Front Page Titles (by Subject) CHAPTER IX: When Jurisdiction and Property Cease. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER IX: When Jurisdiction and Property Cease. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
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. 2.
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When Jurisdiction and Property Cease.
I.That Property and Jurisdiction cease when he who had the Right dies and leaves no Successor.I. How the Right of Property, and that of Sovereignty, are originally acquired, and how they may be transferred, has been sufficiently declared; let us now see how they may entirely1 cease. And first, that they may cease, by being abandoned and deserted, has been by the Way already shewn; for Where there is no Will, there is no Property. But there is also another Manner of their ceasing, when the Subject in which the Jurisdiction or Property is, ceases to be, I mean, when this happens before any Alienation is made either expressly or tacitly, as in Successions to an Intestate. And therefore,2 if a Person dies without any Signification of his Will, and leaves no Relations behind him, all the Right that he has dies with him too, and then his Slaves (unless some human Laws3 obstruct<263> it) shall be free, and the People who were under his Government shall be at their own Disposal, because they are not in their Nature Things that may be possessed, unless they voluntarily part with their Liberty; but all other Things belong to4 the prior Occupant.
II.So does the Right of a Family cease, if that Family be extinct.II. The same may be said,1 if a Family that had any Right, happens to be extinct.
III. 1. And the same is also to be understood if a People be extinct. Isocrates,1 and after him the Emperor2Julian, said, that States were immortal;III.So does that of a People too, if they cease to be a People. that is, they might possibly prove so. Because the People is one of those Kind of Bodies that consist indeed of3 separate and distant Members, but are, however, united in Name, as having ἕξιν μίαν, one4Constitution only, according to Plutarch; Spiritum unum, one Spirit, as5Paulus speaks.6 Now this Spirit or Constitution in the People, is a full and compleat Association for a political Life; and the first and immediate Effect of it is the sovereign Power, the Bond that holds the State together, the Breath of Life, which so many thousands breath, as Seneca7 expresses it. For these artificial Bodies are like the natural. The natural Body continues to be still the same,8 tho’ its Particles are perpetually upon an insensible Flux<264> and Change, whilst the same Form remains, as Alphenus,9 from the Philosophers, argues.
2. And therefore that of Seneca, [Ep. 58.] where he says, No Man is the same when he is old as when he is young, is best interpreted as spoken of the Matter only.10 In the same Manner as11Heraclitus said, (Plato cites him in Cratylus, and Seneca in the abovesaid Place) We cannot go down twice into the same River; which Seneca very judiciously explains, The Name of the River continues, tho’ the Water is continually gliding along. So Aristotle, [3 Pol. 3.] comparing a River to the People, said the River retains the same Name, tho’ some Water is always coming and some going. Nor does the bare Name only remain, but also that Disposition, which Conon defines,12 ἕξιν σώματος συνεκτικὴν, The Habit of the Body that keeps its Parts together. Philo,13 πνευματικὸν συνέχον, The spiritual Connection; and the Latins call it, The Spirit. Thus then a People, (according to Alphenus, and Plutarch, in his Treatise Of the late Vengeance of GOD) are reputed at this Day the same as they were a hundred Years ago, tho’ there is not one of them now in Being, Μέχρις ἂν ἡ ποιον̂σα καὶ, &c. As long as that Society which constitutes a People, and binds them together, still subsists. Which are the very Words of Plutarch upon this Subject; and hence comes that Custom of Speech, that when we are addressing our Discourse to the People which are now living, we attribute to them what had happened to the same People many Ages before; as we may find both in profane Historians, and in the Holy Scriptures, Mark x. 3. John vi. 32. vii. 19, 22. Acts vii. 38. Matt. xxiii. 35. and Acts iii. 22. So in Tacitus, [Hist. Lib. 3.] Antonius Primus, serving under Vespasian, puts the Soldiers of the third Legion in mind, That under M. Anthony they had beat the Parthians, and under Corbulo the Armenians.
3. It was therefore more out of Passion than Truth, that Piso, in the same Tacitus,14 denies that the Athenians of his Time were really Athenians, because so many Slaughters had quite destroyed them, and says, that these were then only the Scum of other Nations. For that Conflux of Foreigners had perhaps diminished something of their antient Glory, but had not made them another People. Nor was he himself ignorant of this, when he objects against the same Athenians, how unsuccessful they had formerly been against the Macedonians, and how cruel and barbarous to the Subjects of their own State. But as an Alteration in small Parts does not make a People cease to be what they were a thousand Years ago, and above; so neither can it be denied, but that it is possible for a People to be ut-<265>terly extinct. And this may be done two Ways, either when the Body of the People is destroyed, or when the Form or Spirit (which I mentioned) is intirely gone.
IV.Which happens when its essential Parts are gone. De Pallio.IV. The Body perishes either when all its Members, without which it cannot subsist, are at once destroyed; or when its1 Frame and Constitution is dissolved and broken. To the first we may refer those People who are swallowed up by the Sea, as the People of Atlantica, according to Plato;2 and some others, mentioned by Tertullian; and also those who have been devoured by an Earthquake, or by the Opening of the Earth: You have Instances of such in Seneca,a and Ammianus Marcellinus, and in other Authors; and those who have voluntarily destroyed themselves, as the Sidonians and Saguntines. Pliny says there were fifty-three Nations of old Latium utterly lost, without the least Sign of them remaining. But what, if of such a People so few continue living, as that they cannot make up a People? Why in this Case they retain that Property which3 that People had as private Persons; but not what belonged to them as a People: And this is also to be understood of any4 Community.
V.When the whole Body of the People is subverted.V. The Frame and Constitution of the Body is dissolved and broken, when the Subjects, either of their own Accord are disunited on the Account of a Pestilence, or a Sedition,1 or are by Force so scattered, as that they cannot more re-unite, which often happens in War.
