Force be employed for putting it under another Government, and that it be allowed a Right of defending itself, if it can: In a Word, that it no longer protects it, which is all that can be reasonably required by him who has reduced the Body to so said an Extremity. Thus, in this Case, the Body of the State does not alienate the Part in Question; but only renounces a Society, the Engagements of which are at an End, by Vertue of the tacit Exceptions made by Cases of Necessity. It is in vain for our Author to pretend, that when a Part of the State divides itself from the Body, being forced by Necessity so to do, it makes Use of that Right of preserving itself which it had before the Establishment of Society; whereas the Case is not the same in Regard to the Body. This is founded on a subtile Reason, from which a false Consequence is drawn, viz. that the Body being formed only by the Establishment of Society, it had no Right before it was a Body, and consequently, had not that of preserving itself. But, tho’ a moral Body has no Right precisely as a Body, before it is formed, it still has a Right to preserve itself, so far as each of the Members that compose it has such a Right. The single Persons, who enter into a Civil Society, having both a Right and a Will to preserve themselves, which they cannot do without the Preservation of the Body; they are and ought to be supposed to communicate that Right to the Body itself. The Body therefore may as lawfully divide itself, in the Manner aforesaid, from any one of its Parts, when its own Preservation requires it; as that Part might divide itself from the Body in the like Case. And it may so much the more lawfully do so, as the Part is commonly but little considerable in Comparison of the Rest of the Body. Add to this, that, according to our Author’s Principle, the Part itself in Question would have no Right to separate itself from the Body of the State, even when in the last Necessity. For, in short, the Question does not turn on a bare private Person, or a Master of a Family; but on a City, or a Province, that is on a Body, which is indeed a Member of a larger Body; but at the same Time as real a moral Body, as the whole Body of the State, and consequently, had no Right, as a Body, before it was formed. After all, in the Case of Necessity here supposed, and which I own to be the only one that authorizes the Body of the State to abandon any one of its Parts; in that Case, I say, the Body would in vain endeavour to preserve and defend such a Part, being not in a Condition of preserving and defending itself. It is therefore a Misfortune, under which the unhappy Part must console itself, if it finds no Way of remedying it; and it would be highly unreasonable to expect, that the Body of the State should uselessly sacrifice itself for the Sake of such a Part. Our Author’s Opinion being thus rectified, will be sheltered from the Criticism of some of his Commentators, who offer several poor Reasons for confuting it, and perplex Things according to their usual Custom.

[2. ]As the Objection is subtile, and not very solid, so the Answer is obscure and unsatisfactory. The Sovereignty is indeed seated in the Body of the State; but it doth not thence follow, that the Body of the State may alienate any one of its Parts against its Will. Two different Things are here confounded, the Sovereignty, and the Members of the State or of Civil Society. The Sovereignty is still Sovereignty, tho’ the Number of the Members of the State decreases; as it is not the more Sovereignty merely because that Number increases. On the contrary, part of the Sovereignty may be laid down, without any Increase or Decrease of the Number of the Members of the State. Thus all that ought to be inferred from the Sovereignty’s residing in the Body of the State, is, that the Body of the State may alienate the Sovereignty, or some one of its Parts; and even in that Case, there is a Necessity of the Consent of all the Members of the State, or of all the small Bodies, which compose that great Body. But in Order to know whether the Body of the State has a Right to cut off any one of its Members, and give it to another Master, we are to enquire whether there is Reason to believe, that each Member designed in this Point to subject itself to the Will of the whole Body, which is not the Case. Even the most absolute Sovereignty does not, in its own Nature, include a Power of making the Subjects acknowledge another Master against their Will; as we have observed on B. I. Chap. III. § 11. Note 4. In answer to the Objection before us therefore, it is not necessary to say, with our Author, that the Sovereignty is indivisible, and resides equally in the Members of the Body of the State, because the Question in Hand does not regard the Extent and Exercise of the Sovereignty. The very Comparison he employs, taken from that Maxim of the old Philosophy, The Soul is intire in the Body, and intire in every Part, might enable a Disputant to draw a contrary Consequence from his Principle: For the Soul is not less a Soul, tho’ a Member of the Body be cut off, and it may command such a Separation, when the Good of the Body requires it.

