Front Page Titles (by Subject) BOOK I: Of Nations considered in themselves - The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.)
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BOOK I: Of Nations considered in themselves - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) 
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).
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Of Nations considered in themselves
Of Nations or Sovereign States.
§1. Of the state, and of sovereignty.A nation or a state is, as has been said at the beginning of this work, a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength.
From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a public authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the sovereignty; and he or they who are invested with it are the sovereign.
§2. The authority of the body politic over the members.It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state; but the exercise of that authority may be placed in different hands, according as the society may have ordained.
§3. Of the several kinds of government.If the body of the nation keeps in its own hands the empire or the right to command, it is a popular government, a democracy; if it entrusts it to a certain number of citizens, to a senate, it establishes an aristocratic republic; finally, if it confides the government to a single person, the state becomes a monarchy.
These three kinds of government may be variously combined and modified. We shall not here enter into the particulars; this subject belonging to the public universal law:* for the object of the present work, it is sufficient to establish the general principles necessary for the decision of those disputes that may arise between nations.
§4. What are sovereign states.Every nation that governs itself, under what form soever, without dependence on any foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.
§5. Of states bound by unequal alliance.We ought therefore to account as sovereign states those which have united themselves to another more powerful, by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honour, and to the weaker, more assistance.3
The conditions of those unequal alliances may be infinitely varied. But whatever they are, provided the inferior ally reserve to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state, that keeps up an intercourse with others under the authority of the law of nations.
§6. Or by treaties of protection.Consequently a weak state, which, in order to provide for its safety, places itself under the protection of a more powerful one, and engages, in return, to perform several offices equivalent to that protection, without however divesting itself of the right of government and sovereignty,—that state, I say, does not, on this account, cease to rank among the sovereigns who acknowledge no other law than that of nations.
§7. Of tributary states.There occurs no greater difficulty with respect to tributary states; for though the payment of tribute to a foreign power does in some degree diminish the dignity of those states, from its being a confession of their weakness,—yet it suffers their sovereignty to subsist entire. The custom of paying tribute was formerly very common,—the weaker by that means purchasing of their more powerful neighbour an exemption from oppression, or at that price securing his protection, without ceasing to be sovereigns.
§8. Of feudatory states.The Germanic nations introduced another custom,—that of requiring homage from a state either vanquished, or too weak to make resistance. Sometimes even, a prince has given sovereignties in fee, and sovereigns have voluntarily rendered themselves feudatories to others.
When the homage leaves independency and sovereign authority in the administration of the state, and only means certain duties to the lord of the fee, or even a mere honorary acknowledgment, it does not prevent the state or the feudatory prince being strictly sovereign. The king of Naples pays homage for his kingdom to the pope, and is nevertheless reckoned among the principal sovereigns of Europe.
§9. Of two states subject to the same prince.Two sovereign states may also be subject to the same prince, without any dependence on each other, and each may retain all its rights as a free and sovereign state. The king of Prussia is sovereign prince of Neufchatel in Switzerland, without that principality being in any manner united to his other dominions; so that the people of Neufchatel, in virtue of their franchises, may serve a foreign power at war with the king of Prussia, provided that the war be not on account of that principality.4
§10. Of states forming a federal republic.Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.
Such were formerly the cities of Greece; such are at present5 the Seven United Provinces of the Netherlands, and such the members of the Helvetic body.
§11. Of a state that has passed under the dominion of another.But a people that has passed under the dominion of another is no longer a state, and can no longer avail itself directly of the law of nations. Such were the nations and kingdoms which the Romans rendered subject to their empire; the generality even of those whom they honoured with the name of friends and allies no longer formed real states. Within themselves, they were go-verned by their own laws and magistrates; but without, they were in every thing obliged to follow the orders of Rome; they dared not of themselves either to make war or contract alliances; and could not treat with nations.
§12. The objects of this treatise.The law of nations is the law of sovereigns: free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.
General Principles of the Duties of a Nation towards itself.
§13. A nation ought to act agreeably to its nature.If the rights of a nation spring from its obligations, it is principally from those that relate to itself. It will further appear that its duties towards others depend very much on its duties towards itself, as the former are to be regulated and measured by the latter. As we are then to treat of the obligations and rights of nations,—an attention to order requires that we should begin by establishing what each nation owes to itself.
The general and fundamental rule of our duties towards ourselves is, that every moral being ought to live in a manner conformable to his nature, naturae convenienter vivere. A nation is a being determined by its essential attributes, that has its own nature, and can act in conformity to it. There are then actions of a nation as such, wherein it is concerned in its national character, and which are either suitable or opposite to what constitutes it a nation; so that it is not a matter of indifference whether it performs some of those actions, and omits others. In this respect, the Law of Nature prescribes it certain duties. We shall see, in this first book, what conduct a nation ought to observe, in order that it may not be wanting to itself. But we shall first sketch out a general idea of this subject.
§14. Of the preservation and perfection of a nation.He who no longer exists can have no duties to perform: and a moral being is charged with obligations to himself, only with a view to his perfection and happiness: for to preserve and to perfect his own nature, is the sum of all his duties to himself.
The preservation of a nation consists in the duration of the political association by which it is formed. If a period is put to this association, the nation or state no longer subsists, though the individuals that composed it, still exist.
The perfection of a nation is found in what renders it capable of obtaining the end of civil society; and a nation is in a perfect state, when nothing necessary is wanting to arrive at that end. We know that the perfection of a thing consists, generally, in the perfect agreement of all its constituent parts to tend to the same end. A nation being a multitude of men united together in civil society,—if in that multitude all conspire to attain the end proposed in forming a civil society, the nation is perfect; and it is more or less so, according as it approaches more or less to that perfect agreement. In the same manner its external state will be more or less perfect, according as it concurs with the interior perfection of the nation.
§15. What is the end of civil society.The end or object of civil society is to procure for the citizens whatever they stand in need of, for the necessities, the conveniences, the accommodation of life, and, in general, whatever constitutes happiness,—with the peaceful possession of property, a method of obtaining justice with security, and, finally a mutual defence against all external violence.
It is now easy to form a just idea of the perfection of a state or nation:—every thing in it must conspire to promote the ends we have pointed out.
§16. A nation is under an obligation to preserve itself.In the act of association, by virtue of which a multitude of men form together a state or nation, each individual has entered into engagements with all, to promote the general welfare; and all have entered into engagements with each individual, to facilitate for him the means of supplying his necessities, and to protect and defend him. It is manifest that these reciprocal engagements can no otherwise be fulfilled than by maintaining the political association. The entire nation is then obliged to maintain that association; and as their preservation depends on its continuance, it thence follows that every nation is obliged to perform the duty of self-preservation.
This obligation, so natural to each individual of God’s creation, is not derived to nations immediately from nature, but from the agreement by which civil society is formed: it is therefore not absolute, but conditional,—that is to say, it supposes a human act, to wit, the social compact. And as compacts may be dissolved by common consent of the parties,—if the individuals that compose a nation should unanimously agree to break the link that binds them, it would be lawful for them to do so, and thus to destroy the state or nation; but they would doubtless incur a degree of guilt, if they took this step without just and weighty reasons; for civil societies are approved by the Law of Nature, which recommends them to mankind, as the true means of supplying all their wants, and of effectually advancing towards their own perfection. Moreover civil society is so useful, nay so necessary to all citizens, that it may well be considered as morally impossible for them to consent unanimously to break it without necessity. But what citizens may or ought to do,—what the majority of them may resolve in certain cases of necessity, or of pressing exigency,—are questions that will be treated of elsewhere: they cannot be solidly determined without some principles which we have not yet established. For the present, it is sufficient to have proved, that, in general, as long as the political society subsists, the whole nation is obliged to endeavour to maintain it.
§17. And to preserve its members.If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defence and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfils the conditions.
The body of a nation cannot then abandon a province, a town, or even a single individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety.
§18. A nation has a right to every thing necessary for its preservation.Since then a nation is obliged to preserve itself, it has a right to every thing necessary for its preservation. For the Law of Nature gives us a right to every thing, without which we cannot fulfil our obligation; otherwise it would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it. It will doubtless be here understood, that those means ought not to be unjust in themselves, or such as are absolutely forbidden by the Law of Nature. As it is impossible that it should ever permit the use of such means,—if on a particular occasion no other present themselves for fulfilling a general obligation, the obligation must, in that particular instance, be looked on as impossible, and consequently void.
§19. It ought to avoid every thing that might occasion its destruction.By an evident consequence from what has been said, a nation ought carefully to avoid, as much as possible, whatever might cause its destruction, or that of the state, which is the same thing.
§20. Of its right to every thing that may promote this end.A nation or state has a right to every thing that can help to ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation.
§21. A nation ought to perfect itself and the state.The second general duty of a nation towards itself is to labour at its own perfection and that of its state. It is this double perfection that renders a nation capable of attaining the end of civil society: it would be absurd to unite in society, and yet not endeavour to promote the end of that union.
Here the entire body of a nation, and each individual citizen, are bound by a double obligation, the one immediately proceeding from nature, and the other resulting from their reciprocal engagements. Nature lays an obligation upon each man to labour after his own perfection; and in so doing, he labours after that of civil society, which could not fail to be very flourishing, were it composed of none but good citizens. But the individual finding in a well regulated society the most powerful succours to enable him to fulfil the task which Nature imposes upon him in relation to himself, for becoming better, and consequently more happy,—he is doubtless obliged to contribute all in his power to render that society more perfect.
All the citizens who form a political society, reciprocally en-gage to advance the common welfare, and as far as possible to promote the advantage of each member. Since then the perfection of the society is what enables it to secure equally the happiness of the body and that of the members, the grand object of the engagements and duties of a citizen is to aim at this perfection. This is more particularly the duty of the body collective in all their common deliberations, and in every thing they do as a body.
§22. And to avoid every thing contrary to its perfection.A nation therefore ought to prevent, and carefully to avoid, whatever may hinder its perfection and that of the state, or retard the progress either of the one or the other.
§23. The rights it derives from these obligations.We may then conclude, as we have done above in regard to the preservation of a state (§18), that a nation has a right to every thing without which it cannot attain the perfection of the members and of the state, or prevent and repel whatever is contrary to this double perfection.
§24. Examples.On this subject, the English furnish us an example highly worthy of attention. That illustrious nation distinguishes itself in a glorious manner by its application to every thing that can render the state more flourishing. An admirable constitution there places every citizen in a situation that enables him to contribute to this great end, and every-where diffuses that spirit of genuine patriotism which zealously exerts itself for the public welfare. We there see private citizens form considerable enterprises, in order to promote the glory and welfare of the nation. And while a bad prince would find his hands tied up, a wise and moderate king finds the most powerful aids to give success to his glorious designs. The nobles and the representatives of the people form a link of confidence between the monarch and the nation, and, concurring with him in every thing that tends to promote the public welfare, partly ease him of the burden of government, give stability to his power, and procure him an obedience the more perfect, as it is voluntary. Every good citizen sees that the strength of the state is really the advantage of all, and not that of a single person.6 Happy constitution! which they did not suddenly obtain: it has cost rivers of blood; but they have not purchased it too dear. May luxury, that pest so fatal to the manly and patriotic virtues, that minister of corruption so dangerous to liberty, never overthrow a monument that does so much honour to human nature—a monument capable of teaching kings how glorious it is to rule over a free people!7
There is another nation illustrious by its bravery and its victories.8 Its numerous and valiant nobility, its extensive and fertile dominions, might render it respectable throughout all Europe, and in a short time it might be in a most flourishing situation. But its constitution opposes this; and such is its attachment to that constitution, that there is no room to expect a proper remedy will ever be applied. In vain might a magnanimous king, raised by his virtues above the pursuits of ambition and injustice, form the most salutary designs for promoting the happiness of his people;—in vain might those designs be approved by the more sensible part, by the majority of the nation;—a single deputy, obstinate or corrupted by a foreign power, might put a stop to all, and disconcert the wisest and most necessary measures. From an excessive jealousy of its liberty, that nation has taken such precautions as must necessarily place it out of the power of the king to make any attempts on the liberties of the public. But is it not evident that those precautions exceed the end proposed,— that they tie the hands of the most just and wise prince, and deprive him of the means of securing the public freedom against the enterprises of foreign powers, and of rendering the nation rich and happy? Is it not evident that the nation has deprived itself of the power of acting, and that its councils are exposed to the caprice or treachery of a single member?
§25. A nation ought to know itself.We shall conclude this chapter, with observing, that a nation ought to know itself. Without this knowledge, it cannot make any successful endeavours after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know the progress it has already made, and what further advances it has still to make,—what advantages it possesses, and what defects it labours under, in order to preserve the former, and correct the latter. Without this knowledge, a nation will act at random, and often take the most improper measures. It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skilful,—not perceiving that such or such regulation, such or such practice, though salutary to one state, is often pernicious to another. Every thing ought to be conducted according to its nature. Nations cannot be well governed without such regulations as are suitable to their respective characters; and in order to this, their characters ought to be known.
Of the Constitution of a State, and the Duties and Rights of the Nation in this respect.
We were unable to avoid, in the first chapter, anticipating something of the subject of this.
§26. Of public authority.We have seen already that every political society must necessarily establish a public authority, to regulate their common affairs,—to prescribe to each individual the conduct he ought to observe with a view to the public welfare,—and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.
§27. What is the constitution of a state.The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body-politic,—how and by whom the people are to be governed,— and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.
§28. The nation ought to chuse the best constitution.The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to chuse the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness:—it cannot take too much care in placing these on a solid basis.
§29. Of political, fundamental, and civil laws.The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted,—those, in a word, which together form the constitution of the state, are the fundamental laws.
The civil laws are those that regulate the rights and conduct of the citizens among themselves.
Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws,—in establishing them, I say, with wisdom, in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and, that they may create, if possible, no dissension—that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty, and their rights. It is not here necessary to consider in detail, what that constitution and those laws ought to be:—this discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people, and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.
§30. Of the support of the constitution and obedience to the laws.The constitution and laws of a state are the basis of the public tranquillity, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state, and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires. It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service, to shew from history, how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of man-kind:—impressed thenceforward with this excellent maxim (no less essential in politics than in morals), principiis obsta,9 —they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises.
§31. The rights of a nation with respect to its constitution and government.The consequences of a good or bad constitution being of such importance, and the nation being strictly obliged to procure, as far as possible, the best and most convenient one, it has a right to every thing necessary to enable it to fulfil this obligation (§18). It is then manifest that a nation has an indisputable right to form, maintain, and perfect its constitution,—to regulate at pleasure every thing relating to the government,—and that no person can have a just right to hinder it. Government is established only for the sake of the nation, with a view to its safety and happiness.
§32. It may reform the government.If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government. But observe that I say “the nation”; for I am very far from meaning to authorise a few malcontents or incendiaries to give disturbance to their governors by exciting murmurs and seditions. None but the body of a nation have a right to check those at the helm when they abuse their power. When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretence of reforming it.
§33. And may change the constitution.In virtue of the same principles, it is certain that if the nation is uneasy under its constitution, it has a right to change it.
There can be no difficulty in the case, if the whole nation be unanimously inclined to make this change. But it is asked, what is to be done if the people are divided? In the ordinary manage-ment of the state, the opinion of the majority must pass without dispute for that of the whole nation; otherwise it would be almost impossible for the society ever to take any resolution. It appears then by parity of reasoning, that a nation may change the constitution of the state by a majority of votes; and whenever there is nothing in this change that can be considered as contrary to the act of civil association, or to the intention of those united under it, the whole are bound to conform to the resolution of the majority. But if the question be, to quit a form of government, to which alone it appeared that the people were willing to submit on their entering into the bonds of society,—if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty, and resolved to submit to the authority of a monarch,—those citizens who are more jealous of that privilege, so invaluable to those who have tasted it,—though obliged to suffer the majority to do as they please,—are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.
§34. Of the legislative power, and whether it can change the constitution.Here again a very important question presents itself. It essentially belongs to the society to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens:—this is called the legislative power. The nation may intrust the exercise of it to the prince, or to an assembly; or to that assembly and the prince jointly; who have then a right to make new laws and to repeal old ones. It is asked whether their power extends to the fundamental laws,—whether they may change the constitution of the state? The principles we have laid down lead us to decide with certainty, that the authority of these legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them. For the constitution of the state ought to possess stability: and since that was first established by the nation, which afterwards intrusted certain persons with the legislative power, the fundamental laws are excepted from their commission. It is visible that the society only intended to make provision for having the state constantly furnished with laws suited to particular conjunctures, and, for that purpose, gave the legislature the power of abrogating the ancient civil and political laws that were not fundamental, and of making new ones: but nothing leads us to think that it meant to submit the constitution itself to their will. In short, it is from the constitution that those legislators derive their power: how then can they change it, without destroying the foundation of their own authority? By the fundamental laws of England, the two houses of parliament, in concert with the king, exercise the legislative power: but if the two houses should resolve to suppress themselves, and to invest the king with full and absolute authority, certainly the nation would not suffer it. And who would dare to assert that they would not have a right to oppose it? But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives.