VI.When that Form is lost that makes them a People.VI. The Form of a People is gone when they lose all or some of those Rights they had in common; and this is done, either when every single Person is brought into Slavery, as the1Mycenaeans, who were sold by the Argives; the Olinthians,2 by Philip; the Thebans,3 by Alexander; and the4Brutians, made publick Slaves by the Romans: Or when, tho’ they retain their personal Liberty, they are yet utterly deprived of the Right of Sovereignty. So Livy tells us, that the Romans were willing that Capua should be inhabited as a Town, but that there should be no Corporation, no Senate, no Common-Council, no Magistrates, no Jurisdiction, but a dependent Multitude,5 and that a Governor should be sent from Rome, to<266> dispense Justice among them. And therefore Cicero, in his first Oration to the People against Trullus, says, that Capua had6 not so much as the Shadow of a State left. The same may be said of those reduced into the Form of a Province, and of them who are subjected to another People, as Byzantium was to Perinthus,7 by the Emperor Severus; and8Antioch to Laodicea, byaTheodosius.
VII.But not by only changing of Place. Flor. 2. 15.VII. But if the People shall only leave the Place, either of their own Accord, through Famine, or any other Misfortune, or by Compulsion, as the1Carthaginians, in the third Punick War; if the Form, I mentioned, continue, they do not cease to be a People, [[2 much less if only the Walls of the City be thrown down. And therefore, when the Lacedemonians refused to admit the Messenians to swear to the Peace of Greece,Plut. in Ages. because their Walls were demolished, it was carried against them in the general Assembly of the Allies.]]
VIII.Nor upon the Change of Government; where also of the Rank that is due to a new King, or a People lately become free.VIII. 1. Nor does it signify much, under what Government they are, whether Monarchical, Aristocratical, or Democratical. For the1Romans were the same People under Kings, Consuls, and Emperors. Nay, tho’ the Government be never so absolute, yet the People are the same they were, as when they were free, whilst he who rules, rules as the Head of that People, and not as the Head of another. For that sovereign Power which is in the King as Head, rests still in the People as in the Whole, whereof the Head is a Part: So that if the King, being elective, should die; or if the Royal Family be extinct, the Sovereignty reverts to the People, as we have shewed already. Neither can that of Aristotle be objected against me, who denies that to be the same State, where the Form of Government is changed, no more than the Musick is the same, when it is altered2 from a Doric to a Phrygian Air.
2. For we must know that there may be several Forms of one and the same artificial Thing, as a Legion has one Form of3 Command, and another of4 Engagement. Thus one Form of a State consists in the Community of Rights and Sovereignty, and another in the mutual Relation which the Parts between themselves have, as well those that govern, as those that are governed. This is the Politician’s Business, and that the Lawyer’s: And this is what Aristotle understood, when he added, But whether upon the Change of Government Debts are to be paid or not,Pol. 3. 3.is5another Consideration; that is, a Consideration belonging to another Science; which Aristotle would not confound with Politicks, lest what he blamed in others he should be guilty of himself, Μεταβαίνων ἐκ γένους εἰς γένος, Skipping from one Subject to another.
3. A Debt contracted by a free People, ceases not to be a Debt, because they are at present under a King; for the People are the same, and they still retain a Property in those Things that belonged to them as a People, and hold the Sove-<267>reignty too, tho’ it be not exercised now by the Body, but the Head. And hence we have an Answer ready to that Question which does sometimes actually arise concerning his Place in6 an Assembly of Confederates, who has newly taken upon him the Supremacy over a People who were before free; and that is, the same Place or Rank that the People themselves were entitled to; as Philip of Macedon7 took the Place of the Phocians in the Council of the Amphyctyones. So on the other Hand, the Place or Rank which formerly belonged to the King, the free People shall have.
IX.What if two Nations be united?IX. But1 if two Nations be united, the Rights of neither of them shall be lost, but become common, as the2Sabins first, and afterwards the Albans, were incorporated with the Romans, and so were they made one State, as Livy (Lib. 1.) expresses it. The same may be also judged of Kingdoms which are really and truly united, and not only by a Treaty of Alliance, or because they have but one Prince.
X.What if the same People be divided?X. On the contrary, it may so fall out, that what was before but one State may be divided, either by mutual Agreement, or by Force of Arms, as the Persian Empire was among Alexander’s Successors. When this happens there will be several Sovereignties in the Room of one, which shall each of them possess its own peculiar Right and Authority over its respective Parts; but if any Thing were held in common, it shall either be enjoyed in common, or proportionably shared among them. Hither also may be referred that Separation which is made, when People by one Consent go to form Colonies.1 For this is the Original of a new and independent People, Ὀυ γὰρ ἐπι τω̂ δον̂λοι, ἀλλ’ ἐπι τῷ ὅμοιοι εἰ̂ναι ἐκπέμπονται, [Lib. 1.] For they are not sent out to be Slaves, but2to enjoy equal Privileges and Freedom, says3Thucydides. And the same Author tells us, that a second Colony was dispatched by the Corinthians to Epidamnus, ἐπὶ τῃ̑ ἴσῃ καὶ ὁμοία, All upon the very same Foot. And King Tullius, in Dionysius Halicarnassensis, [Lib. 3.] says, Τὸ δε ἄρχειν ἐκ παντὸς, &c. For our Part we look upon it to be neither Truth nor Justice, that Mother Cities ought of Necessity, and by the Law of Nature, to rule over their Colonies.
XI.To whom now do those Things and Dominions belong which were once under Roman Jurisdiction, where it does not appear that they have been alienated.XI. 1. There is also this famous Question, among Historians and Civilians, to whom now those Things and Dominions belong, that were once Dependencies on the Roman Jurisdiction;1 several are for having them belong now to the Kingdom,<268> as it was formerly stiled, or to the Empire of Germany, (it is no Matter which Name you call it by) and pretend I don’t know what Substitution of this Empire in the Room of that; when yet2 it is sufficiently known, that the High-Germany, that is, what is on the other Side of the Rhine, was all of it, the greatest Part of the Time, without the Compass of the Roman Empire. And for my Part, I think, that we ought not to presume any such Change, or transferring of Right, unless upon very sure and good Grounds. Wherefore I say, that the Roman People are now the same3 they were heretofore, tho’ mixed with Foreigners; and that the Empire still remains in them, as in a Body, where it resided and subsisted. For whatever the Roman People had a Right to do formerly, before they had Emperors, they had a Right to do the same4 upon the Demise of any Emperor, before the Successor was established. And the Election too of an Emperor belonged to the People, and was frequently made, either5 by the People alone, or by the <269>Senate; as for those Elections which were made sometimes by one Legion, sometimes by another, they were not valid by any Right that the Legions had, for how is it to be imagined6 that a vague Name, like that, could have any Right, but by the Approbation of the People?