[3. ]This is another subtle Answer, founded on false Ideas of the Nature and Origin of the Right of Property. While the primitive Community of Goods subsisted, if any Man who had taken Possession of a Piece of Land, had pretended, on quitting it, to convey it to another, that he might be Master of it after him; the Person to whom it was thus transferred did thereby acquire a Right, equivalent to what we call Alienation. For he who was first in Possession of the Piece of Land, had a Right to keep it as long as he pleased, and it was in his Power to dispossess himself of it, in favour of whom he thought proper. When he actually dispossessed himself of it, he thereby gave up his Right to the other, who might like wise keep it as long as he pleased. But whatever Idea is entertained of Alienation of Goods, it is out of the present Question, and our Author ought to have remembered what he had said before, B. I. Chap. III. § 12. that when a whole People is alienated, the Persons themselves are not alienated, but only the Right of governing them. And after all, it has, in my Opinion, ever been a Maxim of the Law of Nature, That every one may transfer to another, all the Right which in its own Nature may pass from one Man to another.

[1 ]For the same Reason the People have annulled a Discharge of Homage, granted by their King, by his own bare Authority, to a Vassal of the Kingdom. See Cromer. Hist. Polon. Lib. XXV. Grotius.

[2. ]Thus in Germany, in the Case of Alienations, the Consent of the Electors is looked on as the Consent of all the States, according to Custom, and the Agreements made on that Article. Grotius.

The Authors who have treated of the publick Law of Germany, are not agreed that the Consent of the Electors is sufficient for making the Alienation of some Part of the Lands of the Empire valid, whether such Alienation be made in Favour of a Foreigner, or some other Member of the Empire. See Boecler’s Note on this Paragraph, p. 220, &c. and the late Mr. Hertius’s Dissertation De Superioritate Territor. § 91, 92, 93. Tom. II. Comment. & Opusc. p. 363, 364. as also the Juris Publici Prudentia, by the late Mr. Cocceius, Cap. XIV. § 9, &c.

[1 ]Minores Functiones Civiles. In the Summary of this Paragraph, the Author stiles them Jurisdictiones minores; by which Words he means the Employments, Governments, and in general, all the civil Rights and Powers which have any Relation to the Government; or such as not being to be exercised without publick Authority, ought to be conferred by the Sovereign; so that they are exercised under his Name, however they are possessed.

[2. ]This Maxim is not universally true; and our Author has, with Reason, been blamed on this Score, who leaves Room for Criticism by too loose and indeterminate Expressions. An Usufructuary, (a Tenant) to whom he compares the Kings under Consideration, has only a temporary Right; and yet the Disposals by him made of the Income of the Estate which he enjoyed, subsist after the End of the Term for which he was Tenant. Laws made by an English Parliament, do not lose their Force as soon as the Parliament is dissolved, whether a new one be called or not. Our Author himself does not pretend that a King can revoke all the Acts of his Predecessors; as appears from Chap. XIV. of this Book, § 11, &c. The Principles he there lays down, will help us to discover what is his Opinion in this Place. When a King bestows any one of the Rights or Powers in Question, this is not a Contract made between one private Man and another, but a Favour granted by him as Head of the State. In order therefore to determine how far this Favour may be extended, we must examine the Extent of the Power of him who grants it. But it does not follow merely from the People’s conferring the Sovereignty on any one, that they invest him with a Power of conferring a Lordship, an Office, or any other Thing of that Nature, for ever, and much less under an hereditary Title: For this may be contrary to the Good of the State; especially when the Right or Power granted is considerable. Princes themselves have sometimes found by Experience how prejudicial such Sort of Concessions have been to them; because those who have been favoured with them, have in Process of Time made themselves so great, that they have entirely shaken off the Yoke, and set up for Sovereigns. So that, unless the People either expressly or tacitly, consent to the Perpetuation or Alienation of the Rights or Powers in Question, they of themselves expire at the Death of the King who gave them; and his Successor is not bound to confirm them any farther than he pleases.