§35. The nation ought not to attempt it without great caution.But in treating here of the change of the constitution, we treat only of the right: the question of expediency belongs to politics. We shall therefore only observe in general, that, great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing how to enjoy it.
§36. It is the judge of all disputes relating to the government.We may conclude from what has been said (§31), that if any disputes arise in a state respecting the fundamental laws, the public administration, or the rights of the different powers of which it is composed, it belongs to the nation alone to judge and determine them conformably to its political constitution.
§37. No foreign power has a right to interfere.In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices, unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury.
Of the Sovereign, his Obligations, and his Rights.
§38. Of the sovereign.The reader cannot expect to find here a long deduction of the rights of sovereignty, and the functions of a prince. These are to be found in treatises on the public law. In this chapter we only propose to shew, in consequence of the grand principles of the law of nations, what a sovereign is, and to give a general idea of his obligations and his rights.
We have said that the sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform, to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in every thing as he pleased according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign authority: it frequently intrusts it to a senate, or to a single person. That senate, or that person, is then the sovereign.
§39. It is solely established for the safety and advantage of society.It is evident that men form a political society, and submit to laws, solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens; and it would be absurd to think that it could change its nature on passing into the hands of a senate or a monarch. Flattery therefore cannot, without rendering itself equally ridiculous and odious, deny that the sovereign is only established for the safety and advantage of society.
A good prince, a wise conductor of society, ought to have his mind impressed with this great truth, that the sovereign power is solely intrusted to him for the safety of the state, and the happiness of all the people,—that he is not permitted to consider himself as the principal object in the administration of affairs, to seek his own satisfaction, or his private advantage,—but that he ought to direct all his views, all his steps, to the greatest advantage of the state and people who have submitted to him.* What a noble sight it is to see a king of England rendering his parliament an account of his principal operations,—assuring that body, the representatives of the nation, that he has no other end in view than the glory of the state, and the happiness of his people,—and affectionately thanking all who concur with him in such salutary views! Certainly a monarch who makes use of this language, and by his conduct proves the sincerity of his professions, is, in the opinion of the wise, the only great man. But in most kingdoms, a criminal flattery has long since caused these maxims to be forgotten. A crowd of servile courtiers easily persuade a proud monarch that the nation was made for him, and not he for the nation. He soon considers the kingdom as a patrimony that is his own property, and his people as a herd of cattle from which he is to derive his wealth, and which he may dispose of to answer his own views, and gratify his passions. Hence those fatal wars undertaken by ambition, restlessness, hatred and pride;—hence those oppressive taxes, whose produce is dissipated by ruinous luxury, or squandered upon mistresses and favourites;—hence, in fine, are important posts given by favour, while public merit is neglected, and every thing that does not immediately interest the prince, is abandoned to ministers and subalterns. Who can, in this unhappy government, discover an authority established for the public welfare?—A great prince will be on his guard even against his virtues. Let us not say, with some writers, that private virtues are not the virtues of kings,—a maxim of superficial politicians, or of those who are very inaccurate in their expressions. Goodness, friendship, gratitude, are still virtues on the throne; and would to God they were always to be found there! but a wise king does not yield an undiscerning obedience to their impulse. He cherishes them, he cultivates them in his private life: but in state-affairs he listens only to justice and sound policy. And why? because he knows that the government was intrusted to him only for the happiness of society, and that therefore he ought not to consult his own pleasure in the use he makes of his power. He tempers his goodness with wisdom. He gives to friendship his domestic and private favours; he distributes posts and employments according to merit,—public rewards to services done to the state. In a word, he uses the public power only with a view to the public welfare. All this is comprehended in that fine saying of Lewis XII.10 “A king of France does not revenge the injuries of a duke of Orleans.”
§40. Of his representative character.A political society is a moral person (prelim. §2) inasmuch as it has an understanding and a will of which it makes use for the conduct of its affairs, and is capable of obligations and rights. When therefore a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority. The sovereign, or conductor of the state, thus becoming the depositary of the obligations and rights relative to government, in him is found the moral person, who, without absolutely ceasing to exist in the nation, acts thenceforwards only in him and by him. Such is the origin of the representative character attributed to the sovereign. He represents the nation in all the affairs in which he may happen to be engaged as a sovereign. It does not debase the dignity of the greatest monarch to attribute to him this representative character; on the contrary, nothing sheds a greater lustre on it, since the monarch thus unites in his own person all the majesty that belongs to the entire body of the nation.
§41. He is intrusted with the obligations of the nation, and invested with its rights.The sovereign, thus clothed with the public authority, with every thing that constitutes the moral personality of the nation, of course becomes bound by the obligations of that nation, and invested with its rights.
§42. His duty with respect to the preservation and perfection of the nation.All that has been said in chap. II. of the general duties of a nation towards itself, particularly regards the sovereign. He is the depositary of the empire, and of the power of commanding whatever conduces to the public welfare; he ought, therefore, as a tender and wise father, and as a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect,—to better its state, and to secure it, as far as possible, against every thing that threatens its safety or its happiness.
§43. His rights in this respect.Hence all the rights which a nation derives from its obligation to preserve and perfect itself, and to improve its state, (see §§18, 20, and 23, of this book)—all these rights, I say, reside in the sovereign, who is therefore indifferently called the conductor of the society, superior, prince, &c.
§44. He ought to know the nation.We have observed above, that every nation ought to know itself. This obligation devolves on the sovereign, since it is he who is to watch over the preservation and perfection of the nation. The duty which the law of nature here imposes on the conductors of nations is of extreme importance, and of considerable extent. They ought exactly to know the whole country subject to their authority,—its qualities, defects, advantages, and situation with regard to the neighbouring states; and they ought to acquire a perfect knowledge of the manners and general inclinations of their people, their virtues, vices, talents, &c. All these branches of knowledge are necessary to enable them to govern properly.
§45. The extent of his power.The prince derives his authority from the nation; he possesses just so much of it as they have thought proper to intrust him with.* If the nation has plainly and simply invested him with the sovereignty without limitation or division, he is supposed to be invested with all the Prerogatives of majesty.prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called regal prerogatives, or the prerogatives of majesty.
§46. The prince ought to respect and support the fundamental laws.But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws shew the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labour for the attainment of happiness: the execution is intrusted to the prince. Let him religiously follow this plan,—let him consider the fundamental laws as inviolable and sacred rules,—and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws:—and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?*
§47. He may change the laws not fundamental.If the prince be invested with the legislative power, he may, according to his wisdom, and when the public advantage requires it, abolish those laws that are not fundamental, and make new ones. See what we have said on this subject in the preceding chapter, §34.
§48. He ought to maintain and observe the existing laws.But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquillity, and the firmest support of the sovereign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws. He ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV.11 one of the most absolute princes that ever reigned in Europe. “Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states.”*
§49. In what sense he is subject to the laws.But it is necessary to explain this submission of the prince to the laws. First he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, “in his private affairs”; for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws. The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.
§50. His person is sacred and inviolable.It is not sufficient that the prince be above the penal laws: even the interest of nations requires that we should go something farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defence. It is impossible even for the most just and wise monarch, not to make mal-contents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people.* Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.†
§51. But the nation may curb a tyrant, and withdraw itself from his obedience.But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank), and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the house of Orange; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right, and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him: the people become free by the act of the sovereign, and can no longer view him but as an usurper who would load them with oppression. This truth is acknowledged by every sensible writer, whose pen is not enslaved by fear, or sold for hire. But some celebrated authors maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him, much less to curb him, and that nought remains for the nation but to suffer and obey with patience. This is founded upon the supposition that such a sovereign is not accountable to any person for the manner in which he governs, and that if the nation might controul his actions and resist him, where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose,—that, if he abuses it, he does ill indeed, and wounds his conscience,—but that his commands are not the less obligatory, as being founded on a lawful right to command,— that the nation, by giving him absolute authority, has reserved no share of it to itself, and has submitted to his discretion, &c. We might be content with answering, that in this light there is not any sovereign who is completely and fully absolute. But in order to remove all these vain subtleties, let us remember the essential end of civil society. Is it not to labour in concert for the common happiness of all? Was it not with this view that every citizen divested himself of his rights, and resigned his liberty? Could the society make such use of its authority, as irrevocably to surrender itself and all its members to the discretion of a cruel tyrant? No, certainly, since it would no longer possess any right itself, if it were disposed to oppress a part of the citizens. When therefore it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin. If he becomes the scourge of the state, he degrades himself; he is no better than a public enemy, against whom the nation may and ought to defend itself; and if he has carried his tyranny to the utmost height, why should even the life of so cruel and perfidious an enemy be spared? Who shall presume to blame the conduct of the Roman senate, that declared Nero an enemy to his country?
But it is of the utmost importance to observe, that this judgment can only be passed by the nation, or by a body which represents it, and that the nation itself can not make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them. It is the person of the sovereign, not that of an unnatural tyrant and a public enemy, that the interest of the nation declares sacred and inviolable. We seldom see such monsters as Nero. In the more common cases, when a prince violates the fundamental laws,— when he attacks the liberties and privileges of his subjects,—or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation,—it may resist him, pass sentence on him, and withdraw from his obedience: but though this may be done, still his person should be spared, and that for the welfare of the state.* It is above a century since the English took up arms against their king, and obliged him to descend from the throne. A set of able enterprising men, spurred on by ambition, took advantage of the terrible ferment, caused by fanaticism and party spirit; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself discovered its former blindness. If, to this day, it still annually makes a solemn atonement, it is not only, from the opinion that the unfortunate Charles I. did not deserve so cruel a fate, but, doubtless, from a conviction that the very safety of the state requires the person of the sovereign to be held sacred and inviolable, and that the whole nation ought to render this maxim venerable, by paying respect to it when the care of its own preservation will permit.
One word more on the distinction that is endeavoured to be made here in favour of an absolute sovereign. Whoever has well weighed the force of the indisputable principles we have established, will be convinced, that, when it is necessary to resist a prince who has become a tyrant, the right of the people is still the same, whether that prince was made absolute by the laws, or was not; because that right is derived from what is the object of all political society,—the safety of the nation, which is the supreme law.* But if the distinction of which we are treating, is of no moment with respect to the right, it can be of none in practice, with respect to expediency. As it is very difficult to oppose an absolute prince, and it cannot be done without raising great disturbances in the state, and the most violent and dangerous commotions, it ought to be attempted only in cases of extremity, when the public misery is raised to such a height, that the people may say with Tacitus, miseram pacem vel bello bene mutari,12 —that it is better to expose themselves to a civil war, than to endure them. But if the prince’s authority be limited,—if it in some respects depends on a senate or a parliament that represents the nation,—there are means of resisting and curbing him, without exposing the state to violent shocks. When mild and innocent remedies can be applied to the evil, there can be no reason for waiting until it becomes extreme.
§52. Arbitration between the king and his subjects.But however limited a prince’s authority may be, he is commonly very jealous of it; it seldom happens that he patiently suffers resistance, and peaceably submits to the judgment of his people. Can he want support, while he is the distributer of favours? We see too many base and ambitious souls, for whom the state of a rich and decorated slave has more charms than that of a modest and virtuous citizen. It is therefore always difficult for a nation to resist a prince and pronounce sentence on his conduct, without exposing the state to dangerous troubles, and to shocks capable of overturning it. This has sometimes occasioned a compromise between the prince and the subjects, to submit to the decision of a friendly power all the disputes that might arise between them. Thus the kings of Denmark, by solemn treaties, formerly referred to those of Sweden the differences that might arise between them and their senate: and this the kings of Sweden have also done with regard to those of Denmark. The princes and states of West Friesland, and the burgesses of Embden, have in the same manner constituted the republic of the United Provinces the judge of their differences. The princes and the city of Neufchatel established, in 1406, the canton of Berne perpetual judge and arbitrator of their disputes. Thus also, according to the spirit of the Helvetic confederacy, the entire body takes cognisance of the disturbances that arise in any of the confederated states, though each of them is truly sovereign and independent.
§53. The obedience which subjects owe to a sovereign.As soon as a nation acknowledges a prince for its lawful sovereign, all the citizens owe him a faithful obedience. He can neither govern the state, nor perform what the nation expects from him, if he be not punctually obeyed. Subjects then have no right, in doubtful cases, to examine the wisdom or justice of their sovereign’s commands; this examination belongs to the prince: his subjects ought to suppose (if there be a possibility of supposing it) that all his orders are just and salutary: he alone is accountable for the evil that may result from them.
§54. In what cases they may resist him.Nevertheless this ought not to be entirely a blind obedience. No engagement can oblige or even authorise a man to violate the law of nature. All authors who have any regard to conscience or decency, agree that no one ought to obey such commands as are evidently contrary to that sacred law. Those governors of places who bravely refused to execute the barbarous orders of Charles IX.13 on the memorable day of St. Bartholomew,14 have been universally praised; and the court did not dare to punish them, at least openly. “Sire,” said the brave Orte, governor of Bayonne, in his letter, “I have communicated your majesty’s command to your faithful inhabitants and warriors in the garrison: and I have found there only good citizens and brave soldiers; but not a single executioner: wherefore both they and I most humbly entreat your majesty to be pleased to employ our hands and our lives in things that are possible, however hazardous they may be; and we will exert ourselves to the last drop of our blood in the execution of them.”* The count de Tende, Charny, and others, replied to those who brought them the orders of the court, “that they had too great a respect for the king, to believe that such barbarous orders came from him.”
It is more difficult to determine in what cases a subject may not only refuse to obey, but even resist a sovereign, and oppose his violence by force. When a sovereign does injury to any one, he acts without any real authority; but we ought not thence to conclude hastily that the subject may resist him. The nature of sovereignty, and the welfare of the state, will not permit citizens to oppose a prince whenever his commands appear to them unjust or prejudicial. This would be falling back into the state of nature, and rendering government impossible. A subject ought patiently to suffer from the prince, doubtful wrongs, and wrongs that are supportable,—the former, because whoever has submitted to the decision of a judge, is no longer capable of deciding his own pretensions; and as to those that are supportable, they ought to be sacrificed to the peace and safety of the state, on account of the great advantages obtained by living in society. It is presumed, as matter of course, that every citizen has tacitly engaged to observe this moderation; because, without it, society could not exist. But when the injuries are manifest and atrocious,— when a prince, without any apparent reason, attempts to deprive us of life, or of those things, the loss of which would render life irksome,— who can dispute our right to resist him? Self-preservation is not only a natural right, but an obligation imposed by nature, and no man can entirely and absolutely renounce it. And though he might give it up, can he be considered as having done it by his political engagements, since he entered into society only to establish his own safety upon a more solid basis? The welfare of society does not require such a sacrifice; and, as Barbeyrac well observes in his notes on Grotius, “If the public interest requires, that those who obey should suffer some inconvenience, it is no less for the public interest that those who command, should be afraid of driving their patience to the utmost extremity.”* The prince who violates all laws,—who no longer observes any measures,—and who would in his transports of fury take away the life of an innocent person,— divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy, against whom his people are allowed to defend themselves. The person of the sovereign is sacred and inviolable: but he who, after having lost all the sentiments of a sovereign, divests himself even of the appearances and exterior conduct of a monarch, degrades himself: he no longer retains the sacred character of a sovereign, and cannot retain the prerogatives attached to that exalted rank. However, if this prince is not a monster,—if he is furious only against us in particular, and from the effects of a sudden transport or a violent passion, and is supportable to the rest of the nation,—the respect we ought to pay to the tranquillity of the state is such, and the respect due to sovereign majesty so powerful, that we are strictly obliged to seek every other means of preservation, rather than to put his person in danger. Every one knows the example set by David: he fled,—he kept himself concealed, to secure himself from Saul’s fury,— and more than once spared the life of his persecutor.15 When the reason of Charles VI.16 of France was suddenly disordered by a fatal accident, he in his fury killed several of those who surrounded him: none of them thought of securing his own life at the expense of that of the king; they only endeavoured to disarm and secure him. They did their duty like men of honour and faithful subjects, in exposing their lives, to save that of this unfortunate monarch: such a sacrifice is due to the state and to sovereign majesty: furious from the derangement of his faculties, Charles was not guilty; he might recover his health, and again become a good king.