2. Nor does it at all argue to the contrary, that by the Constitution of7Antoninus, all who lived within the Dominion of the Roman Empire, were considered as Roman Citizens. For by that Constitution, the Subjects of the Roman Empire did only obtain such Rights as were formerly indulged their8 Colonies,9 municipal Towns, and 10 Provinces, where the People were dressed after the Roman Fashion, that is, they were made capable of receiving the Honours, and11 enjoying the Privileges of real Citizens of Rome; not that12 the Spring and Original of Empire was in any other People, as it was in the People of the City of Rome; this was not in the Power of the Emperors to grant, who could not change the Manner and Title of Sovereignty. Nor did it at all lessen13 the Right of the Roman People, that their Emperors afterwards chose to keep their Court at Constantinople, rather than at Rome; for even then also the Election, which was made by<270> such of their own Body as dwelt at Constantinople, (whence Claudian14 calls the Constantinopolitans, Romans) was to be ratified by all the People; who preserved a very considerable Mark of their Right,15 in the Prerogative of their City, and the Honour of their16 Consulate, and in several other Instances: And therefore all the Right that those, who lived at Constantinople, could possibly have in electing an Emperor, depended altogether on the Will of the People of Rome; and when17 they,18 contrary to the Mind and Custom of the Roman People, had submitted to the Dominion of a Woman, the Empress Irene, to whom they had taken an Oath, as Zonaras has it; not to mention any19 other Reasons, they justly revoked that Concession, which they had either20 expressly or tacitly made, and by themselves chose an Emperor, and proclaimed him such, by the Mouth of their21 Chief-<271>Citizen, that is, their Bishop; as in the Jewish State, the first Person, when there was no King, was their22 High-Priest.
3. Now this Election was personal23 in Regard to Charlemagne, and some of his Successors,24 who very carefully distinguished their Right of Sovereignty over the Franks and Lombards,25 from that which they had over the Romans, as acquired by a new Title.26 But the Nation of the Franks being afterwards divided into the Western, who now possess France, and the Eastern, who have Germany, (Otho Frisingensis calls them the two Kingdoms of the Franks) when the Eastern Franks began to elect themselves Kings (for tho’ till that Time the Succession to the Crown of the Franks was, as it were27 agnatic, yet it did not depend so much upon any fixed and certain Law, as upon the Choice of the People) the Romans, that they might have a stronger Assistance and Security, thought fit not to chuse a King of their own, but to take him whom the Germans had chosen, but yet with the Reserve28 of a Right, either to approve or disapprove the Election, so far as that Affair had any Relation to them.
4. And this Approbation of theirs used to be declared by their Bishop, and was solemnly notified by the Ceremony of a particular Coronation. And therefore, tho’ he who is elected by the seven Electoral Princes, who represent the whole Body of the Germans, has an undoubted Right to reign over the Germans, according to their own Customs; yet is he not but by the Approbation of the Roman People made King or Emperor of the Romans, or as Historians often call him,29 King<272> of Italy; and by Vertue of that Title,30 he becomes Lord of all that did formerly belong31 to the Roman People, and has not passed from them to32 the Jurisdiction of any others, either by Treaties, or by Seizure, upon the Presumption of its being abandoned, or by Conquest. From whence we may easily apprehend by what Right the Bishop of Rome, when the Throne becomes vacant,33 grants the Investiture of the Fiefs of the Roman Empire, because he holds the prime Rank among the Roman People, who are at that Time intirely free and independent. For it is34 usual to have what relates to a whole Body, executed by the principal Person, in the Name of that Body, as we have elsewhere said. Nor is it ill observed by Cynus and Raynerius, that if the Roman Emperor, by Sickness or Captivity, be incapable of discharging the Offices of his Government,35 it is in the Power of the People of Rome to appoint one in his Stead.
XII.Of the Right of Heirs.XII. That the Person of the Heir is to be looked upon to be the1 same as the Person of the Deceased, in Regard to the Continuance of Property, either publick or private, is an undoubted Maxim.
XIII.Of the Right of a Conqueror.XIII. But how far the Conqueror may succeed to the Conquered, shall be explained below, when we treat of the Effects of War.
[1 ]That is, so that the Right is extinct. For in all Cases, where the Thing itself over which we have such a Right, is not destroyed, it may hereafter belong to some other Person; but then this will not be by a Continuation of the same Right, but by Vertue of a new Title.
[2. ]See Pufendorf, B. IV. Chap. VI. § 14. B. VI. Chap. III. § 11. and B. VIII. Chap. XI. § 1.
[3. ]By the Roman Law, all the Goods of Persons dying intestate, and who had no legal Heir, belonged to the Treasury; and consequently Slaves, who were reckoned among Goods. Code, Lib. X. De bonis vacantibus, &c. Leg. I. See also the Digest. Lib. XLIX. Tit. XIV. De jure Fisci, Leg. I. § 2. and Cujas, on the Code, Lib. VI. Tit. LI. De Caducis tollendis, with Fabrot’s Notes; as also those of Mr. Schulting, on Ulpian. Tit. XXVIII. § 7 p. 673. But if the Master abandoned his Slave, he belonged to the first Occupant, according to the general Rule concerning Things abandoned. See Digest. Lib. XLI. Tit. VII. Pro Derelicto, Leg. I. and Leg. ult. Unless the Master thus deprived himself of his Right, by in human Avarice, because his Slave was afflicted with violent Sickness; for then such a Slave was set at Liberty. Digest. Lib. XL. Tit. VIII. Que sine manumissione, &c. I know not why one of our Author’s Commentators asserts that this Right of taking Possession of a Slave thus abandon’d, was abrogated by Novel. XXII. Cap. XII. For Justinian in that Place only confirms the Law before quoted, by ordering that if a Master abandons his sick Slave of either Sex, his or her Marriage with a free Person should be reputed valid, by Vertue of the Freedom acquired by such a Slave, according to the Title of the Digest. Pro Derelicto, to which we are referred; and thus Julian understands it in his Abridgment. See Novel. CLIII. Cap. I. The Expressions of that here produced are indeed perplexed; as they are through the whole Compilation; but it will appear on a proper Attention, that the Emperor only distinguishes two Manners of abandoning a sick Slave; one by turning him out of the House; the other by taking no Care of him, though he is kept.