[3. ]Thus Darius gave Syloson the City and Island of Samos.Grotius.

This Example is not entirely just. Darius only drove out Meandrius, who had seized on the Government, and thus facilitated Syloson’s Way to the Throne, of which his Brother Polycrates had taken Possession. The Story, with all its Circumstances, may be read in Herodotus, Lib. III. Cap. CXXXIX. &c. It would have been more to the Purpose to have related what Cornelius Nepos says, viz. that Darius gave the Heads of some Cities in Ionia and Aeolis the perpetual Command of each respective City. Vita Miltiad. Cap. III. Num. I. See also the Life of Themistocles, Cap. X. Num. 3.

[1 ]See Pufendorf, B. VIII. Chap. V. § 8, 11.

[2. ]The ancient Grecians gave the Name of Τέμενος, to a Portion of the publick Lands assigned to Kings. We have Instances of this in Homer, in Relation to Bellerophon, King of Lycia, Iliad. Lib. VI. (v. 194.) In Regard to Meleager, ibid. Lib. IX. (v. 573, &c.) And in Regard to Glaucus the Lycian, Lib. XII. (v. 313, &c.) Grotius.

We have a memorable Passage of the Grammarian Servius, on that Verse of Virgil,

• Insuper his, campi quod Rex habet ipse Latinus.
• Aeneid. IX. v. 274.

It was customary, says that Commentator, to give some Portion of the publick Lands to valiant Men, or Kings, as a Mark of Honour, as was done in Favour of Tarquinius Superbus, in the Campus Martius. Which Space Homer calls Τέμενος. According to the Laws of Lycurgus, a King of Lacedemonia was allowed Such a Portion of the best Lands as was necessary for supporting him handsomely, without making him too rich. As we learn from Xenophon, De Repub. Laced. Cap. XV. § 3. Edit. Oxon.

[3. ]Therefore they cannot alienate it, without the Consent of the States of the Kingdom. See an Instance of this in Mr. De Thou, Hist. Lib. LXIII. at the Year 1577. Grotius.

[1 ]Digest. Lib. XX. Tit. I. De pignoribus & hypothec. Leg. XIII. § 2.

[1 ]On this Question see Pufendorf, B. IV. Chap. X. with the Notes.

[2. ]Vit. Solon. p. 90. Tom. I. Edit. Wech.

[3. ]Declam. CCCVIII.

[4. ]Sophocles has given us the Will of Hercules. Trachin. ver. 1164, &c. That of Alcestis appears in Euripides, (Alcest. v. 282, &c.) We read in Homer, that Telemachus made a Donation, in Case of his Death, which is a Sort of Will. Odyss. Lib. XVII. (ver. 79, &c.) In the same Poet are some Examples of a Declaration of a last Will in Relation to certain Things to be done; as Plutarch shews from the Words of Andromache and Penelope. We have already produced other Instances of Wills made by the Antients, B. I. Chap. III. § 12. in the Text and in the Notes. The Practice of making Wills among the Hebrews, appears from Deut. xxi. 16. and Eccl. xxxiii. 25. Grotius.

The Wills of Hercules and Alcestis contain no Disposals of Goods, but only Directions for doing certain Things. We find in Euripides’s Alcestis, a Sort of Donation in Case of Death, made not by Alcestis herself, but by Hercules, ver. 1020, &c. Our Author has produced this Example in his Florum sparsio ad Justinian. p. 36. Edit. Amst. and this probably gave Occasion to the Mistake, which made him confound the Persons in this Place. Plutarch’s Reflection occurs in the Treatise on Homer’s Poetry, by some attributed to Dionysius of Halicarnassus. He there says, that The Poet knew it was customary for Persons going to War, or being in Danger, to recommend certain Things to their Relations. p. 74. Edit. Barnes. The Words of Andromache, from which he infers this, are in Iliad XXIV. v. 744, 745. Those of Penelope, in Odyss. XVIII. v. 264, &c.

[5. ]See Chap. XV. of this Book, § 5.

[6. ]It has not been quite abolished. See Bodin, Of the Commonwealth, B. I. Chap. VI.