§55. Of ministers.What has been said is sufficient for the intention of this work: the reader may see these questions treated more at large in many books that are well known. We shall conclude this subject with an important observation. A sovereign is undoubtedly allowed to employ ministers to ease him in the painful offices of government; but he ought never to surrender his authority to them. When a nation chuses a conductor, it is not with a view that he should deliver up his charge into other hands. Ministers ought only to be instruments in the hands of the prince; he ought constantly to direct them, and continually endeavour to know whether they act according to his intentions. If the imbecillity of age, or any infirmity, render him incapable of governing, a regent ought to be nominated, according to the laws of the state: but when once the sovereign is capable of holding the reins, let him insist on being served, but never suffer himself to be superseded. The last kings of France of the first race surrendered the government and authority to the mayors of the palace: thus becoming mere phantoms, they justly lost the title and honours of a dignity of which they had abandoned the functions. The nation has every thing to gain in crowning an all-powerful minister; for he will improve that soil as his own inheritance, which he plundered whilst he only reaped precarious advantages from it.
Of States Elective, Successive or Hereditary, and of those called Patrimonial.
§56. Of elective states.We have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to chuse the person by whom it is to be governed. If it confers the sovereignty on him for his own person only, reserving to itself the right of chusing a successor after the sovereign’s death, the state is elective. As soon as the prince is elected according to the laws, he enters into the possession of all the prerogatives which those laws annex to his dignity.
§57. Whether elective kings are real sovereigns.It has been debated, whether elective kings and princes are real sovereigns. But he who lays any stress on this circumstance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see chap. I.), and secondly, what is the extent of the power it has intrusted to the prince. Whenever the chief of an independent state really represents his nation, he ought to be considered as a true sovereign (§40), even though his authority should be limited in several respects.
§58. Of successive and hereditary states.When a nation would avoid the troubles which seldom fail to accompany the election of a sovereign, it makes its choice for a long succession of years, by establishing the The origin of the right of succession.right of succession, or by rendering the crown hereditary in a family, according to the order and rules that appear most agreeable to that nation. The name of an Hereditary State or Kingdom is given to that where the successor is appointed by the same law that regulates the successions of individuals. The Successive Kingdom is that where a person succeeds according to a particular fundamental law of the state. Thus the lineal succession, and of males alone, is established in France.
§59. Other origins of this right.The right of succession is not always the primitive establishment of a nation; it may have been introduced by the concession of another sovereign, and even by usurpation. But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful, though the source be vicious. It rests then on the foundation we have already pointed out,—a foundation that alone is lawful and incapable of being shaken, and to which we must ever revert.
§60. Other sources which still amount to the same thing.The same right, according to Grotius and the generality of writers, may be derived from other sources, as conquest, or the right of a proprietor, who, being master of a country, should invite inhabitants to settle there, and give them lands, on condition of their acknowledging him and his heirs for their sovereigns. But as it is absurd to suppose that a society of men can place themselves in subjection otherwise than with a view to their own safety and welfare, and still more that they can bind their posterity on any other footing, it ultimately amounts to the same thing; and it must still be said that the succession is established by the express will or the tacit consent of the nation, for the welfare and safety of the state.
§61. A nation may change the order of the succession.It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety. If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi suprema lex,—the safety of the people is the supreme law; and this law is agreeable to the strictest justice,—the people having united in society only with a view to their safety and greater advantage.*
This pretended proprietory right attributed to princes is a chimera produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state.* The consequence is evident: if the nation plainly perceives that the heir of her prince would be a pernicious sovereign, she has a right to exclude him.
The authors whom we oppose, grant this right to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks,—a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice.
§62. Of renunciations.A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince. These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne. Thus the laws of England have for ever rejected every Roman Catholic. “Thus a law of Russia, made at the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood.”*
Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. They have largely expatiated on the rights of children born or to be born, of the transmission of those rights, &c. But they ought to have considered the succession, less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred: they are fundamental laws:—those not authorised by the state can only be obligatory on the prince who made them. They cannot injure his posterity; and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.†
§63. The order of succession ought commonly to be kept.In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendent ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it, only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. “What a door would this open for usurpers or malcontents!—It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done; since by this means no more is required than his being the king’s son, and his being actually alive,—which can admit of no dispute: but on the other hand there is no rule fixed to judge of the capacity or incapacity to reign.”* Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it.
§64. Of regents.These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practised in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king’s name.
§65. Indivisibility of sovereignties.The principles we have just established respecting the successive or hereditary right, manifestly shew that a prince has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one, and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use: but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety.
But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason France was divisible under the two first races.* But being entirely consolidated under the third, it has since been considered as a single kingdom,—it has become indivisible,—and a fundamental law has declared it so. That law, wisely providing for the preservation and splendour of the kingdom, irrevocably unites to the crown all the acquisitions of its kings.
§66. Who are to decide disputes respecting the succession to a sovereignty.The same principles will also furnish us with the solution of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and two or three competitors lay claim to the crown,—it is asked, Who shall be the judge of their pretensions? Some learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought either to come to an amicable compromise,—enter into articles among themselves,—chuse arbitrators,—have recourse even to the drawing of lots,—or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philosophers,† what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns none so much as the nation,—that relates to a power established only with a view to the happiness of the people,—in a quarrel that is to decide for ever their dearest interests, and their very safety,— are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered up to the butcher, or restored to the care of their shepherd?
But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. Even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise,— princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties, and most precious rights.
Grotius and Puffendorff differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so: we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors’ rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, either by itself, or by its representatives, till the true sovereign be known. “The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair,17 terminated the famous dispute between Philip de Valois and the king of England (Edward III.),18 and that those states, though subject to him in whose favour they granted the decision, were nevertheless the judges of the dispute.”*
Guicciardini, book XII.19 also shews that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand,20 grandfather of Ferdinand21 the husband of Isabella queen of Castile,22 in preference to the other relations of Martin king of Arragon,23 who asserted that the kingdom belonged to them.†
In the kingdom of Jerusalem also, it was the states that decided the disputes of those who made pretensions to it; as is proved by several examples in the foreign political history.‡
The states of the principality of Neufchatel have often, in the form of a juridical sentence, pronounced on the succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favour of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht.
§67. That the right to the succession ought not to depend on the judgment of a foreign power.The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted) that no descendent of the sovereign can succeed to the crown, unless he be the issue of a marriage that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns, and the legitimacy of their birth.
If education had not the power of familiarising the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases be so much his own master, as to contract a marriage necessary to the safety of the state. Jane, the only daughter of Henry IV. king of Castile,24 found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king’s favourite; and notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry’s sister, and wife to Ferdinand heir of Arragon. The grandees of Jane’s party had provided her a powerful resource, by negotiating a marriage between her and Alphonsus king of Portugal:25 but as that prince was Jane’s uncle, it was necessary to obtain a dispensation from the pope; and Pius II.26 who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Every thing succeeded with Isabella, and the unfortunate Jane took the veil, in order to secure, by this heroic sacrifice, the peace of Castile.*
If the prince proceeds and marries notwithstanding the pope’s refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?
A great emperor, Lewis of Bavaria,27 boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find* two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his life-time, nor imitated by his successors.
§68. Of states called patrimonial.Finally, there are states whose sovereign may chuse his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shewn (§61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I.28 em-peror of Russia, nominated his wife29 to succeed him, though he had children.
§69. Every true sovereignty is unalienable.But when a prince chuses his successor, or when he cedes the crown to another,—properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted— he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shewn (§60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state.
I know that many authors, and particularly Grotius,* give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a people resisting a similar bequest of their sovereign, and whose resistance had been generally condemned as unjust and rebellious. Had Peter I. who nominated his wife to succeed him, attempted to subject his empire to the grand signor, or to some other neighbouring power, can we imagine that the Russians would have suffered it, or that their resistance would have passed for a revolt? We do not find in Europe any great state that is reputed alienable. If some petty principalities have been considered as such, it is because they were not true sovereignties. They were fiefs of the em-pire, enjoying a greater or lesser degree of liberty: their masters made a traffic of the rights they possessed over those territories: but they could not withdraw them from a dependence on the empire.
Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people.† Neither are we to presume that he possesses a right to nominate his successor or surrender the sceptre to other hands,—a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people.
§70. Duty of a prince who is empowered to nominate his successor.If the power of nominating his successor is intrusted to the sovereign, he ought to have no other view in his choice, but the advantage and safety of the state. He himself was established only for this end (§39); the liberty of transferring his power to another could then be granted to him only with the same view. It would be absurd to consider it as a prerogative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter’s, a nation could not adopt a wiser plan in order to ensure to itself a good government, than to intrust the prince, by a fundamental law, with the power of appointing his successor. This would be a much more certain method than the order of birth. The Roman emperors who had no male children appointed a successor by adoption. To this custom Rome was indebted for a series of sovereigns unequalled in history,—Nerva, Trajan, Adrian, Antoninus, Marcus Aurelius,—what princes! Does the right of birth often place such on the throne?
§71. He must have at least a tacit ratification.We may go still farther, and boldly assert, that, as the safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect,—at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appointment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor.
Principal Objects of a good Government; and first to provide for the Necessities of the Nation.
§72. The object of society points out the duties of the sovereign.After these observations on the constitution of the state, let us now proceed to the principal objects of a good government. We have seen above (§§41 and 42) that the prince, on his being invested with the sovereign authority, is charged with the duties of the nation in relation to government. In treating of the principal objects of a wise administration, we at once shew the duties of a nation towards itself, and those of the sovereign towards his people.
A wise conductor of the state will find in the objects of civil society the general rule and indication of his duties. The society is established with the view of procuring, to those who are its members, the necessaries, conveniences, and even pleasures of life, and, in general, every thing necessary to their happiness,—of enabling each individual peaceably to enjoy his own property, and to obtain justice with safety and certainty,—and, finally, of defending themselves in a body against all external violence (§15). He ought to procure plenty.The nation, or its conductor, should first apply to the business of providing for all the wants of the people, and producing a happy plenty of all the necessaries of life, with its conveniences, and innocent and laudable enjoyments. As an easy life without luxury contributes to the happiness of men, it likewise enables them to labour with greater safety and success after their own perfection, which is their grand and principal duty, and one of the ends they ought to have in view when they unite in society.
§73.To take care that there be a sufficient number of workmen.To succeed in procuring this abundance of every thing, it is necessary to take care that there be a sufficient number of able workmen in every useful or necessary profession. An attentive application on the part of government, wise regulations, and assistance properly granted, will produce this effect, without using constraint, which is always fatal to industry.
§74. To prevent the emigration of those that are useful.Those workmen that are useful ought to be retained in the state; to succeed in retaining them, the public authority has certainly a right to use constraint, if necessary. Every citizen owes his personal services to his country; and a mechanic, in particular, who has been reared, educated, and instructed in its bosom, cannot lawfully leave it, and carry to a foreign land that industry which he acquired at home, unless his country has no occasion for him, or he cannot there obtain the just fruit of his labour and abilities. Employment must then be procured for him; and if, while able to obtain a decent livelihood in his own country, he would without reason abandon it, the state has a right to detain him. But a very moderate use ought to be made of this right, and only in important or necessary cases. Liberty is the soul of abilities and industry: frequently a mechanic or an artist, after having long travelled abroad, is attracted home to his native soil by a natural affection, and returns more expert and better qualified to render his country useful services. If certain extraordinary cases be excepted, it is best in this affair to practise the mild methods of protection, encouragement, &c. and to leave the rest to that natural love felt by all men for the places of their birth.
§75. Emissaries who entice them away.As to those emissaries who come into a country to entice away useful subjects, the sovereign has a right to punish them severely, and has just cause of complaint against the power by whom they are employed.
In another place, we shall treat more particularly of the general question, whether a citizen be permitted to quit the society of which he is a member. The particular reasons concerning useful workmen are sufficient here.
§76. Labour and industry must be encouraged.The state ought to encourage labour, to animate industry, to excite abilities, to propose honours, rewards, privileges, and so to order matters that every one may live by his industry. In this particular, England deserves to be held up as an example. The parliament incessantly attends to these important affairs, in which neither care nor expense is spared. And do we not even see a society of excellent citizens formed with this view, and devoting considerable sums to this use? Premiums are also distributed in Ireland to the mechanics who most distinguish themselves in their profession. Can such a state fail of being powerful and happy?
Of the Cultivation of the Soil.
§77. The utility of tillage.Of all the arts, tillage, or agriculture, is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase; it forms the surest resource, and the most solid fund of riches and commerce, for a nation that enjoys a happy climate.
§78. Regulations necessary in this respect—This object then deserves the utmost attention of the government. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible. He ought not to allow either communities or private persons to acquire large tracts of land, and leave them uncultivated.For the distribution of land. Those rights of common, which deprive the proprietor of the free liberty of disposing of his land,—which will not allow him to inclose and cultivate it in the most advantageous manner,— those rights, I say, are inimical to the welfare of the state, and ought to be suppressed, or reduced to just bounds. Notwithstanding the introduction of private property among the citizens, the nation has still a right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible.
§79. For the protection of husbandmen.The government ought carefully to avoid every thing capable of discouraging the husbandman, or of diverting him from the labours of agriculture. Those taxes,—those excessive and ill-proportioned impositions, the burthen of which falls almost entirely on the cultivators,— and the oppressions they suffer from the officers who levy them,— deprive the unhappy peasant of the means of cultivating the earth, and depopulate the country. Spain is the most fertile and the worst cultivated country in Europe. The church there possesses too much land; and the contractors for the royal magazines, being authorised to purchase at a low price all the corn they find in the possession of a peasant, above what is necessary for the subsistence of himself and his family, so greatly discourage the husbandman, that he sows no more corn than is barely necessary for the support of his own household. Hence the frequent scarcity in a country capable of feeding its neighbours.
§80. Husbandry ought to be placed in an honourable light.Another abuse injurious to agriculture is the contempt cast upon the husbandman. The tradesmen in cities,—even the most servile mechanics,—the idle citizens,—consider him that cultivates the earth with a disdainful eye: they humble and discourage him: they dare to despise a profession that feeds the human race,—the natural employment of man. A little insignificant haberdasher, a tailor, places far beneath him the beloved employment of the first consuls and dictators of Rome! China has wisely prevented this abuse: agriculture is there held in honour; and to preserve this happy mode of thinking, the emperor himself, followed by his whole court, annually, on a solemn day, sets his hand to the plough, and sows a small piece of land. Hence China is the best cultivated country in the world: it feeds an immense multitude of inhabitants who at first sight appear to the traveller too numerous for the space they occupy.
§81. The cultivation of the soil, a natural obligation.The cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind. The whole earth is destined to feed its inhabitants; but this it would be incapable of doing, if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries, or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries. Those nations (such as the ancient Germans, and some modern Tartars), who inhabit fertile countries, but disdain to cultivate their lands, and chuse rather to live by plunder, are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, chuse to live only by hunting, and their flocks. This might, doubtless, be allowed in the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the human race is so greatly multiplied, it could not subsist if all nations were disposed to live in that manner. Those who still pursue this idle mode of life, usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have therefore no reason to complain, if other nations, more industrious, and too closely confined, come to take possession of a part of those lands. Thus, though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them.
§82. Of public granaries.The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful, for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman’s hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all: for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest; which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad; but it will be sent at a higher and fairer price.
§83. Of home and foreign trade.It is commerce that enables individuals and whole nations to procure those commodities which they stand in need of, but cannot find at home. Commerce is divided into home and foreign trade. The former is that carried on in the state between the several inhabitants; the latter is carried on with foreign nations.
§84. Utility of the home trade.The home trade of a nation is of great use; it furnishes all the citizens with the means of procuring whatever they want, as either necessary, useful, or agreeable: it causes a circulation of money, excites industry, animates labour, and, by affording subsistence to a great number of people, contributes to increase the population and power of the state.