[4. ]Even though the Goods fall to the Sovereign, for the Sovereign becomes Master of them by Right of first Occupancy. The whole Difference is, that no other Person can then make Use of that Right.
[1 ]As that of Denmark was formerly, Crantzius, Vand. VIII. 23. That of Rugenlandt,Crantzius, Vand. VIII. 12. That of the Pelasgi and the Thessalians, Gregor. Lib. VII. That of the Usanchanidae, in Persia, Leunclav. XVI. Add to these Leo, Lib. II. of the Africans of Tarodent; and if you please, Ernest Cothman, Cons. XLI. Num. I, &c.
[1 ]States, says he, being immortal, feel the Effects of human and divine Vengeance. Orat. de Pace. p. 183. Ed. H. Steph.
[2. ]At the close of his Letter in Favour of those of Argos, p. 411. Edit. Spanheim.
[3. ]Seneca, Epist. CII. Some Bodies are continual, or all of a Piece, as a Man: Some are compounded, as a Ship or an House, and indeed all such Things as have different Parts joined and united: Some consist of Members that are always separate and disjoined, as an Army, a People, a Senate. This is taken out of Achilles Statius, whose Words on Aratus are these, from that Conon, who was the Inventor of Berenice’s Hair, a Constellation at the Tail of Leo: παρετήρησε δε Κόνων, &c. Conon, the Mathematician, observed, that Such Things are called Bodies, as are joined and kept entire, ὑπὸ μια̂ς ἔξεως, by one Constitution, as Stone or Wood. Now this ἑξις is that Spirit (or Principle of Union) which holds the Body together: That such Things are said to be compacted, as are not thus fastened by any natural Cohaesion, as a Ship, or an House, for the one consists of several Planks, and the other of several Stones; that other Things, such as a Chorus, are stiled διεστω̂τα, distant and separate. And of these last also, there are two different Sorts; for some are made up of Bodies, the Quality and Number of which are fixed and settled, as is a Chorus; others consist of undetermined Bodies, as a Crowd, or a People. It is plain, that from hence are borrowed what Pomponius has, L. rerum de Usurp. & Usucap. And what Paulus says, Statuam uno Spiritu contineri, that an Image is held together by one Spirit, or is all of one Piece, L. in rem. § item. Where he also makes the same Distinction of the different Sorts of Bodies. Some others too have used these Expressions, Philo, De Mundo, ἕξις ἐστὶ πνεν̂μα ἀνάστρεϕον ἐϕ’ ἑαυτῷ, Constitution is a Spirit circulating in itself, &c. And again, ἕξις ἐστὶ πνευματικὸς τονὸς, δεσμὸς οὐκ ἄῤῥηκτος, ἀλλὰ μονὸν δυσδιάλυτος. Constitution is a spiritual Contexture, a Tie not altogether in capable of being broken, but not to be broken without Difficulty. See also Boethius, 1 Arithmet. and pray observe, that when we speak of a Constitution, or a Spirit, in Relation to a People, we don’t take the Word in its Strictness, as Conon did, but analogically, by Way of Comparison and Similitude, as we do indeed when we call the People a Body. Alfenus terms this Spirit the Form of a Thing, in L. proponebatur, D. de judiciis.Grotius.
[4. ]Ἕξις μία. Our Author doth not tell us where this occurs. I am much mistaken if he had not a Passage of the Treatise De animae procreat. p. 1025. Tom. II. Edit. Wech. in View; where we read μορϕὴ instead of Ἕξις.
[5. ]See the Law quoted in Note 3.
[6. ]Ἡ πολιτεία βιὸς πολέως, Government is the Life of the State.Aristotle, Polit. IV. 11. Grotius.
[7. ]De Clement. Lib. I. Cap. IV.
[8. ]Alfenus, in the above cited Place, gives you an Instance in a Ship. And so does Ulpian, in L. quid tamen, D. quibus modis usus fructus amittatur. They say that the Ship is the same, tho’ it has been refitted in all its Parts, provided the Repairs were done at several and distant Times; but the Case is quite otherwise, if it be pulled all to Pieces, and so rebuilt. L. qui res, § aream, D. de Solutionibus.Plutarch in Theseus, τὸ δε πλοɩ̂οη ἐν, &c. The Vessel with thirty Oars, in which he (Theseus) with some young Gentlemen, had made a Voyage, and returned in Safety, the Athenians preserved even to Demetrius Phalereus ’s Days, by taking out the old decayed Wood, and refitting it with such as was strong and new; insomuch that this Ship became a Precedent to Philosophers, when they were canvassing whether a Thing inlarged and repaired was still the same, some declaring that it was, others that it was not. In this Case, so controverted by Philosophers, the Civilians have very judiciously preferred the affirmative Side. And Tertullian, who perfectly understood the Law, in his Book, De resurrectione Carnis, We have often seen a Ship torn by a Storm, or rotten with Worms, by having all its Parts refitted and mended, still the same as it was before, and even boasting on Account of its new Repairs. But you must suppose, that the Keel or Bottom remains intire, which indeed the Word Resoluta in Paulus’s Expression does imply, L. inter stipulantem. § Sacram. D. de verb. oblig. And this is confirmed by what precedes in Tertullian, and by what follows in Paulus. Philo, De Mundo, οὐ γὰρ δήπουθεν, &c. Not that whose Parts do by Degrees perish and decay, it itself perishable; but that whose Parts do all at one and the same Instant perish and drop to Pieces.Grotius.
[9. ]See the Law quoted in the Close of Note 3. on this Paragraph.
[10. ]And Epicharmus, in Diogenes Laertius. Grotius.
[11. ]See Menage, on Diogenes Laertius, Lib. IX. § 8.
[12. ]Ἕξις σώματος συνεκτική. See the Passage at length in Note 3. on this Paragraph.
[13. ]Πνευματικὸν συνέχον, says our Author. But I find in the Jewish Doctors two Treatises of the Incorruptibility of the World, only this Expression, Ἕξις πνευματικὴ, which comes to the same. See p. 953, and 1165. Edit. Paris.
[14. ]Julian, Misopog. says the contrary of these very Athenians.Grotius.
[1 ]Servius in Fulden. Excerp. ad I. Aeneid. An Army is overthrown two Ways, either by an utter Slaughter, or by being intirely dispersed and routed.Grotius.
[2. ]Myus in Vitruvius, Helice and Buris in Pausanias, Strabo, Seneca, Nat. Quaest. Lib. V. Cap. XXIII. XXXII. and in Antholog.Grotius.
[a ]Epist. XCI. Lib. XVII. Rer. gest. Diod. XVI.
[3. ]That is inherit the Goods and Rights of all the private Persons who are lost. See Pufendorf, B. VII. Chap. XII. § 8.
[4. ]The Author in his Margin quotes two Laws, the former of which expressly decides that if a Body is reduced to one Person, that Person preserves the Name and Right of the whole Body. Dig. Lib. III. Tit. IV. Quod cujusque Universitatis, &c. Leg. VII. § 2. The other Law is not much to the Purpose, the Caseisthis. A Slave, who belonged to several Masters, being taken Prisoner of War, is redeemed by one, who thereby has a Right to keep him, till his former Masters reimburse the Expence of the Ransom. See B. III. Chap. IX. § 13. Num. 6. If the Reimbursement is made in the Name of all those, to whom the Slave belonged in common, they from that Moment recover him in common. But if in the Name of one, or some of them only, then he or each of them recovers not only the Share he had before the Slave was made Prisoner, but also, in Regard to the other Shares, succeeds to the Right of him who delivers the ransomed Slave; that is, as Anthony Faure explains it, Jurisprud. Popinian. Tit. XI. Princip. VIII. Illat. XIV. till the rest have paid their Part of the Ransom, the Slave remains as it were a Pledge in the Hands of him or them, who have paid the Money. This is the whole Purport of the Law in Question, or rather of the Paragraph, the Sense of which, sufficiently clear from the rest of the Law, was perhaps misunderstood by our Author, Lib. XLIX. Tit. XV. De Captivis & postlimin. &c. Leg. XII. § 13.
[1 ]Philo, in his aforesaid Treatise, De Mundo, Τὰ μὲν ἐκ διεστηκότων, &c. Bodies composed of distinct and distant Members, such as Flocks, Herds, Chorus’s, Armies, as well as those that are made up of compacted Parts, are dissolved by Division and Separation. See what is said above about a Ship. Grotius.
[1 ]See Diodore, of Sicily, Lib. XI. Cap. LXV.
[2. ]This is related by the same Author, Lib. XVI. Cap. LIV. p. 538. Edit. H. Steph.
[3. ]See the same Writer, Lib. XVII. Cap. XIV. p. 569. and Arrian, Lib. I. Cap. IX. &c.
[4. ]We have this Fact from Aulus Gellius, Lib. X. Cap. III.
[5. ]See Festus upon the word Praefectura.Velleius, Lib. II. Their Rights were restored them about 152 Years after Capua, in the Punick War, had been reduced by the Romans into the Form of a Prefecture, or Government. Add to this the Examples produced in the Text and Notes, at B. I. Chap. I. § 8. Grotius.
[6. ]Severus gave to the Alexandrians, who had lived under the Conduct of a Judge, called Juridicus, without any publick Council, the Liberty of chusing a Senate of their own.Grotius.
[7. ]See Xiphilinus, in his Life of Severus.Herodian, Lib. III. And to these sub join what is below in this, B. II. Chap. XXI. § 8. Grotius.
[8. ]See Zonaras. Grotius.
[a ]Theod. V. Hist. Ecc. Zon. in Val. & Theo.
[1 ]The Romans consented that the Carthaginians should build another City at some Distance from the Sea; but the latter chose rather to perish with their City; as it appears from the Historian, quoted by our Author in the Margin, and from Appian, in Libyc. Bello.
[2. ][[Footnote number not in text, replaced from Latin edition. As the Geloi transported to Phintias.Diodorus Siculus, in Frag. Peires.Grotius.
[1 ]See Pufendorf, B. VIII. Chap. XII. § 1. &c.
[2. ]A Dorico modo in Phrygium. From a Doric to a Phrygian Air. The Words of Aristotle are answerable to the Latin of our Author: Δόριος Φρύγιος. Politic. Lib. III. Cap. III. p. 341.
[3. ]For in that Regard several Parts are distinguished, according to the different Generals, or subaltern Officers, who command.
[4. ]The Camp was dispersed, and the Army drawn up in several Manners. See on this Subject Justus Lipsius’s Treatise, De Militâ Romanâ; and the fourth Volume of Dom. Bernard de Montfaucon’s Antiquity explain’d and illustrated with Figures.
[5. ]Thus Gifanius translates ἕτερος λόγος, is another Question. But Boecler, in his Dissertation De actis Civitatis. Tom. I. Dissert. p. 860. pretends, but without alledging any Reason, that the Words ought to be rendred, we shall speak of that elsewhere. But the Philosopher treats this Question in no other Part of his Works; and it is evident he would not undertake to decide it.
[6. ]See Pufendorf, B. VIII. Chap. XII. § 4.
[7. ]There is no Mention of Rank in the Decree of the Amphictyons, preserved by Diodore of Sicily. It is only said there that Philip was to have two Votes in the Assembly, as the Phocians had. Biblioth. Hist. Lib. XVI. Cap. LXI. p. 542. Edit. H. Steph.
[1 ]As the Celtiberi, according to Diodorus, were formed of the Celtae and the Iberi. See if you have an Opportunity, Reinking upon this Subject. Lib. I. Class. IV. Cap. XVII. Num. 95. and what is cited there. Grotius.
[2. ]See Boecler’s Dissertation, already quoted, p. 882, 883. and Pufendorf, B. VIII. Chap. XII. § 6.
[1 ]See Pufendorf, B. VIII. Chap. XI. § 6. Chap. XII. § 5. It is well known that the present Colonies always remain dependent Members of the State, from which they are sent.