§85. Utility of foreign trade.The same reasons shew the use of foreign trade, which is moreover attended with these two advantages:—1. By trading with foreigners, a nation procures such things as neither nature nor art can furnish in the country it occupies. And secondly, if its foreign trade be properly directed, it increases the riches of the nation, and may become the source of wealth and plenty. Of this the example of the Carthaginians among the ancients, and that of the English and Dutch among the moderns, afford remarkable proofs. Carthage, by her riches, counter-balanced the fortune, courage, and greatness of Rome. Holland has amassed immense sums in her marshes; a company of her merchants possesses whole kingdoms in the East, and the governor of Batavia exercises command over the monarchs of India. To what a degree of power and glory is England arrived! Formerly her warlike princes and inhabitants made glorious conquests which they afterwards lost by those reverses of fortune so frequent in war: at present, it is chiefly commerce that places in her hand the balance of Europe.
§86. Obligation to cultivate the home trade.Nations are obliged to cultivate the home trade,—first, because it is clearly demonstrated from the law of nature, that mankind ought mutually to assist each other, and, as far as in their power, contribute to the perfection and happiness of their fellow-creatures: whence arises, after the introduction of private property, the obligation to resign to others, at a fair price, those things which they have occasion for, and which we do not destine for our own use. Secondly, society being established with the view that each may procure whatever things are necessary to his own perfection and happiness,—and a home trade being the means of obtaining them,—the obligations to carry on and improve this trade are derived from the very compact on which the society was formed. Finally, being advantageous to the nation, it is a duty the people owe to themselves, to make this commerce flourish.
§87. Obligation to carry on foreign trade.For the same reason, drawn from the welfare of the state, and also to procure for the citizens every thing they want, a nation is obliged to promote and carry on a foreign trade. Of all the modern states, England is most distinguished in this respect. The parliament have their eyes constantly fixed on this important object; they effectually protect the navigation of the merchants, and, by considerable bounties, favour the exportation of superfluous commodities and merchandises. In a very sensible production,* may be seen the valuable advantages that kingdom has derived from such judicious regulations.
§88. Foundation of the laws of commerce.Let us now see what are the laws of nature and the rights of nations in respect to the commerce they carry on with each other. Men are obliged mutually to assist each other as much as possible, and to contribute to the perfection and happiness of their fellow-creatures (Prelim. §10); whence it follows, as we have said above (§86), that, after the introduction of private property, it became a duty to sell to each other at a fair price what the possessor himself has no occasion for, and what is necessary to others; because, since that introduction of private property, no one can by any other means procure the different things that may be necessary or useful to him, and calculated to render life pleasant and agreeable. Right of buying.Now, since right springs from obligation (Prelim. §3), the obligation which we have just established gives every man the right of procuring the things he wants, by purchasing them at a reasonable price from those who have themselves no occasion for them.
We have also seen (Prelim. §5) that men could not free themselves from the authority of the laws of nature by uniting in civil society, and that the whole nation remains equally subject to those laws in its national capacity; so that the natural and necessary law of nations is no other than the law of nature properly applied to nations or sovereign states (Prelim. §6): from all which it follows, that a nation has a right to procure, at an equitable price, whatever articles it wants, by purchasing them of other nations who have no occasion for them. This is the foundation of the right of commerce between different nations, and, in particular, of the right of buying.
§89. Right of selling.We cannot apply the same reasoning to the right of selling such things as we want to part with. Every man and every nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another,—the law of nature gives to no person whatsoever any kind of right to sell what belongs to him to another who does not wish to buy it; neither has any nation the right of selling her commodities or merchandise to a people who are unwilling to have them.
§90. Prohibition of foreign merchandises.Every state has consequently a right to prohibit the entrance of foreign merchandises; and the nations that are affected by such prohibition have no right to complain of it, as if they had been refused an office of humanity. Their complaints would be ridiculous, since their only ground of complaint would be, that a profit is refused to them by that nation, who does not chuse they should make it at her expense. It is, however, true, that if a nation was very certain that the prohibition of her merchandises was not founded on any reason drawn from the welfare of the state that prohibited them, she would have cause to consider this conduct as a mark of ill-will shewn in this instance, and to complain of it on that footing. But it would be very difficult for the excluded nation to judge with certainty that the state had no solid or apparent reason for making such a prohibition.
§91. Nature of the right of buying.By the manner in which we have shewn a nation’s right to buy of another what it wants, it is easy to see that this right is not one of those called perfect, and that are accompanied with a right to use constraint. Let us now distinctly explain the nature of a right which may give room for disputes of a very serious nature. You have a right to buy of others such things as you want, and of which they themselves have no need; you make application to me: I am not obliged to sell them to you, if I myself have any occasion for them. In virtue of the natural liberty which belongs to all men, it is I who am to judge whether I have occasion for them myself, or can conveniently sell them to you; and you have no right to determine whether I judge well or ill, because you have no authority over me. If I, improperly, and without any good reason, refuse to sell you at a fair price what you want, I offend against my duty: you may complain of this; but you must submit to it; and you cannot attempt to force me, without violating my natural right, and doing me an injury. The right of buying the things we want is then only an imperfect right, like that of a poor man to receive alms of the rich man; if the latter refuses to bestow it, the poor man may justly complain; but he has no right to take it by force.
If it be asked, what a nation has a right to do in case of extreme necessity,—this question will be answered in its proper place in the following book, Chap. IX.
§92. Every nation is to chuse how far it will engage in commerce.Since then a nation cannot have a natural right to sell her merchandises to another that is unwilling to purchase them,—since she has only an imperfect right to buy what she wants of others,—since it belongs only to these last to judge whether it be proper for them to sell or not— and, finally, since commerce consists in mutually buying and selling all sorts of commodities,—it is evident that it depends on the will of any nation to carry on commerce with another, or to let it alone. If she be willing to allow this to one, it depends on the nation to permit it under such conditions as she shall think proper. For in permitting another nation to trade with her, she grants that other a right; and every one is at liberty to affix what conditions he pleases to a right which he grants of his own accord.
§93. How a nation acquires a perfect right to a foreign trade.Men and sovereign states may, by their promises, enter into a perfect obligation with respect to each other, in things where nature has imposed only an imperfect obligation. A nation, not having naturally a perfect right to carry on a commerce with another, may procure it by an agreement or treaty. This right is then acquired only by treaties, and relates to that branch of the law of nations termed conventional (Prelim. §24). The treaty that gives the right of commerce, is the measure and rule of that right.
§94. Of the simple permission of commerce.A simple permission to carry on commerce with a nation gives no perfect right to that commerce. For if I merely and simply permit you to do any thing, I do not give you any right to do it afterwards in spite of me:—you may make use of my condescension as long as it lasts; but nothing prevents me from changing my will. As then every nation has a right to chuse whether she will or will not trade with another, and on what conditions she is willing to do it (§92),—if one nation has for a time permitted another to come and trade in the country, she is at liberty, whenever she thinks proper, to prohibit that commerce,—to restrain it,—to subject it to certain regulations; and the people who before carried it on cannot complain of injustice.
Let us only observe, that nations, as well as individuals, are obliged to trade together for the common benefit of the human race, because mankind stand in need of each other’s assistance (Prelim. §§10, 11, and Book I. §88): still however, each nation remains at liberty to consider, in particular cases, whether it be convenient for her to encourage, or permit commerce; and as our duty to ourselves is paramount to our duty to others,—if one nation finds herself in such circumstances, that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it. This the Chinese have done for a long time together. But, again, it is only for very serious and important reasons that her duty to herself should dictate such a reserve; otherwise, she could not refuse to comply with the general duties of humanity.
§95. Whether the laws relating to commerce are subject to prescription.We have seen what are the rights that nations derive from nature with regard to commerce, and how they may acquire others by treaties:—let us now examine whether they can found any on long custom. To determine this question in a solid manner, it is necessary first to observe, that there are rights which consist in a simple power: they are called in Latin, jura merae facultatis, rights of mere ability. They are such in their own nature, that he who possesses them may use them or not, as he thinks proper,—being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights, are acts of mere free will, that may be done or not done according to pleasure. It is manifest that rights of this kind cannot be lost by prescription on account of their not being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it. This right is then imprescriptible, unless I have been forbidden or hindered from making use of it, and have obeyed with sufficient marks of consent. Let us suppose, for instance, that I am entirely at liberty to grind my corn at any mill I please, and that during a very considerable time, a century if you please, I have made use of the same mill:—as I have done in this respect what I thought proper, it is not to be presumed, from this long-continued use of the same mill, that I meant to deprive myself of the right of grinding at any other; and consequently, my right cannot be lost by prescription. But now suppose, that, on my resolving to make use of another mill, the owner of the former opposes it, and announces to me a prohibition;—if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it.—Let us apply these principles.—Since it depends on the will of each nation to carry on commerce with another, or not to carry it on, and to regulate the manner in which it chuses to carry it on (§92), the right of commerce is evidently a right of mere ability (jus merae facultatis), a simple power,—and consequently is imprescriptible. Thus, although two nations have traded together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others:—they both preserve the double right of prohibiting the entrance of foreign merchandise, and of selling their own wherever people are willing to buy them. Although the English have from time immemorial been accustomed to get wine from Portugal, they are not on that account obliged to continue the trade, and have not lost the liberty of purchasing their wines elsewhere. Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty.30
§96. Imprescriptibility of rights founded on treaty.What has been just said may be applied to the rights of commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, she does not lose her right, though a great number of years are suffered to elapse without its being used; because this right is a simple power, jus merae facultatis, which she is at liberty to use or not, whenever she pleases.
Certain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with the view of procuring a species of merchandise of which she stands in need,—and if the nation which obtained the right of selling, neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege,—it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling, would lose it, because she had not fulfilled the tacit condition.
§97. Of monopolies, and trading companies, with exclusive privileges.Commerce is a common benefit to a nation; and all her members have an equal right to it. Monopoly therefore, in general, is contrary to the rights of the citizens. However, this rule has its exceptions, suggested even by the interest of the nation; and a wise government may, in certain cases, justly establish monopolies. There are commercial enterprises that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well-supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen, in different countries, those powerful companies that carry on commerce with the East. When the subjects of the United Provinces established themselves in the Indies on the ruin of their enemies the Portuguese, individual merchants would not have dared to think of such an arduous enterprise; and the state itself, wholly taken up with the defence of its liberty against the Spaniards, had not the means of attempting it.
It is also certain beyond all doubt, that, whenever any individual offers, on condition of obtaining an exclusive privilege, to establish a particular branch of commerce or manufacture which the nation has not the means of carrying on, the sovereign may grant him such privilege.
But whenever any branch of commerce may be left open to the whole nation, without producing any inconvenience or being less advantageous to the state, a restriction of that commerce to a few privileged individuals is a violation of the rights of all the other citizens. And even when such a commerce requires considerable expenses to maintain forts, men of war, &c. this being a national affair, the state may defray those expenses, and, as an encouragement to industry, leave the profits of the trade to the merchants. This is sometimes done in England.
§98. Balance of trade, and attention of government in this respect.The conductor of a nation ought to take particular care to encourage the commerce that is advantageous to his people, and to suppress or lay restraints upon that which is to their disadvantage. Gold and silver having become the common standard of the value of all the articles of commerce, the trade that brings into the state a greater quantity of these metals than it carries out, is an advantageous trade; and, on the contrary, that is a ruinous one, which causes more gold and silver to be sent abroad, than it brings home. This is what is called the balance of trade. The ability of those who have the direction of it, consists in making that balance turn in favour of the nation.
§99. Import duties.Of all the measures that a wise government may take with this view, we shall only touch here on import duties. When the conductors of a state, without absolutely forcing trade, are nevertheless desirous of diverting it into other channels, they lay such duties on the merchandises they would discourage, as will prevent their consumption. Thus French wines are charged with very high duties in England, while the duties on those of Portugal are very moderate,—because England sells few of her productions to France, while she sells large quantities to Portugal. There is nothing in this conduct that is not very wise and extremely just; and France has no reason to complain of it,—every nation having an undoubted right to make what conditions she thinks proper, with respect to receiving foreign merchandises, and being even at liberty to refuse taking them at all.
Of the Care of the Public Ways of Communication, and the Right of Toll.
§100. Utility of high-ways, canals, &c.The utility of high-ways, bridges, canals, and, in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and to obtain the preference; an attraction is held out to foreigners, whose merchandises are carried through the country, and diffuse wealth in all the places through which they pass. France and Holland feel the happy consequences of this from daily experience.
§101. Duty of government in this respect.One of the principal things that ought to employ the attention of the government with respect to the welfare of the public in general, and of trade in particular, must then relate to the high-ways, canals, &c. in which nothing ought to be neglected to render them safe and commodious. France is one of those states where this duty to the public is discharged with the greatest attention and magnificence. Numerous patroles every where watch over the safety of travellers: magnificent roads, bridges, and canals, facilitate the communication between one province and another:—Lewis XIV. joined the two seas by a work worthy of the Romans.
§102. Its rights in this respect.The whole nation ought, doubtless, to contribute to such useful undertakings. When therefore the laying out and repairing of high-ways, bridges, and canals, would be too great a burthen on the ordinary revenues of the state, the government may oblige the people to labour at them, or to contribute to the expense. The peasants, in some of the provinces of France, have been heard to murmur at the labours imposed upon them for the construction of roads: but experience had no sooner made them sensible of their true interest, than they blessed the authors of the undertaking.
§103. Foundation of the right of toll.The construction and preservation of all these works being attended with great expense, the nation may very justly oblige all those to contribute to them, who receive advantage from their use: this is the legitimate origin of the right of toll. It is just, that a traveller, and especially a merchant, who receives advantage from a bridge, a canal, or a road, in his own passage, and in the more commodious conveyance of his merchandise, should help to defray the expense of these useful establishments, by a moderate contribution: and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular.
§104. Abuse of this right.But a law so just in its origin frequently degenerates into great abuses. There are countries where no care is taken of the high-ways, and where nevertheless considerable tolls are exacted. A lord of a manor, who happens to possess a stripe of land terminating on a river, there establishes a toll, though he is not at a farthing’s expense in keeping up the navigation of the river, and rendering it convenient. This is a manifest extortion, and an infringment of the natural rights of mankind. For the division of lands, and their becoming private property, could never deprive any man of the right of passage, when not the least injury is done to the person through whose territory he passes. Every man inherits this right from nature, and cannot justly be forced to purchase it.
But the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce. People do not, however, submit without difficulty, except in the case of those tolls which are established by ancient usage: and the imposition of new ones is often a source of disputes. The Swiss formerly made war on the dukes of Milan, on account of some oppressions of this nature. This right of tolls is also further abused, when the passenger is obliged to contribute too much, and what bears no proportion to the expense of preserving these public passages.
At present, to avoid all difficulty and oppression, nations settle these points by treaties.
Of Money and Exchange.
§105. Establishment of money.In the first ages after the introduction of private property, people exchanged their superfluous commodities and effects for those they wanted. Afterwards gold and silver became the common standard of the value of all things: and to prevent the people from being cheated, the mode was introduced of stamping pieces of gold and silver in the name of the state, with the figure of the prince, or some other impression, as the seal and pledge of their value. This institution is of great use and infinite convenience: it is easy to see how much it facilitates commerce.—Nations or sovereigns cannot therefore bestow too much attention on an affair of such importance.
§106. Duty of the nation or prince with respect to the coin.The impression on the coin becoming the seal of its standard and weight, a moment’s reflection will convince us that the coinage of money ought not to be left indiscriminately free to every individual: for by that means, frauds would become too common;—the coin would soon lose the public confidence; and this would destroy a most useful institution. Hence money is coined by the authority and in the name of the state or prince, who are its surety: they ought therefore to have a quantity of it coined sufficient to answer the necessities of the country, and to take care that it be good, that is to say, that its intrinsic value bear a just proportion to its extrinsic or numerary value.