[2. ]But yet with all due Respect to the Mother States, of which Respect we discoursed, B. I. Chap. III. § 21. Curtius, Lib. IV. The Tyrians founded Carthage, and therefore were always honoured as their Parents.Grotius.
[3. ]The same Historian, speaking of the second Colony, sent by the Corinthians to Epidamnus, says, They ordered publick Notice to be given that such as were willing to go thither should enjoy the same Rights and Privileges as those who staid at home. Ibid. Cap. XXVII. Edit. Oxon.
[1 ]Our Author has been very much criticized on this Article; and it must be confessed not without Reason; for several Objections may be formed against him. Some have even accused him without Ceremony and with some Sharpness, of having started and decided the Question in this Place only with a View of making his Court to the Pope, and the Prince of whose Dominions he composed and published his Book. I hope I may be allowed to pass a more favourable Judgment of him, and reject Suspicions so little suitable to the Character of this great Man. Waving all Interest of a Translator and Commentator, I am persuaded that my Author has sincerely and honestly followed the Consequences of certain Principles, false indeed, but specious, and which he permitted to dazzle him. Those who are most severe upon him, own that while he designs, according to them, to flatter the Pope, he says what cannot but offend him very much, viz. That he ought to be considered only as the first Citizen of Rome; a Notion far removed from his ambitious Pretensions, as Grotius certainly knew. He saw his Book in the Index Expurgatorius, some time after its Publication. But whatever becomes of this Question, though I disapprove of the too warm Zeal of his Commentators, and of some other Authors, who have censured him in some particular Works; I will not fail of doing Justice to the Reasons they have employed against him, and which I shall borrow from them in the following Notes; I shall however take the Liberty of augmenting them, turning them my own Way, and sometimes even of correcting them.
[2. ]This Reason would prove only, that the Emperors of Germany, Successors to the Roman Emperors, had a larger Extent of Lands in old Germany under their Jurisdiction. But, as in Order to succeed to the Roman Empire, it would not have been necessary that they should possess all that had depended on it; for several Parts of it might have been taken away by several Revolutions that happen in States: So, on the other Hand, they might have extended their Jurisdiction over Countries, which had never been conquered by the Roman Arms, and of which they were Masters by Vertue of some other Title. Our Author therefore has good Reason for maintaining that there has been no real Substitution of the Empire of Germany to the antient Roman Empire; but for Proof of this, he ought to have said, which however he will not acknowledge, that when the Roman People submitted to Charlemagne, the first Emperor of Germany, they had long before lost the Rights of their antient Empire. This Argument was not confuted by the Commentators.
[3. ]It is indeed the same, if considered simply as a Body of a City; but not in Regard to the Rights of its antient Empire, which have been long extinct. Thus when that fatal Period is found, we may grant our Author all he says of the Times before it, without any Advantage to his Cause.
[4. ]Our Author has already said, B. I. Chap. III. § 10. That the Roman Empire was elective. And it is certain that, as the first Emperors insensibly seized on the Sovereign Authority, without the express Consent of the People; so neither was there any fixed and fundamental Law concerning the Order of the Succession. We find, however, that the Sons, either natural or adopted, commonly succeeded; tho’ it must be confessed, this was not the Result of a free Election of the Body of the State. Since Augustus, they did not even pretend to consult the People or the Senate: All depended on the Will of the Armies, and consequently on the Law of the strongest. After the Death of Nero, as Tacitus observes, The Secret of State was discovered, that the Emperor might be chosen elsewhere than at Rome. Hist. Lib. I. Cap. IV. Num. 2. Not that the People had really deprived themselves of their Right in Favour of the Armies; but they made no more Use of it, than if they had had none; and if they approved of Elections in which they had no Share, it was because they could not do otherwise. Such is the inevitable Fate of all Monarchies, where a strong Army is always on Foot.
[5. ]You have frequent Instances of Elections, either made or approved of by the Senate, in Adrian, Pertinax, Julian, Severus, Macrinus, Maximus, Balbinus, Aurelianus, Tacitus, Florianus, Probus, in Dion, Spartianus, Capitolinus, Lampridius, Vopiscus. Before Aurelian, the Empire was six Months without a Prince, and the Soldiery did several Times intreat the Senate to chuse an Emperor. There is an eminent Letter of Albinus in Capitolinus, concerning the Right and Prerogative of the Senate, and a Letter of the Senate in behalf of the Gordians.Macrinus, in an Harangue of his to the Senate, The Soldiers have offered me the Empire; I accept, illustrious Fathers, the Charge of it, till I know your Pleasure, and if it be as agreeable to you as it is to the Gentlemen of the Army, I will retain the Government. The Emperor Tacitus, in Vopiscus’s Life of Probus, Me indeed, by the discreet Choice of the Army, has the Senate made their Prince. And Probus, in the same Vopiscus, The last Year, most illustrious Fathers, by a just Prerogative, did your Goodness give the World a Prince, one of your own Order, who are the Princes of the World, always have been, and always will be so, in your latest posterity. And Majorinus in his Address to the Senate, mentioned in the Novellae, You must acknowledge, most illustrious Fathers, that I was created Emperor, as well by your free Choice, as by the Proclamation of an invincible Army.Grotius.
[6. ]Pufendorf, in a Dissertation, De Interregnis, which appears in the Collection of his Dissertationes Academicae, § 17. explains this in the following Manner: That the Soldiers, being only Ministers of the State, could not lawfully appropriate to themselves the Right of disposing of the Government. The Maxim is true; but that is not our Author’s Thought. He means, that as there were several Legions, and those Legions not being fixt and determined Bodies nor confin’d to any Time or Place; it could not be known what Legions had a Right to elect the Emperor, preferably to the others. In Reality it happened sometimes that an Army having proclaimed one in one Place, another was proclaimed in another Place.
[7. ]Of Antoninus Caracalla. Digest. Lib. I. Tit. I. De Statu hominum, Leg. XVII. See the excellent Treatise of Baron Spanheim, intitled, Orbis Romanus.
[8. ]The Colonies had indeed the same Privileges as the Roman Citizens, in what related to Marriages, Wills, Infranchisement and other private Affairs; but not a deliberative Voice in the publick Assemblies, nor a Right of standing for the Offices of the City of Rome. See the illustrious Author last quoted, Lib. I. Cap. IX.
[9. ]Municipia. These were, properly speaking, Towns governed by their own Laws, and which had a deliberative Voice at Rome, as also a Right of standing for Offices, especially in the Army. Some however were deprived of the Privilege last mentioned. See the same Author, Cap. XIII.
[10. ]Provinciae togatae. What the Romans called Toga, was, according to some, a round Garment closed on all Sides, and without Sleeves; which was worn so that, after having passed the Head, the right Arm was thrust out, and the other Side of the Garment lay on the left Shoulder. But the learned Father Montfaucon is of Opinion that it was open before. See Antiquity explained and illustrated by Figures, Tom. II. B. I. Chap. V. p. 16, 17. Whatever becomes of this Question, the Use of this Garment was so peculiar to the Romans, and they esteemed it so highly, that the bare Allowance of wearing it supposed a Grant of the Right of a Roman Citizen. For this Reason the Appellation of Gallia Togata was given to Gallia Cisalpina, and not, as Gronovius says, to Gallia Narbonensis, which, on the contrary, was called Gallia Braccata, on the Account of a very different Dress. See once more Spanheim’s Orbis Romanus, Exercit. II. Cap. VI. p. 239. and Montfaucon’s large Collection, before quoted, at the End of the same Chapter.
[11. ]Uti Jure Quiritum. This is not the same as Jus Latii, as Mr. Spanheim shews, Orb. Rom. Exercit. I. Cap. IX.
[12. ]The Senate in Favour of Gordianus, in Herodian, exhorts the Provinces, Πείθεσθαι Ῥωμαίοις ὠ̑ν δημόσιον ἄνωθεν τὸ κράτος ἐστὶν ἀυτάτε ϕίλα καὶ ὑπήκοα ἐκ προγόνων, To obey the Romans, to whom the Empire had for so many Ages belonged, and to whom other Nations, by an antient Right, were in Subjection and Friendship. And in the same Author, Maximus, in his Speech to the Soldiery, Οὐ γὰρ ἑνος ἀνδρός, &c. For our Empire is not the Property of any one Man, but from long and distant Ages the common Possession of the Roman People; and the Fortune of the Empire resides in this City. We are only chosen to share with you the Care and Administration of the publick Concerns.Claudian, speaking of Rome.
[13. ]There was more than a bare Change of Residence, it was manifestly a Communication of Rights. The Name of New Rome, given to the City of Constantinople, with all the Encomiums, and all the Privileges of the Old, particularly the Consulship divided between one Consul at Rome and one at Constantinople, sufficiently shew that the Source of the Empire was from that Time no longer at Rome. See the learned James Godefroy on the Theodosian Code, Tom. V. p. 222, 223. and Spanheim on Julian’s first Speech, p. 75, 76. Our Author says that the Emperors were then elected at Constantinople by a Part of the Roman People. But was the Election made by Romans only, or by Persons commissioned by them? This was far from being the Case; for on the Division of the Empire into the Eastern and Western Empires after the Death of Theodosiusthe Great, the Emperor who resided at Rome, was to be confirmed by that of Constantinople; without which his Authority was not considered as lawful and well established. See Gronovius on this Place.
[14. ]In Eutrop. Lib. II. Ver. 135.
[15. ]Zonaras says, that Rome had the Preference, because the Empire came from thence. Ammianus, Lib. XIV. talking of Rome, She is, however, in all Parts regarded as Queen and Mistress.Claudian, of Honorius residing at Ravenna:
[16. ]For one of the Consuls was of the City of Rome, and he took Place of the other. Procopius, in his Secret History. Grotius.
[17. ]Our Author makes a terrible Skip here. Had he forgot that about the Close of the fifth Century, in the Year 476. Odoacer, King of the Heruli, a People of Scythia, gave the finishing Bow to the Empire of the West by taking Rome, and making himself Master of Italy? And that the same Prince was vanquished and dispossessed, thirteen Years after by Theodoric II. King of the Goths, whose Successors reigned in Italy near a hundred Years? The Roman People therefore had been conquer’d as lawfully, as they themselves had conquered so many other Nations; so that they were no longer the same People, according to the Principles laid down by our Author, § 6. And after the Goths had been driven out of Italy by Justinian, Rome and the other Cities, which he took from them, became dependent on his Empire. The Roman People was then made tributary to the Emperor of Constantinople. They afterwards had Exarchs, or Governors, as a Province of the Eastern Empire, so that their antient Right had been long extinguished, when Charlemagne made War on the Lombards, who had driven out the Exarchs, and made themselves Masters of the greatest Part of Italy.
[18. ]Nero, in the fourteenth of Tacitus’s Annals, accuses his Mother, for hoping to have a Sharein the Empire, and to see the Praetorian Cohorts take an Oath to a Woman, a Thing that would disgrace both Senate and People.Priscus in Excerp. Legat. Οὐ γὰρ θηλειω̂ν, ἀλλ’ ἀῤῥένων ἡ τη̂ς Ῥωμαϊκη̂ς βασιλείας ἀρχὴ, For the Sovereignty of the Roman Empire does not belong to Women but to Men.Lampridius, after the Death of Heliogabalus, It was particularly provided, that no Woman should ever enter the Senate, and that whoever should attempt to introduce one should be cursed to the Pit of Hell.Trebellius Pollio, in Herennianus. Zenobia usurping the Empire, kept the Government in her Hands much longer than a Woman ought to have done.Grotius.