It is true, that, in a pressing necessity, the state would have a right to order the citizens to receive the coin at a price superior to its real value: but as foreigners will not receive it at that price, the nation gains nothing by this proceeding: it is only a temporary palliative for the evil, without effecting a radical cure. This excess of value, added in an arbitrary manner to the coin, is a real debt which the sovereign contracts with individuals: and in strict justice, this crisis of affairs being over, that money ought to be called in at the expense of the state, and paid for in other specie, according to the natural standard; otherwise this kind of burthen, laid on in the hour of necessity, would fall solely on those who received this arbitrary money in payment: which would be unjust. Besides, experience has shewn that such a resource is destructive to trade, by destroying the confidence both of foreigners and citizens,—raising in proportion the price of every thing,—and inducing every one to lock up or send abroad the good old specie; whereby a temporary stop is put to the circulation of money. So that it is the duty of every nation and of every sovereign to abstain, as much as possible, from so dangerous an experiment, and rather to have recourse to extraordinary taxes and contributions to support the pressing exigencies of the state.*
§107. Their rights in this respect.Since the state is surety for the goodness of the money and its currency, the public authority alone has the right of coining it. Those who counterfeit it, violate the rights of the sovereign, whether they make it of the same standard and value or not. These are called false-coiners, and their crime is justly considered as one of the most heinous nature. For if they coin base money, they rob both the public and the prince; and if they coin good, they usurp the prerogative of the sovereign. They will never be inclined to coin good money, unless there be a profit on the coinage: and in this case they rob the state of a profit which exclusively belongs to it. In both cases, they do an injury to the sovereign; for the public faith being surety for the money, the sovereign alone has a right to have it coined. For this reason the right of coining is placed among the prerogatives of majesty, and Bodinus relates,* that Sigismund Augustus, king of Poland,31 having granted this privilege to the duke of Prussia, in the year 1543, the states of the country passed a decree in which it was asserted that the king could not grant that privilege, it being inseparable from the crown. The same author observes, that, although many lords and bishops of France had formerly the privilege of coining money, it was still considered as coined by the king’s authority: and the kings of France at last withdrew all those privileges, on account of their being often abused.
§108. How one nation may injure another in the article of coin.From the principles just laid down, it is easy to conclude, that if one nation counterfeits the money of another, or if she allows and protects false-coiners who presume to do it, she does that nation an injury. But commonly criminals of this class find no protection any-where,—all princes being equally interested in exterminating them.
§109. Of exchange, and the laws of commerce.There is another custom more modern, and of no less use to commerce than the establishment of coin,—namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other, at a very trifling expense, and, if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom, by good laws, in which every merchant, whether citizen or foreigner, may find security. In general, it is equally the interest and the duty of every nation to have wise and equitable commercial laws established in the country.
Second Object of a good Government,—to procure the true Happiness of the Nation.
§110. A nation ought to labour after its own happiness.Let us continue to lay open the principal objects of a good government. What we have said in the five preceding chapters relates to the care of providing for the necessities of the people, and procuring plenty in the state: this is a point of necessity; but it is not sufficient for the happiness of a nation. Experience shews that a people may be unhappy in the midst of all earthly enjoyments, and in the possession of the greatest riches. Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where centre all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. §5). It is then the duty of those who form this public will, or of those who represent it—the rulers of the nation—to labour for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power.
§111. Instruction.To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found,—that is, in their own perfection,—and to teach them the means of obtaining it. The sovereign cannot then take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they chuse to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind, on the other hand they are more fully sensible than their neighbours, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority:—incapable of being slaves, they are faithful subjects.
§112. Education of youth.The first impressions made on the mind are of the utmost importance for the remainder of life. In the tender years of infancy and youth, the human mind and heart easily receive the seeds of good or evil. Hence the education of youth is one of the most important affairs that deserve the attention of the government. It ought not to be entirely left to fathers. The most certain way of forming good citizens is to found good establishments for public education, to provide them with able masters,—direct them with prudence,—and pursue such mild and suitable measures, that the citizens will not neglect to take advantage of them. How admirable was the education of the Romans, in the flourishing ages of their republic, and how admirably was it calculated to form great men! The young men put themselves under the patronage of some illustrious person; they frequented his house, accompanied him wherever he went, and equally improved by his instructions and example: their very sports and amusements were exercises proper to form soldiers. The same practice prevailed at Sparta; and this was one of the wisest institutions of the incomparable Lycurgus. That legislator and philosopher entered into the most minute details respecting the education of youth,* being persuaded that on that depended the prosperity and glory of his republic.
§113. Arts and sciences.Who can doubt that the sovereign,—the whole nation,—ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder,—literature and the polite arts enlighten the mind, and soften the manners: and if study does not always inspire the love of virtue, it is because it sometimes, and even too often, unhappily meets with an incorrigibly vicious heart. The nation and its conductors ought then to protect men of learning and great artists, and to call forth talents by honours and rewards. Let the friends of barbarism declaim against the sciences and polite arts;—let us, without deigning to answer their vain reasonings, content ourselves with appealing to experience. Let us compare England, France, Holland, and several towns of Switzerland and Germany, to the many regions that lie buried in ignorance, and see where we can find the greater number of honest men and good citizens. It would be a gross error to oppose against us the example of Sparta, and that of ancient Rome. They, it is true, neglected curious speculations, and those branches of knowledge and art that were purely subservient to pleasure and amusement: but the solid and practical sciences,—morality, jurisprudence, politics, and war, were cultivated by them, especially by the Romans, with a degree of attention superior to what we bestow on them.
In the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them. The immortal Peter I. thought that without their assistance he could not entirely civilise Russia, and render it flourishing. In England, learning and abilities lead to honour and riches. Newton was honoured, protected, and rewarded while living, and after his death his tomb was placed among those of kings. France also, in this respect, deserves particular praise: to the munificence of her kings she is indebted for several establishments that are no less useful than glorious. The Royal Academy of Sciences diffuses on every side the light of knowledge, and the desire of instruction. Louis XV. furnished the means of sending to search, under the equator and the polar circle, for the proof of an important truth; and we at present know what was before only believed on the strength of Newton’s calculations. Happy will that kingdom be, if the too general taste of the age does not make the people neglect solid knowledge, to give themselves up to that which is merely amusing, and if those who fear the light do not succeed in extinguishing the blaze of science!
§114. Freedom of philosophical discussion.I speak of the freedom of philosophical discussion, which is the soul of the republic of letters. What can genius produce when trammelled by fear? Can the greatest man that ever lived contribute much towards enlightening the minds of his fellow-citizens, if he finds himself constantly exposed to the cavils of captious and ignorant bigots,—if he is obliged to be continually on his guard, to avoid being accused by innuendo-mongers of indirectly attacking the received opinions? I know that liberty has its proper bounds,—that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion. But yet great care should be taken not to extinguish a light that may afford the state the most valuable advantages. Few men know how to keep a just medium; and the office of literary censor ought to be intrusted to none but those who are at once both prudent and enlightened. Why should they search in a book for what the author does not appear to have intended to put into it? and when a writer’s thoughts and discourses are wholly employed on philosophy, ought a malicious adversary to be listened to, who would set him at variance with religion? So far from disturbing a philosopher on account of his opinions, the magistrate ought to chastise those who publicly charge him with impiety, when in his writings he shews respect to the religion of the state. The Romans seem to have been formed to give examples to the universe: that wise people carefully supported the worship and religious ceremonies established by law, and left the field open to the speculations of philosophers. Cicero—a senator, a consul, an augur—ridicules superstition, attacks it, and demolishes it in his philosophical writings; and, in so doing, he thought he was only promoting his own happiness and that of his fellow-citizens: but he observes that “to destroy superstition is not destroying religion; for (says he) it becomes a wise man to respect the institutions and religious ceremonies of his ancestors: and it is sufficient to contemplate the beauty of the world, and the admirable order of the celestial bodies, in order to be convinced of the existence of an eternal and all-perfect being, who is entitled to the veneration of the human race.”* And in his Dialogues on the Nature of the Gods, he introduces Cotta the academic, who was high-priest, attacking with great freedom the opinions of the stoics, and declaring that he should always be ready to defend the established religion from which he saw the republic had derived great advantages; that neither the learned nor the ignorant should make him abandon it: he then says to his adversary, “These are my thoughts, both as pontiff and as Cotta. But do you, as a philosopher, bring me over to your opinion by the strength of your arguments: for a philosopher ought to prove to me the truth of the religion he would have me embrace, whereas I ought in this respect to believe our forefathers, even without proof.”*
Let us add experience to these examples and authorities. Never did a philosopher occasion disturbances in the state, or in religion, by his opinions: they would make no noise among the people, nor ever offend the weak, if malice or intemperate zeal did not take pains to discover a pretended venom lurking in them. It is by him who endeavours to place the opinions of a great man in opposition to the doctrines and worship established by law, that the state is disturbed, and religion brought into danger.
§115. Love of virtue, and abhorrence of vice to be excited.To instruct the nation, is not sufficient:—in order to conduct it to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice. Those who are deeply versed in the study of morality are convinced that virtue is the true and only path that leads to happiness; so that its maxims are but the art of living happily; and he must be very ignorant of politics, who does not perceive how much more capable a virtuous nation will be, than any other, of forming a state that shall be at once happy, tranquil, flourishing, solid, respected by its neighbours, and formidable to its enemies. The interest of the prince must then concur with his duty and the dictates of his conscience, in engaging him to watch attentively over an affair of such importance. Let him employ all his authority in order to encourage virtue, and suppress vice: let the public establishments be all directed to this end: let his own conduct, his example, and the distribution of favours, posts, and dignities, all have the same tendency. Let him extend his attention even to the private life of the citizens, and banish from the state whatever is only calculated to corrupt the manners of the people. It belongs to politics to teach him in detail the different means of attaining this desirable end,—to shew him those he should prefer, and those he ought to avoid, on account of the dangers that might attend the execution, and the abuses that might be made of them. We shall here only observe, in general, that vice may be suppressed by chastisements, but that mild and gentle methods alone can elevate men to the dignity of virtue: it may be inspired, but it cannot be commanded.
§116. The nation may hence discover the intention of its rulers.It is an incontestable truth, that the virtues of the citizens constitute the most happy dispositions that can be desired by a just and wise government. Here then is an infallible criterion, by which the nation may judge of the intentions of those who govern it. If they endeavour to render the great and the common people virtuous, their views are pure and upright; and you may rest assured that they solely aim at the great end of government, the happiness and glory of the nation. But if they corrupt the morals of the people, spread a taste for luxury, effeminacy, a rage for licentious pleasures,—if they stimulate the higher orders to a ruinous pomp and extravagance,—beware, citizens! beware of those corruptors! they only aim at purchasing slaves in order to exercise over them an arbitrary sway.
If a prince has the smallest share of moderation, he will never have recourse to these odious methods. Satisfied with his superior station and the power given him by the laws, he proposes to reign with glory and safety; he loves his people, and desires to render them happy. But his ministers are in general impatient of resistance, and cannot brook the slightest oppo-sition:—if he surrenders to them his authority, they are more haughty and intractable than their master: they feel not for his people the same love that he feels: “let the nation be corrupted (say they) provided it do but obey.” They dread the courage and firmness inspired by virtue, and know that the distributor of favours rules as he pleases over men whose hearts are accessible to avarice. Thus a wretch who exercises the most infamous of all professions, perverts the inclinations of a young victim of her odious traffic; she prompts her to luxury and epicurism, she inspires her with voluptuousness and vanity, in order the more certainly to betray her to a rich seducer. This base and unworthy creature is sometimes chastised by the magistrate; but the minister, who is infinitely more guilty, wallows in wealth, and is invested with honour and authority. Posterity, however, will do him justice, and detest the corruptor of a respectable nation.
§117. The state, or the public person, ought to perfect its understanding and will.If governors endeavoured to fulfill the obligations which the law of nature lays upon them with respect to themselves, and in their character of conductors of the state, they would be incapable of ever giving into the odious abuse just mentioned. Hitherto we have considered the obligation a nation is under to acquire knowledge and virtue, or to perfect its understanding and will;—that obligation, I say, we have considered in relation to the individuals that compose a nation: it also belongs in a proper and singular manner to the conductors of the state. A nation, while she acts in common, or in a body, is a moral person (Prelim. §2) that has an understanding and will of her own, and is not less obliged than any individual to obey the laws of nature (Book I. §5), and to improve her faculties (Book I. §21). That moral person resides in those who are invested with the public authority, and represent the entire nation. Whether this be the common council of the nation, an aristocratic body, or a monarch, this conductor and representative of the nation, this sovereign, of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign.
And as this obligation is imposed with a view to the public welfare, he ought to direct all his knowledge, and all his virtues, to the safety of the state, the end of civil society.
§118. And to direct the knowledge and virtues of the citizens to the welfare of the society.He ought even to direct, as much as possible, all the abilities, the knowledge, and the virtues of the citizens to this great end; so that they may not only be useful to the individuals who possess them, but also to the state. This is one of the great secrets in the art of reigning. The state will be powerful and happy, if the good qualities of the subject, passing beyond the narrow sphere of private virtues, become civic virtues. This happy disposition raised the Roman republic to the highest pitch of power and glory.
§119. Love for their country.The grand secret of giving to the virtues of individuals a turn so advantageous to the state, is to inspire the citizens with an ardent love for their country. It will then naturally follow, that each will endeavour to serve the state, and to apply all his powers and abilities to the advantage and glory of the nation. This love of their country is natural to all men. The good and wise author of nature has taken care to bind them, by a kind of instinct, to the places where they received their first breath, and they love their own nation, as a thing with which they are intimately connected. But it often happens that some causes unhappily weaken or destroy this natural impression. The injustice or the severity of the government too easily effaces it from the hearts of the subjects: can self-love attach an individual to the affairs of a country where every thing is done with a view to a single person?—far from it:—we see, on the contrary, that free nations are passionately interested in the glory and the happiness of their country. Let us call to mind the citizens of Rome in the happy days of the republic, and consider, in modern times, the English and the Swiss.
§120. In individuals.The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country. This sensation ought also to flow from the engagements he has entered into with society. He has promised to procure its safety and advantage as far as in his power: and how can he serve it with zeal, fidelity, or courage, if he has not a real love for it?
§121. In the nation or state itself, and in the sovereign.The nation in a body ought doubtless to love itself, and desire its own happiness as a nation. The sensation is too natural to admit of any failure in this obligation: but this duty relates more particularly to the conductor, the sovereign, who represents the nation, and acts in its name. He ought to love it as what is most dear to him, to prefer it to every thing, for it is the only lawful object of his care, and of his actions, in every thing he does by virtue of the public authority. The monster who does not love his people is no better than an odious usurper, and deserves, no doubt, to be hurled from the throne. There is no kingdom where the statue of Codrus32 ought not to be placed before the palace of the sovereign. That magnanimous king of Athens sacrificed his life for his people.* That great prince, and Louis XII.33 are illustrious models of the tender love a sovereign owes to his subjects.
§122. Definition of the term country.The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the state of which one is a member: in this sense we have used it in the preceding sections; and it to be thus understood in the law of nations.
In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place, where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to chuse another country,—that is, to become a member of another society; so, when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts.
§123. How shameful and criminal to injure our country.If every man is obliged to entertain a sincere love for his country, and to promote its welfare as far as in his power, it is a shameful and detestable crime to injure that very country. He who becomes guilty of it, violates his most sacred engagements, and sinks into base ingratitude: he dishonours himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens, and treats as enemies those who had a right to expect his assistance and services. We see traitors to their country only among those men who are solely sensible to base interest, who only seek their own immediate advantage, and whose hearts are incapable of every sentiment of affection for others. They are therefore justly detested by mankind in general, as the most infamous of all villains.
§124. The glory of good citizens.On the contrary, those generous citizens are loaded with honour and praise, who, not content with barely avoiding a failure in duty to their country, make noble efforts in her favour, and are capable of making her the greatest sacrifices. Examples.The names of Brutus,34 Curtius,35 and the two Decii,36 will live as long as that of Rome. The Swiss will never forget Arnold de Winkelried,37 that hero, whose exploit would have deserved to be transmitted to posterity by the pen of a Livy. He truly devoted his life for his country’s sake: but he devoted it as a general, as an undaunted warrior, not as a superstitious visionary. That nobleman, who was of the country of Underwald, seeing at the battle of Sempach38 that his countrymen could not break through the Austrians, because the latter, armed cap-a-pie, had dismounted, and, forming a close battalion, presented a front covered with steel, and bristling with pikes and lances,—formed the generous design of sacrificing himself for his country. “My friends,” said he to the Swiss, who began to be dispirited, “I will this day give my life to procure you the victory: I only recommend to you my family: follow me, and act in consequence of what you see me do.” At these words he ranged them in that form which the Romans called cuneus, and placing himself in the point of the triangle, marched to the centre of the enemy; when, embracing between his arms as many of the enemy’s pikes as he could compass, he threw himself to the ground, thus opening for his followers a passage to penetrate into the midst of this thick battalion. The Austrians, once broken, were conquered, as the weight of their armour then became fatal to them, and the Swiss obtained a complete victory.*
Of Piety and Religion.
§125. Of piety.Piety and religion have an essential influence on the happiness of a nation, and, from their importance, deserve a particular chapter. Nothing is so proper as piety to strengthen virtue, and give it its due extent. By the word piety, I mean a disposition of soul that leads us to direct all our actions towards the Deity, and to endeavour to please him in every thing we do. To the practice of this virtue all mankind are indispensably obliged: it is the purest source of their felicity; and those who unite in civil society, are under still greater obligations to practise it. A nation ought then to be pious. The superiors intrusted with the public affairs should constantly endeavour to deserve the approbation of their divine master; and whatever they do in the name of the state, ought to be regulated by this grand view. The care of forming pious dispositions in all the people should be constantly one of the principal objects of their vigilance, and from this the state will derive very great advantages. A serious attention to merit in all our actions the approbation of an infinitely wise Being, cannot fail of producing excellent citizens. Enlightened piety in the people is the firmest support of a lawful authority; and, in the sovereign’s heart, it is the pledge of the people’s safety, and excites their confidence. Ye lords of the earth, who acknowledge no superior here below, what security can we have for the purity of your intentions, if we do not conceive you to be deeply impressed with respect for the common Father and Lord of men, and animated with a desire to please him?
§126. It ought to be attended with knowledge.We have already insinuated that piety ought to be attended with knowledge. In vain would we propose to please God, if we know not the means of doing it. But what a deluge of evils arises when men heated by so powerful a motive are prompted to take methods that are equally false and pernicious! A blind piety only produces superstitious bigots, fanatics and persecutors, a thousand times more dangerous and destructive to society than libertines are. There have appeared barbarous tyrants who have talked of nothing but the glory of God, while they crushed the people, and trampled under foot the most sacred laws of nature. It was from a refinement of piety, that the anabaptists of the sixteenth century refused all obedience to the powers of the earth. James Clement and Ravaillac,* those execrable parricides, thought themselves animated by the most sublime devotion.
§127. Of religion internal and external.Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honour of the supreme Being. So far as it is seated in the heart, it is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state.
§128. Rights of individuals.Every man is obliged to endeavour to obtain just ideas of God, to know his laws, his views with respect to his creatures, and the end for which they were created. Man, doubtless, owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honour God in all his actions, and shew, by the most suitable means, the sentiments that fill his mind. Liberty of conscience.This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded; and what kind of worship must that be, which is produced by force! Worship consists in certain actions performed with an immediate view to the honour of God; there can then be no worship proper for any man, which he does not believe suitable to that end. The obligation of sincerely endeavouring to know God, of serving him, and adoring him from the bottom of the heart, being imposed on man by his very nature,—it is impossible that, by his engagements with society, he should have exonerated himself from that duty, or deprived himself of the liberty which is absolutely necessary for the performance of it. It must then be concluded, that liberty of conscience is a natural and inviolable right. It is a disgrace to human nature, that a truth of this kind should stand in need of proof.
§129. Public establishment of religion.But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society. The establishment of re-ligion by law, and its public exercise, are Duties and rights of the nation.matters of state, and are necessarily under the jurisdiction of the political authority. If all men are bound to serve God, the entire nation, in her national capacity, is doubtless obliged to serve and honour him (Prelim. §5). And as this important duty is to be discharged by the nation in whatever manner she judges best,—to the nation it belongs to determine what religion she will follow, and what public worship she thinks proper to establish.
§130. When there is as yet no established religion.If there be as yet no religion established by public authority, the nation ought to use the utmost care, in order to know and establish the best. That which shall have the approbation of the majority shall be received, and publicly established by law; by which means it will become the religion of the state. But if a considerable part of the nation is obstinately bent upon following another, it is asked—What does the law of nations require in such a case? Let us first remember that liberty of conscience is a natural right, and that there must be no constraint in this respect. There remain then but two methods to take,—either to permit this party of the citizens to exercise the religion they chuse to profess,— or to separate them from the society,—leaving them their property, and their share of the country that belonged to the nation in common,— and thus to form two new states instead of one. The latter method appears by no means proper:—it would weaken the nation, and thus would be inconsistent with that regard which she owes to her own preservation. It is therefore of more advantage to adopt the former method, and thus to establish two religions in the state. But if these religions are too incompatible,—if there be reason to fear that they will produce divisions among the citizens, and disorder in public affairs,—there is a third method, a wise medium between the two former, of which the Swiss have furnished examples. The cantons of Glaris and Appenzel were, in the sixteenth century, each divided into two parts: the one preserved the Romish religion, and the other embraced the reformation: each part has a distinct government of its own for domestic affairs; but on foreign affairs they unite, and form but one and the same republic, one and the same canton.
Finally, if the number of citizens who would profess a different religion from that established by the nation be inconsiderable,—and if for good and just reasons it be thought improper to allow the exercise of several religions in the state,—those citizens have a right to sell their lands, to retire with their families, and take all their property with them. For their engagements to society, and their submission to the public authority, can never oblige them to violate their consciences. If the society will not allow me to do that to which I think myself bound by an indispensable obligation, it is obliged to allow me permission to depart.
§131. When there is an established religion.When the choice of a religion is already made, and there is one established by law, the nation ought to protect and support that religion, and preserve it as an establishment of the greatest importance,— without, however, blindly rejecting the changes that may be proposed to render it more pure and useful: for we ought, in all things, to aim at perfection (§21). But as all innovations, in this case, are full of danger, and can seldom be produced without disturbances, they ought not to be attempted upon slight grounds, without necessity, or very important reasons. It solely belongs to the society, the state, the entire nation, to determine the necessity or propriety of those changes; and no private individual has a right to attempt them by his own authority, nor consequently to preach to the people a new doctrine. Let him offer his sentiments to the conductors of the nation, and submit to the orders he receives from them.
But if a new religion spreads, and becomes fixed in the minds of the people, as it commonly happens, independently of the public authority, and without any deliberation in common,—it will be then necessary to adopt the mode of reasoning we followed in the preceding section on the case of chusing a religion,—to pay attention to the number of those who follow the new opinions,—to remember that no earthly power has authority over the consciences of men,—and to unite the maxims of sound policy with those of justice and equity.
§132. Duties and rights of the sovereign with regard to religion.We have thus given a brief compendium of the duties and rights of a nation with regard to religion. Let us now come to those of the sovereign. These cannot be exactly the same as those of the nation which the sovereign represents. The nature of the subject opposes it; for in religion nobody can give up his liberty. To give a clear and distinct view of those rights and duties of the prince, and to establish them on a solid basis, it is necessary here to refer to the distinction we have made in the two preceding sections:—if there is question of establishing a religion in a state that has not yet received one, the sovereign may doubtless favour that which to him appears the true or the best religion,—may have it announced to the people, and, by mild and suitable means, endeavour to establish it:—he is even bound to do this, because he is obliged to attend to every thing that concerns the happiness of the nation. But in this he has no right to use authority and constraint. Since there was no religion established in the society when he received his authority, the people gave him no power in this respect; the support of the laws relating to religion is no part of his office, and does not belong to the authority with which they intrusted him. Numa was the founder of the religion of the ancient Romans: but he persuaded the people to receive it. If he had been able to command in that instance, he would not have had recourse to the revelations of the nymph Egeria.39 Though the sovereign cannot exert any authority in order to establish a religion where there is none, he is authorised and even obliged to employ all his power to hinder the introduction of one which he judges pernicious to morality and dangerous to the state. For he ought to preserve his people from every thing that may be injurious to them; and so far is a new doctrine from being an exception to this rule, that it is one of its most important objects. We shall see, in the following sections, what are the duties and rights of the prince in regard to the religion publicly established.
§133. Where there is an established religion.The prince, or the conductor, to whom the nation has intrusted the care of the government, and the exercise of the sovereign power, is obliged to watch over the preservation of the received religion, the worship established by law,—and has a right to restrain those who attempt to destroy or disturb it. But to acquit himself of this duty in a manner equally just and wise, he ought never to lose sight of the character in which he is called to act, and the reason of his being invested with it. Religion is of extreme importance to the peace and welfare of society; and the prince is obliged to have an eye to every thing in which the state is interested. This is all that calls him to interfere in religion, or to protect and defend it. It is therefore upon this footing only that he can interfere: consequently he ought to exert his authority against those alone whose conduct in religious matters is prejudicial or dangerous to the state; but he must not extend it to pretended crimes against God, the punishment of which exclusively belongs to the Sovereign Judge, the Searcher of hearts. Let us remember that religion is no farther an affair of state, than as it is exterior and publicly established: that of the heart can only depend on the conscience. The prince has no right to punish any persons but those that disturb society; and it would be very unjust in him to inflict pains and penalties on any person whatsoever for his private opinions, when that person neither takes pains to divulge them, nor to obtain followers. It is a principle of fanaticism, a source of evils, and of the most notorious injustice, to imagine that frail mortals ought to take up the cause of God, maintain his glory by acts of violence, and avenge him on his enemies. Let us only give to sovereigns, said a great statesman and an excellent citizen* —let us give them, for the common advantage, the power of punishing whatever is injurious to charity in society. It appertains not to human justice to become the avenger of what concerns the cause of God.† Cicero, who was as able and as great in state affairs as in philosophy and eloquence, thought like the duke of Sully. In the laws he proposes relating to religion, he says, on the subject of piety and interior religion, “if any one transgresses, God will revenge it”: but he declares the crime capital that should be committed against the religious ceremonies established for public affairs, and in which the whole state is concerned.‡ The wise Romans were very far from persecuting a man for his creed; they only required that people should not disturb the public order.
§134. Objects of his care, and the means he ought to employ.The creeds or opinions of individuals, their sentiments with respect to the Deity,—in a word, interior religion—should, like piety, be the object of the prince’s attention: he should neglect no means of enabling his subjects to discover the truth, and of inspiring them with good sentiments; but he should employ for this purpose only mild and paternal methods.* Here he cannot command (§128). It is in external religion and its public exercise that his authority may be employed. His task is to preserve it, and to prevent the disorders and troubles it may occasion. To preserve religion, he ought to maintain it in the purity of its institution, to take care that it be faithfully observed in all its public acts and ceremonies, and punish those who dare to attack it openly. But he can require nothing by force except silence, and ought never to oblige any person to bear a part in external ceremonies:—by constraint, he would only produce disturbances or hypocrisy.
A diversity of opinions and worship has often produced disorders and fatal dissensions in a state: and for this reason, many will allow but one and the same religion. A prudent and equitable sovereign will, in particular conjunctures, see whether it be proper to tolerate or forbid the exercise of several different kinds of worship.
§135. Of toleration.But, in general, we may boldly affirm that the most certain and equitable means of preventing the disorders that may be occasioned by difference of religion, is an universal toleration of all religions which contain no tenets that are dangerous either to morality or to the state. Let interested priests declaim!—they would not trample under foot the laws of humanity, and those of God himself, to make their doctrine triumph, if it were not the foundation on which are erected their opulence, luxury, and power. Do but crush the spirit of persecution,—punish severely whoever shall dare to disturb others on account of their creed,—and you will see all sects living in peace in their common country, and ambitious of producing good citizens. Holland and the states of the king of Prussia furnish a proof of this: Calvinists, Lutherans, Catholics, Pietists, Socinians, Jews, all live there in peace, because they are equally protected by the sovereign; and none are punished, but the disturbers of the tranquillity of others.
§136. What the prince ought to do when the nation is resolved to change its religion.If, in spite of the prince’s care to preserve the established religion, the entire nation, or the greater part of it, should be disgusted with it, and desire to have it changed, the sovereign cannot do violence to his people, nor constrain them in an affair of this nature. The public religion was established for the safety and advantage of the nation: and, besides its proving inefficacious when it ceases to influence the heart, the sovereign has here no other authority than that which results from the trust reposed in him by the people,—and they have only committed to him that of protecting whatever religion they think proper to profess.
§137. Difference of religion does not deprive a prince of his crown.But at the same time it is very just that the prince should have the liberty of continuing in the profession of his own religion, without losing his crown. Provided that he protect the religion of the state, this is all that can be required of him. In general, a difference of religion can never make any prince forfeit his claims to the sovereignty, unless a fundamental law ordain it otherwise. The pagan Romans did not cease to obey Constantine,40 when he embraced Christianity; nor did the Christians revolt from Julian,41 after he had quitted it.*
§138. Duties and rights of the sovereign reconciled with those of the subjects.We have established liberty of conscience for individuals (§128). However, we have also shewn that the sovereign has a right, and is even under an obligation, to protect and support the religion of the state, and not suffer any person to attempt to corrupt or destroy it,—that he may even, according to circumstances, permit only one kind of public worship throughout the whole country. Let us reconcile those different duties and rights, between which it may be thought that there is some contradiction:—let us, if possible, omit no material argument on so important and delicate a subject.
If the sovereign will allow the public exercise of only one and the same religion, let him oblige no body to do any thing contrary to his conscience; let no subject be forced to bear a part in a worship which he disapproves, or to profess a religion which he believes to be false; but let the subject on his part rest content with avoiding the guilt of a shameful hypocrisy; let him, according to the light of his own knowledge, serve God in private, and in his own house,—persuaded that providence does not call upon him for public worship, since it has placed him in such circumstances, that he cannot perform it without creating disturbances in the state. God would have us obey our sovereign, and avoid every thing that may be pernicious to society. These are immutable precepts of the law of nature: the precept that enjoins public worship is conditional, and dependent on the effects which that worship may produce. Interior worship is necessary in its own nature; and we ought to confine ourselves to it, in all cases in which it is most convenient. Public worship is appointed for the edification of men in glorifying God: but it counteracts that end, and ceases to be laudable, on those occasions when it only produces disturbances, and gives offence. If any one believes it absolutely necessary, let him quit the country where he is not allowed to perform it according to the dictates of his own conscience,—let him go and join those who profess the same religion with himself.
§139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.The prodigious influence of religion on the peace and welfare of society incontrovertibly proves that the conductor of the state ought to have the inspection of what relates to it, and an authority over the ministers who teach it. The end of society and of civil government necessarily requires that he who exercises the supreme power should be invested with all the rights without which he could not exercise it in a manner the most advantageous to the state. These are the prerogatives of majesty (§45), of which no sovereign can divest himself, without the express consent of the nation. The inspection of the affairs of religion, and the authority over its ministers, constitute therefore one of the most important of those prerogatives, since, without this power, the sovereign would never be able to prevent the disturbances that religion might occasion in the state, nor to employ that powerful engine in promoting the welfare and safety of the society. It would be certainly very strange that a multitude of men who united themselves in society for their common advantage, that each might in tranquillity labour to supply his necessities, promote his own perfection and happiness, and live as becomes a rational being,—it would be very strange, I say, that such a society should not have a right to follow their own judgment in an affair of the utmost importance,—to determine what they think most suitable with regard to religion,—and to take care that nothing dangerous or hurtful be mixed with it. Who shall dare to dispute that an independent nation has, in this respect as in all others, a right to proceed according to the light of conscience? and when once she has made choice of a particular religion and worship, may she not confer on her conductor all the power she possesses of regulating and directing that religion and worship, and enforcing their observance?
Let us not be told that the management of sacred things belongs not to a profane hand. Such discourses, when brought to the bar of reason, are found to be only vain declamations. There is nothing on earth more august and sacred than a sovereign; and why should God, who calls him by his providence to watch over the safety and happiness of a whole nation, deprive him of the direction of the most powerful spring that actuates mankind? The law of nature secures to him this right, with all others that are essential to good government; and nothing is to be found in Scripture that changes this disposition. Among the Jews, neither the king nor any other person could make any innovation in the law of Moses; but the sovereign attended to its preservation, and could check the high-priest when he deviated from his duty. Where is it asserted in the New Testament, that a Christian prince has nothing to do with religious affairs? Submission and obedience to the superior powers are there clearly and expressly enjoined. It were in vain to object to us the example of the apostles, who preached the gospel in opposition to the will of sovereigns:—whoever would deviate from the ordinary rules, must have a divine mission, and establish his authority by miracles.
No person can dispute that the sovereign has a right to take care that nothing contrary to the welfare and safety of the state be introduced into religion; and consequently he must have a right to examine its doctrines, and to point out what is to be taught, and what is to be suppressed in silence.