[19. ]It was the Popes, who engaged the Cities of Italy to shake off the Yoke of the Emperor of the East, and the Reasons or Pretexts by them used, and which our Author leaves us to guess, were on one Hand, the Tyranny of the Exarchs of Ravenna: On the other, the Zeal, which the Emperor Leo shewed against Images; a Reasonvery proper for the irritating the ignorant and superstitious People, whose Credulity and Bigotry gave the Bishop of Rome an Opportunity of making himself a Temporal Prince by Degrees. His Spiritual Kingdom was already of a large Extent; and Pepin, Charlemagne’s Father, very well understood how to make his Advantage of it; for by the Fear and with the Approbation of Pope Zachary, he got King Childeric, condemned to pass the Remainder of his Days in a Monastery, and engaged the Francs to acknowledge him for their King, as more worthy of the Crown, of which he before had the whole Authority under the Title of Maire of the Palace: In Return for these good Offices, Pepin, who besides was not insensible to the Desire of making Conquests in a Country so fine as Italy, easily came to a Resolution of marching to the Assistance of Pope Stephen, Zachary’s Successor, in Order to free him from Aistulphus, King of the Lombards; and procured him the Exarchate of Ravenna, with a Sort of Temporal Power. See Note (8.) on B. I. Chap. III. § 13. Charlemagne inherited his Father’s Sentiments in that Respect, when he had driven the Lombards out of Italy, and conquered the Kingdom by them established.
[20. ]This Concession being a gratuitous Supposition, as appears from the preceding Notes, the Revocation is so too.
[21. ]Our Author means the Coronation of Charlemagne by Leo III. who proclaimed him Emperor of the Romans. But he did not then begin to reign over the Romans. He was already in Possession of the Thing, and only acquired a dazzling Title, which represented the Dignity of the antient Emperors of Rome, with which however he was not invested in the same Manner, and with the same Extent. He was far from succeeding to all their Rights, those Rights were extinct, as well as the Rights of the People. The People were become dependent on the Emperors of Constantinople, as was before observed. Charlemagne himself acknowledged that Dependence, by his Transaction with the Empress Irene; a Transaction, which was ratified by Nicephorus, that Princess’s Successor. See Eginhart, De vitâ Caroli Magni, Cap. XXVIII. with the Notes of the Commentators, which may be seen in Mr. Schmincke’s Edition; as also the Life of Charlemagne, by Boecler, in Tom. II. of his Dissertations, p. 2111. &c. and in III. p. 21. &c. and Pufendorf, De Origine Imperii Germanici, Cap. I. p. 50. &c. with the Notes in the late Mr. Titius’s Edition.
[22. ]Supposing this true (for were not the Judges the first Person in the State, before the Institution of Kings?) it doth not thence follow that a Bishop ought to be the first Person of his City, or that the Ecclesiastical Order ought to hold the first Rank in a Civil Society. Under the Law, the High Priests had, beside the Rights relating to Religion, some Authority in Civil Affairs; it was a politick Establishment. But the Case is not the same under the Gospel; and if Ecclesiasticks have found Means to abuse the Simplicity of the People, for gratifying their own Ambition, it is contrary to the Rules of their Duty, and the Spirit of the Doctrine they preach.
[23. ]This is not agreed on; and it is much more probable that, as Charlemagne succeeded to the Rights of the Emperors of the East over Italy, he had also an hereditary Title to them. We find, at least, that Charlemagne and some of his Successors declared their Sons Emperors, without consulting either the Roman People or the Pope. See Hermann. Conring. De German. Imper. Rom. Cap. VII. § 21. &c. If in Process of Time, the Popes would pretend to crown whom they pleased, it was the Result of a Design they had long entertained, of making themselves Temporal Sovereigns both of Italy, and, if they could, of the whole Earth. But all this is nothing to the principal Question in Hand.
[24. ]See the Synod of Pont-yon among the Capitularies of Charles the Bald. And Aemilius, Lib. III. of Charles the Great.Grotius.
[25. ]They had Reason to make this Distinction; for they reigned over the Francs, and had conquered the Kingdom of the Lombards, before they acquired the Title of Emperors. But that Title gave them no Right over the antient Roman Empire: it was a Name not worth even the Sovereignty of Rome, and of the Cities of the Exarchate, since Charlemagne had had it before he was saluted Emperor.
[26. ]See Withikind, Lib. I. and Meibomius’s Observations there; and the Treaty of Charles and Henry, after the Capitularies of Charles the Bald, and the Remarks upon it of the judicious and learned Jacobus Sirmundus. Wibbo calls that Western Division of the Franks, the Latin, because the Roman Language was there in Use, as it is to this Day, for the People on the other Side the Rhine use the German Tongue. Grotius.
[27. ]This was observed by Priscus, in Excerp. Legat. and by Reginon, ad Ann. DCCCXVI. Charlemagne in his Will, If the Son of any of these three Sons.Grotius.
[28. ]This is certainly Fact, and expressly attested by Wibbo, in his Life of Conradus Salicus.Grotius.
[29. ]Thus the Pope, in his Excommunication of the Emperor Henry IV. names the Kingdom of the Teutonics, and that of Italy, distinctly. See Otho’s Privilege granted to Alderamus, published by Meibomius, after Withikind’s Saxonica; and CrantziusSaxonic, V. in Otho’s Oath, which Gratian has inserted in his sixty-third Distinction, I will in Rome make no Decree or Order about any Thing that belongs to you (the Pope) or the Romans, without your own Advice and Direction.Grotius.
[30. ]As King of Italy, all that had been the Kingdom of Lombardy belongs to him: As Roman Emperor, he has only the City of Rome, the Exarchate of Ravenna, and some few Towns more which lay out of the Lands of the Kingdom of the Lombards; which is but a small Matter.
[31. ]Not so, as appears from what has been said in the foregoing Notes.
[32. ]See Chap. XXII. of this Book, § 13.
[33. ]Just as in the German Empire, the Elector Palatine and the Elector of Saxony do, who are Vicars of the Empire, and have it parted betwixt them. See Serranus, in the Life of Lewis XII. Grotius.
[34. ]So during the Interregnum of Poland, the Archbishop of Gnesna, as Primate, supplies the King’s Place, and sits on the regal Throne. Philip Honorius, In Dissert. de Reg. Pol.Grotius.
[35. ]Our Author’s System being overthrown, this Consequence, and all others of the same Sort, fall of themselves.
[1 ]And consequently, the Right of the Deceased is not extinct; it is continued in the Person of the Heir to whom it devolves. It is a Maxim of the Roman Law, agreeable to the Principles of the Law of Nature, that An Inheritance is nothing but a Succession to the whole Right which the Deceased enjoyed. Digest. Lib. L. De diversis regulis Juris, Leg. LXII.