§140. He ought to prevent the abuse of the received religion.The sovereign ought likewise to watch attentively, in order to prevent the established religion from being employed to sinister purposes, either by making use of its discipline to gratify hatred, avarice, or other passions, or presenting its doctrines in a light that may prove prejudicial to the state. Of wild reveries, seraphic devotions, and sublime speculations, what would be the consequences to society, if it entirely consisted of individuals whose intellects were weak, and whose hearts were easily governed?—the consequences would be a renunciation of the world, a general neglect of business and of honest labour. This society of pretended saints would become an easy and certain prey to the first ambitious neighbour; or if suffered to live in peace, it would not survive the first generation; both sexes, consecrating their chastity to God, would refuse to co-operate in the designs of their creator, and to comply with the requisitions of nature and of the state. Unluckily for the missionaries, it evidently appears, even from Father Charlevoix’ History of New France, that their labours were the principal cause of the ruin of the Hurons. That author expressly says, that a great number of those converts would think of nothing but the faith,—that they forgot their activity and valour,—that divisions arose between them and the rest of the nation, &c. That nation was therefore soon destroyed by the Iroquois, whom they had before been accustomed to conquer.*
§141. The sovereign’s authority over the ministers of religion.To the prince’s inspection of the affairs and concerns of religion we have joined an authority over its ministers: without the latter power, the former would be nugatory and ineffectual:—they are both derived from the same principle. It is absurd, and contrary to the first foundations of society, that any citizens should claim an independence of the sovereign authority, in offices of such importance to the repose, the happiness, and safety of the state. This is establishing two independent powers in the same society,—an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state; the functions of the subordinate powers vary according to their different objects:—ecclesiastics, magistrates, and commanders of the troops, are all officers of the republic, each in his own department; and all are equally accountable to the sovereign.
§142. Nature of this authority.A prince cannot indeed justly oblige an ecclesiastic to preach a doctrine, or to perform a religious rite, which the latter does not think agreeable to the will of God. But if the minister cannot, in this respect, conform to the will of his sovereign, he ought to resign his station, and consider himself as a man who is not called to fill it,—two things being necessary for the discharge of the duty annexed to it, viz. to teach and behave with sincerity, according to the dictates of his own conscience, and to conform to the prince’s intentions, and the laws of the state. Who can forbear being filled with indignation, at seeing a bishop audaciously resist the orders of the sovereign, and the decrees of the supreme tribunals, solemnly declaring that he thinks himself accountable to God alone, for the power with which he is intrusted?
§143. Rule to be observed with respect to ecclesiastics.On the other hand, if the clergy are rendered contemptible, it will be out of their power to produce the fruits for which their ministry was appointed. The rule that should be followed with respect to them may be comprised in a few words:—let them enjoy a large portion of esteem; but let them have no authority, and still less any claim to independence. In the first place, let the clergy, as well as every other order of men, be, in their functions, as in every thing else, subject to the public power, and accountable to the sovereign for their conduct. Secondly, let the prince take care to render the ministers of religion respectable in the eyes of the people; let him trust them with the degree of authority necessary to enable them to discharge their duty with success; let him, in case of need, support them with the power he possesses. Every man in office ought to be vested with an authority commensurate to his functions; otherwise he will be unable to discharge them in a proper manner. I see no reason why the clergy should be excepted from this general rule; only the prince should be more particularly watchful that they do not abuse their authority; the affair being altogether the most delicate, and the most fruitful in dangers. If he renders the character of churchmen respectable, he should take care that this respect be not carried to such a superstitious veneration, as shall arm the hand of an ambitious priest with a powerful engine with which he may force weak minds into whatever direction he pleases. When once the clergy become a separate body, they become formidable. The Romans (we shall often have occasion to recur to them)— the wise Romans elected from among the senators their pontifex-maximus,42 and the principal ministers of the altar; they knew no distinction between clergy and laity; nor had they a set of gownsmen to constitute a separate class from the rest of the citizens.
§144. Recapitulation of the reasons which establish the sovereign’s rights in matters of religion.If the sovereign be deprived of this power in matters of religion, and this authority over the clergy, how shall he preserve the religion pure from the admixture of any thing contrary to the welfare of the state? How can he cause it to be constantly taught and practised in the manner most conducive to the pub-lic welfare? And especially, how can he prevent the disorders it may occasion, either by its doctrines, or the manner in which its discipline is exerted? These cares and duties can only belong to the sovereign, and nothing can dispense with his discharging them.
Authorities and examples.Hence we see that the prerogatives of the crown, in ecclesiastical affairs, have been constantly and faithfully defended by the parliaments of France. The wise and learned magistrates of whom those illustrious bodies are composed, are sensible of the maxims which sound reason dictates on this subject. They know how important it is not to suffer an affair of so delicate a nature, so extensive in its connections and influence, and so momentous in its consequences, to be placed beyond the reach of the public authority.—What! Shall ecclesiastics presume to propose to the people, as an article of faith, some obscure and useless dogma, which constitutes no essential part of the received religion?—shall they exclude from the church, and defame those who do not shew a blind obedience?—shall they refuse them the sacraments, and even the rites of burial?—and shall not the prince have power to protect his subjects, and preserve the kingdom from a dangerous schism?
The kings of England have asserted the prerogatives of their crown: they have caused themselves to be acknowledged heads of the church; and this regulation is equally approved by reason and sound policy, and is also conformable to ancient custom. The first christian emperors exercised all the functions of heads of the church; they made laws on subjects relating to it,* —summoned councils, and presided in them,— appointed and deposed bishops, &c. In Switzerland there are wise republics, whose sovereigns, knowing the full extent of the supreme authority, have rendered the ministers of religion subject to it, without offering violence to their consciences. They have prepared a formulary of the doctrines that are to be preached, and published laws of ecclesiastical discipline, such as they would have it exercised in the countries under their jurisdiction,—in order that those who will not conform to these establishments may not devote themselves to the service of the church. They keep all the ministers of religion in a lawful dependence, and suffer no exertion of church discipline but under their own authority. It is not probable that religion will ever occasion disturbances in these republics.
§145. Pernicious consequences of the contrary opinion.If Constantine and his successors had caused themselves to be formally acknowledged heads of the church,—and if Christian kings and princes had, in this instance, known how to maintain the rights of sovereignty,—would the world ever have witnessed those horrid disorders produced by the pride and ambition of some popes and ecclesiastics, emboldened by the weakness of princes, and supported by the superstition of the people,—rivers of blood shed in the quarrels of monks, about speculative questions that were often unintelligible, and almost always as useless to the salvation of souls, as in themselves indifferent to the welfare of society,—citizens and even brothers armed against each other,—subjects excited to revolt, and kings hurled from their thrones? Tantum religio potuit suadere malorum!43 The history of the emperors Henry IV.44 Frederic I.45 Frederic II.46 and Louis of Bavaria, are well known. Was it not the independence of the ecclesiastics,— was it not that system in which the affairs of religion are submitted to a foreign power,—that plunged France into the horrors of the league, and had nearly deprived her of the best and greatest of her kings? Had it not been for that strange and dangerous system, would a foreigner, pope Sixtus V. have undertaken to violate the fundamental law of the kingdom, and declared the lawful heir incapable of wearing the crown? Would the world have seen, at other times and in other places,* the succession to the crown rendered uncertain by a bare informality—the want of a dispensation, whose validity was disputed, and which a foreign prelate claimed the sole right of granting? Would that same foreigner have arrogated to himself the power of pronouncing on the legitimacy of the issue of a king? Would kings have been assassinated in consequence of a detestable doctrine?† Would a part of France have been afraid to acknowledge the best of their kings,‡ until he had received absolution from Rome? And would many other princes have been unable to give a solid peace to their people, because no decision could be formed within their own dominions on articles or conditions in which religion was interested?§
§146. The abuses particularised. 1. The power of the popes.All we have advanced on this subject, so evidently flows from the notions of independence and sovereignty, that it will never be disputed by any honest man who endeavours to reason justly. If a state cannot finally determine every thing relating to religion, the nation is not free, and the prince is but half a sovereign. There is no medium in this case; either each state must, within its own territories, possess supreme power in this respect, as well as in all others, or we must adopt the system of Boniface VIII.47 and consider all Roman catholic countries as forming only one state, of which the pope shall be the supreme head, and the kings subordinate administrators of temporal affairs, each in his province,— nearly as the sultans were formerly under the authority of the caliphs. We know that the above-mentioned pope had the presumption to write to Philip the Fair, king of France, Scire te volumus, quod in spiritualibus & tempo-ralibus nobis subes* —“We would have thee know that thou art subject to us as well in temporals as in spirituals.” And we may see in the canon law† his famous bull Unam sanctam,48 in which he attributes to the church two swords, or a double power, spiritual and temporal,—condemns those who think otherwise, as men, who, after the example of the Manicheans, establish two principles,—and finally declares, that it is an article of faith, necessary to salvation, to believe that every human creature is subject to the Roman pontiff.‡
We shall consider the enormous power of the popes as the first abuse that sprung from this system, which divests sovereigns of their authority in matters of religion. This power in a foreign court directly militates against the independence of nations and the sovereignty of princes. It is capable of overturning a state; and wherever it is acknowledged, the sovereign finds it impossible to exercise his authority in such a manner as is most for the advantage of the nation. We have already, in the last section, given several remarkable instances of this; and history presents others without number. The senate of Sweden having condemned Trollius,49 archbishop of Upsal, for the crime of rebellion, to be degraded from his see, and to end his days in a monastery, pope Leo X.50 had the audacity to excommunicate the administrator Steno, and the whole senate, and sentenced them to rebuild at their own expense a fortress belonging to the archbishop, which they had caused to be demolished, and pay a fine of a hundred thousand ducats to the deposed prelate.* The barbarous Christiern,51 king of Denmark, took advantage of this decree to lay waste the territories of Sweden, and to spill the blood of the most illustrious of her nobility. Paul V.52 thundered out an interdict against Venice, on account of some very wise laws made with respect to the government of the city, but which displeased that pontiff, who thus threw the republic into an embarrassment, from which all the wisdom and firmness of the senate found it difficult to extricate it. Pius V.53 in his bull In Coena Domini, of the year 1567, declares, that all princes who shall introduce into their dominions any new taxes, of what nature soever they be, or shall increase the ancient ones, without having first obtained the approbation of the holy see, are ipso facto excommunicated. Is not this a direct attack on the independence of nations, and a subversion of the authority of sovereigns?
In those unhappy times, those dark ages that preceded the revival of literature and the reformation, the popes attempted to regulate the actions of princes, under the pretence of conscience,—to judge of the validity of their treaties,—to break their alliances, and declare them null and void. But those attempts met with a vigorous resistance, even in a country which is generally thought to have then possessed valour alone, with a very small portion of knowledge. The pope’s nuncio, in order to detach the Swiss from the interests of France, published a monitory against all those cantons that favoured Charles VIII. declaring them excommunicated,54 if within the space of fifteen days they did not abandon the cause of that prince, and enter into the confederacy which was formed against him: but the Swiss opposed this act by protesting against it as an iniquitous abuse, and caused their protest to be publicly posted up in all the places under their jurisdiction,—thus shewing their contempt for a proceeding that was equally absurd and derogatory to the rights of sovereigns.* We shall mention several other similar attempts, when we come to treat of the faith of treaties.
§147. 2. Important employments conferred by a foreign power.This power in the popes has given birth to another abuse, that deserves the utmost attention from a wise government. We see several countries in which ecclesiastical dignities, and all the higher benefices, are distributed by a foreign power,—by the pope,—who bestows them on his creatures, and very often on men who are not subjects of the state. This practice is at once a violation of the nation’s rights, and of the principles of common policy. A nation ought not to suffer foreigners to dictate laws to her, to interfere in her concerns, or deprive her of her natural advantages: and yet how does it happen that so many states still tamely suffer a foreigner to dispose of posts and employments of the highest importance to their peace and happiness? The princes who consented to the introduction of so enormous an abuse, were equally wanting to themselves and their people. In our times the court of Spain has been obliged to expend immense sums in order to recover without danger the peaceable possession of a right which essentially belonged to the nation, or its head.
§148. 3. Powerful subjects dependent on a foreign court.Even in those states whose sovereigns have preserved so important a prerogative of the crown, the abuse in a great measure subsists. The sovereign nominates indeed to bishoprics and great benefices; but his authority is not sufficient to enable the persons nominated to enter on the exercise of their functions; they must also have bulls from Rome.* By this and a thousand other links of attachment, the whole body of the clergy, in those countries, still depend on the court of Rome; from it they expect dignities,—from it, that purple, which, according to the proud pretensions of those who are invested with it, renders them equal to sovereigns: from the resentment of that court, they have every thing to fear; and of course we see them almost invariably disposed to gratify it on every occasion. On the other hand, the court of Rome supports those clergy with all her might,—assists them by her politics and credit,—protects them against their enemies, and against those who would set bounds to their power,—nay, often against the just indignation of their sovereign,—and by this means attaches them to her still more strongly. Is it not doing an injury to the rights of society, and shocking the first elements of government, thus to suffer a great number of subjects, and even subjects in high posts, to be dependent on a foreign prince, and entirely devoted to him? Would a prudent sovereign receive men who preached such doctrines? There needed no more to cause all the missionaries to be driven from China.
§149. 4. The celibacy of the priests.It was for the purpose of more firmly securing the attachment of churchmen, that the celibacy of the clergy was invented. A priest, a prelate, already bound to the see of Rome by his functions and his hopes, is further detached from his country, by the celibacy he is obliged to observe. He is not connected with civil society by a family: his grand interests are all centred in the church; and provided he has the pope’s favour, he has no further concern: in what country soever he was born, Rome is his refuge, the centre of his adopted country. Every body knows that the religious orders are a sort of papal militia, spread over the face of the earth, to support and advance the interests of their monarch. This is doubtless a strange abuse,—a subversion of the first laws of society. But this is not all: if the prelates were married, they might enrich the state with a number of good citizens; rich benefices affording them the means of giving their legitimate children a suitable education. But what a multitude of men are there in Convents.convents, consecrated to idleness under the cloak of devotion! Equally useless to society in peace and war, they neither serve it by their labour in necessary professions, nor by their courage in arms: yet they enjoy immense revenues; and the people are obliged, by the sweat of their brow, to furnish support for these swarms of sluggards. What should we think of a husbandman who pro-tected useless hornets to devour the honey of his bees?* It is not the fault of the fanatic preachers of over-strained sanctity, if all their devotees do not imitate the celibacy of the monks. How happened it that princes could suffer them publicly to extol, as the most sublime virtue, a practice equally repugnant to nature, and pernicious to society? Among the Romans, laws were made to diminish the number of those who lived in celibacy, and to favour marriage:† but superstition soon attacked such just and wise regulations; and the christian emperors, persuaded by churchmen, thought themselves obliged to abrogate them.‡ Several of the fathers of the church have censured those laws against celibacy,—doubtless, says a great man,§with a laudable zeal for the things of another life, but with very little knowledge of the affairs of this. That great man lived in the church of Rome:—he did not dare to assert in direct terms, that voluntary celibacy is to be condemned even with respect to conscience and the things of another life:—but it is certainly a conduct well becoming genuine piety, to conform ourselves to nature, to fulfil the views of the Creator, and to labour for the welfare of society. If a person is capable of rearing a family, let him marry, let him be attentive to give his children a good education:—in so doing, he will discharge his duty, and be undoubtedly in the road to salvation.
§150. 5. Enormous pretensions of the clergy.The enormous and dangerous pretensions of the clergy are also another consequence of this system which places every thing relating to religion beyond the reach of the civil power. In the first place, the ecclesiastics, under pretence of the holiness of their functions, have raised themselves Pre-eminence.above all the other citizens, even the principal magistrates: and, contrary to the express injunctions of their master, who said to his apostles seek not the first places at feasts, they have almost every where arrogated to themselves the first rank. Their head, in the Roman church, obliges sovereigns to kiss his feet; emperors have held the bridle of his horse; and if bishops or even simple priests do not at present raise themselves above their prince, it is because the times will not permit it: they have not always been so modest; and one of their writers has had the assurance to assert, that a priest is as much above a king, as a man is above a beast.* How many authors, better known and more esteemed than the one just quoted, have taken a pleasure in praising and extolling that silly speech attributed to the emperor Theodosius the First—Ambrose has taught me the great distance there is between the empire and the priesthood!
We have already observed that ecclesiastics ought to be honoured: but modesty, and even humility, should characterise them: and does it become them to forget it in their own conduct, while they preach it to others? I would not mention a vain ceremonial, were it not attended with very material consequences, from the pride with which it inspires many priests, and the impressions it may make on the minds of the people. It is essentially necessary to good order, that subjects should behold none in society so respectable as their sovereign, and, next to him, those on whom he has devolved a part of his authority.
§151. 6. Independence.Ecclesiastics have not stopped in so fair a path. Not contented with rendering themselves independent with respect to their functions,—by the aid of the court of Immunities.Rome, they have even attempted to withdraw themselves entirely, and in every respect, from all subjection to the political authority. There have been times when an ecclesiastic could not be brought before a secular tribunal for any crime whatsoever.* The canon law declares expressly, It is indecent for laymen to judge a churchman.† The popes Paul III. Pius V. and Urban VIII.55 excommunicated all lay judges who should presume to undertake the trial of ecclesiastics. Even the bishops of France have not been afraid to say on several occasions, that they did not depend on any temporal prince; and, in 1656, the general assembly of the French clergy had the assurance to use the following expressions—“The decree of council having been read, was disapproved by the assembly, because it leaves the king judge over the bishops, and seems to subject their immunities to his judges.* There are decrees of the popes that excommunicate whoever imprisons a bishop. According to the principles of the church of Rome, a prince has not the power of punishing an ecclesiastic with death, though a rebel, or a malefactor;— he must first apply to the ecclesiastical power; and the latter will, if it thinks proper, deliver up the culprit to the secular arm, after having degraded him.† History affords us a thousand examples of bishops who remained unpunished, or were but slightly chastised, for crimes for which nobles of the highest rank forfeited their lives. John de Braganza, king of Portugal, justly inflicted the penalty of death on those noblemen who had conspired his destruction; but he did not dare to put to death the archbishop of Braga, the author of that detestable plot.*56
For an entire body of men, numerous and powerful, to stand beyond the reach of the public authority, and be dependent on a foreign court, is an entire subversion of order in the republic, and a manifest diminution of the sovereignty. This is a mortal stab given to society, whose very essence it is that every citizen should be subject to the public authority. Indeed the immunity which the clergy arrogate to themselves in this respect, is so inimical to the natural and necessary rights of a nation, that the king himself has not the power of granting it. But churchmen will tell us they derive this immunity from God himself: but till they have furnished some proof of their pretensions, let us adhere to this certain principle, that God desires the safety of states, and not that which will only be productive of disorder and destruction to them.
§152. 7. Immunity of church possessions.The same immunity is claimed for the possessions of the church. The state might, no doubt, exempt those possessions from every species of tax at a time when they were scarcely sufficient for the support of the ecclesiastics: but, for that favour, these men ought to be indebted to the public authority alone, which has always a right to revoke it, whenever the welfare of the state makes it necessary. It being one of the fundamental and essential laws of every society, that, in case of necessity, the wealth of all the members ought to contribute proportionally to the common necessities,—the prince himself cannot, of his own authority, grant a total exemption to a very numerous and rich body, without being guilty of extreme injustice to the rest of his subjects, on whom, in consequence of that exemption, the whole weight of the burthen will fall.
The possessions of the church are so far from being entitled to an exemption on account of their being consecrated to God, that, on the contrary, it is for that very reason they ought to be taken the first for the use and safety of the state. For nothing is more agreeable to the common Father of mankind than to save a state from ruin. God himself having no need of any thing, the consecration of wealth to him is but a dedication of it to such uses as shall be agreeable to him. Besides, a great part of the revenues of the church, by the confession of the clergy themselves, is destined for the poor. When the state is in necessity, it is doubtless the first and principal pauper, and the most worthy of assistance. We may extend this principle even to the most common cases, and safely assert that to supply a part of the current expenses of the state from the revenues of the church, and thus take so much from the weight of the people’s burthen, is really giving a part of those revenues to the poor, according to their original destination. But it is really contrary to religion and the intentions of the founders, to waste in pomp, luxury, and epicurism, those revenues that ought to be consecrated to the relief of the poor.*
§153. 8. Excommunication of men in office.Not satisfied however with rendering themselves independent, the ecclesiastics undertook to bring mankind under their dominion; and indeed they had reason to despise the stupid mortals who suffered them to proceed in their plan. Excommunication was a formidable weapon among ignorant and superstitious men, who neither knew how to keep it within its proper bounds, nor to distinguish between the use and the abuse of it. Hence arose disorders, which have prevailed even in some protestant countries. Churchmen have presumed, by their own authority alone, to excommunicate men in high employments, magistrates whose functions were daily useful to society,—and have boldly asserted that those officers of the state, being struck with the thunders of the church, could no longer discharge the duty of their posts. What a perversion of order and reason! What! shall not a nation be allowed to intrust its affairs, its happiness, its repose and safety, to the hands of those whom it deems the most skilful and the most worthy of that trust? Shall the power of a churchman, whenever he pleases, deprive the state of its wisest conductors, of its firmest supports, and rob the prince of his most faithful servants? So absurd a pretension has been condemned by princes, and even by prelates, respectable for their character and judgment. We read in the 171st letter of Ives de Chartres,57 to the archbishop of Sens, that the royal capi-tularies (conformably to the thirteenth canon of the twelfth council of Toledo, held in the year 681) enjoined the priests to admit to their conversation all those whom the king’s majesty had received into favour, or entertained at his table, though they had been excommunicated by them, or by others,—in order that the church might not appear to reject or condemn those whom the king was pleased to employ in his service.*
§154. 9. And of sovereigns themselves.The excommunications pronounced against the sovereigns themselves, and accompanied with the absolution of their subjects from their oaths of allegiance, put the finishing stroke to this enormous abuse; and it is almost incredible that nations should have suffered such odious procedures. We have slightly touched on this subject in §§145 and 146. The thirteenth century gives striking instances of it. Otho IV. for endeavouring to oblige several provinces of Italy to submit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III.58 and his subjects absolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to resign the crown to Frederic II. John, king of England, endeavouring to maintain the rights of his kingdom in the election of an archbishop of Canterbury,59 found himself exposed to the audacious enterprises of the same pope. Innocent excommunicated the king,—laid the whole kingdom under an interdict,—had the presumption to declare John unworthy of the throne, and to absolve his subjects from their oath of fidelity: he stirred up the clergy against him,—excited his subjects to rebel,—solicited the king of France to take up arms to dethrone him,— publishing at the same time a crusade against him, as he would have done against the Saracens. The king of England at first appeared determined to defend himself with vigour: but soon losing courage, he suffered himself to be brought to such an excess of infamy, as to resign his kingdoms into the hands of the pope’s legate, to receive them back from him, and hold them as a fief of the church, on condition of paying tribute.*
The popes were not the only persons guilty of such enormities: there have also been councils who bore a part in them. That of Lyons, summoned by Innocent IV.60 in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himself from the charges brought against him,—threatening him with the thunders of the church if he failed to do it. That great prince did not give himself much trouble about so irregular a proceeding. He said, “that the pope aimed at rendering himself both a judge and a sovereign; but that, from all antiquity, the emperors themselves had called councils, where the popes and prelates rendered to them, as to their sovereigns, the respect and obedience that was their due.”† The emperor, however, thinking it necessary to yield a little to the superstition of the times, condescended to send ambassadors to the council, to defend his cause: but this did not prevent the pope from excommunicating him, and declaring him deprived of the crown. Frederic, like a man of a superior genius, laughed at the empty thunders of the Vatican, and proved himself able to preserve the crown in spite of the election of Henry, Landgrave of Thuringia,61 whom the ecclesiastical electors, and many bishops, had presumed to declare king of the Romans,—but who obtained little more by that election, than the ridiculous title of king of the priests.
I should never have done, were I to accumulate examples: but those I have already quoted are but too many for the honour of humanity. It is an humiliating sight to behold the excess of folly to which superstition had reduced the nations of Europe in those unhappy times.‡
§155. 10. The clergy drawing every thing to themselves, and disturbing the order of justice.By means of the same spiritual arms, the clergy drew every thing to themselves, usurped the authority of the tribunals, and disturbed the course of justice. They claimed a right to take cognisance of all causes, on account of sin, of which (says Innocent III.)*every man of sense must know that the cognisance belongs to our ministry. In the year 1329, the prelates of France had the assurance to tell king Philip de Valois, that, to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere.†62 And accordingly it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that, as dioceses were not always confined to the extent of the political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it; and stipulated in their treaties, that none of the confederates should be summoned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice that were observed in the country.* We find in history that the Swiss on many occasions repressed the encroachments of the bishops and their judges.
Over every affair of life they extended their authority, under pretence that conscience was concerned. They obliged new-married husbands to purchase permission to lie with their wives, the first three nights after marriage.†
§156. 11. Money drawn to Rome.This burlesque invention leads us to remark another abuse, manifestly contrary to the rules of a wise policy, and to the duty a nation owes to herself,—I mean the immense sums, which bulls, dispensations, &c. annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, suffered irreparable losses.
§157. 12. Laws and customs contrary to the welfare of states.Finally, that independent authority intrusted to ecclesiastics, who were often incapable of understanding the true maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a visionary fanaticism, by empty speculations, and notions of a chimerical and overstrained purity,—that authority, I say, produced, under the pretence of sanctity, laws and customs that were pernicious to the state. Some of these we have noticed: but a very remarkable instance is mentioned by Grotius. “In the ancient Greek church,” says he, “was long observed a canon, by which those who had killed an enemy in any war whatsoever, were excommunicated for three years.”‡ A fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world:—she adorned her bravest warriors with crowns. The empire, having embraced christianity, soon became a prey to barbarians:—her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness.
Of Justice and Polity.
§158. A nation ought to make justice reign.Next to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burthensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§15) that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainty. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavour to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency, will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes: without this, the civil virtues will become extinguished, and the society weakened.
§159. To establish good laws.There are two methods of making justice flourish,—good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.) we have already shewn, that a nation ought to establish just and wise laws, and have also pointed out the reasons, why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights without being misled by self-deception: sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.* It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These again are the civil laws.
§160. To enforce them.The best laws are useless, if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.
§161. Functions and duties of the prince in this respect.We have already observed (§41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperatoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, & bellorum & pacis, recte possit gubernari.63 The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body,—it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.
§162. How he is to dispense justice.The executive power naturally belongs to the sovereign,—to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince’s province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible, in a great kingdom.
§163. He ought to appoint enlightened and upright judges.The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognisance of all the disputes that may arise between the citizens. It is impossible for the prince to take upon himself this painful task: he cannot spare sufficient time either for the thorough investigation of all causes, or even for the acquisition of the knowledge necessary to decide them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance,—intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a law-suit to a body of prudent, honest, and enlightened men:—on the contrary it is the best mode the prince can possibly adopt; and he fully acquits himself of the duty he owes to his people in this particular, when he gives them judges adorned with all the qualities suitable to ministers of justice: he has then nothing more to do but to watch over their conduct, in order that they may not neglect their duty.
§164. The ordinary courts should determine causes relating to the revenue.The establishment of courts of justice is particularly necessary for the decision of all fiscal causes,—that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own cause:—he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counsellors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons.
§165. There ought to be established supreme courts of justice, wherein causes should be finally determined.The end of all trials at law is justly to determine the disputes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined.
The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shews, what powerful resources are derived from favour and intrigue in the courts of kings. If this practice be authorised by the laws of the state, the prince ought always to fear that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorises us to say, that it is more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice, that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state,— and that he have power to call to an account and to punish such as are guilty of prevarication.
§166. The prince ought to preserve the forms of justice.When once this sovereign tribunal is established, the prince cannot meddle with its decrees; and, in general, he is absolutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary power, to which it cannot be presumed that any nation could ever have intended to subject itself.
When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights,—to repress and destroy that monster, chicanery,—will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror.
§167. The prince ought to support the authority of the judges.Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which, they would be vain and delusive; for justice would not be rendered to the citizens.
§168. Of distributive justice.There is another kind of justice named attributive or distributive, which in general consists in treating every one according to his deserts. This virtue ought to regulate the distribution of public employments, honours, and rewards in a state. It is, in the first place, a duty the nation owes The distribution of employments and rewards.to herself, to encourage good citizens, to excite every one to virtue by honours and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to shew herself duly attentive to reward and honour merit. Although a sovereign has the power of distributing his favours and employments to whomsoever he pleases, and nobody has a perfect right to any post or dignity,—yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in a course of time can become more prejudicial to a state: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of those revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favour.
§169. Punishment of transgressors.The punishment of transgressors commonly belongs to distributive justice, of which it is really a branch; since good order requires that malefactors should be made to suffer the punishments they have deserved. But if we would clearly establish this on its true foundations, we must recur to first principles. Foundation of the right of punishing.The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security, against those who unjustly attack him. For this purpose, he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society,—as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it;—that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government,—the laws, and their execution.
§170. Criminal laws.It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment, pre-ordained for an evil action, lays a more effectual restraint on the wicked, than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say, that each nation ought, in this as in every other instance, to chuse such laws as may best suit her peculiar circumstances.
§171. Degree of punishment.We shall only make one observation, which is connected with the subject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew beforehand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defence and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.
These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shews us, that the imagination becomes familiarised to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character:— these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honours:—a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals,—when we reflect on their scrupulous attention to spare the blood of the citizens,— we cannot fail to be struck at seeing with how little ceremony it is now- a-days shed in the generality of states. Was then the Roman republic but ill governed? Does better order and greater security reign among us?— It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is punished with death, what further punishment is reserved to check the hand of the murderer?
§172. Execution of the laws.The execution of the laws belongs to the conductor of the state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature,—to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favour, and leave it to the magistrates to execute the rigour of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny: and the liberty of the citizens is at an end, when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself,—for the same reason, he ought not to aggravate the sentence passed by the judges.
§173. Right of pardoning.The very nature of government requires that the executor of the laws should have the power of dispensing with them, when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignty. But, in his whole conduct, in his severity as well as in his mercy, the sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency,—the care of the public safety, with that pity which is due to the unfortunate.
§174. Internal police.The internal police consists in the attention of the prince and magistrates to preserve every thing in order. Wise regulations ought to prescribe whatever will best contribute to the public safety, utility and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect:—a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.
§175. Duel, or single combat.Laws and the authority of the magistrates having been substituted in the room of private war, the conductor of a nation ought not to suffer individuals to attempt to do themselves justice, when they can have recourse to the magistrates. Duelling—that species of combat, in which the parties engage on account of a private quarrel—is a manifest disorder, repugnant to the ends of civil society. This phrenzy was unknown to the ancient Greeks and Romans, who raised to such a height the glory of their arms: we received it from barbarous nations who knew no other law but the sword. Louis XIV. deserves the greatest praise for his endeavours to abolish this savage custom.
§176. Means of putting a stop to this disorder.But why was not that prince made sensible that the most severe punishments were incapable of curing the rage for duelling? They did not reach the source of the evil; and since a ridiculous prejudice had persuaded all the nobility and gentlemen of the army, that a man who wears a sword is bound in honour to avenge, with his own hand, the least injury he has received; this is the principle on which it is proper to proceed. We must destroy this prejudice, or restrain it by a motive of the same nature. While a nobleman, by obeying the law, shall be regarded by his equals as a coward and as a man dishonoured,—while an officer in the same case shall be forced to quit the service,—can you hinder his fighting by threatening him with death? On the contrary, he will place a part of his bravery in doubly exposing his life, in order to wash away the affront. And certainly, while the prejudice subsists, while a nobleman or an officer cannot act in opposition to it, without embittering the rest of his life, I do not know whether we can justly punish him who is forced to submit to its tyranny, or whether he be very guilty with respect to morality. That worldly honour, be it as false and chimerical as you please, is to him a substantial and necessary possession, since without it, he can neither live with his equals, nor exercise a profession that is often his only resource. When therefore any insolent fellow would unjustly ravish from him that chimera so esteemed and so necessary, why may he not defend it as he would his life and property against a robber? As the state does not permit an individual to pursue with arms in his hand the usurper of his property, because he may obtain justice from the magistrate,—so, if the sovereign will not allow him to draw his sword against the man from whom he has received an insult, he ought necessarily to take such measures that the patience and obedience of the citizen who has been insulted, shall not prove prejudicial to him. Society cannot deprive man of his natural right of making war against an aggressor, without furnishing him with some other means of securing himself from the evil his enemy would do him. On all those occasions where the public authority cannot lend us its assistance, we resume our original and natural right of self-defence. Thus a traveller may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate. Thus a chaste virgin would be praised for taking away the life of a brutal ravisher who attempted to force her to his desires.
Till men have got rid of this Gothic idea, that honour obliges them, even in contempt of the laws, to avenge their personal injuries with their own hands, the most effectual method of putting a stop to the effects of this prejudice would perhaps be to make a total distinction between the offended and the aggressor,—to pardon the former without difficulty, when it appears that his honour has been really attacked,—and to exercise justice without mercy on the party who has committed the outrage. And as to those who draw the sword for trifles and punctilios, for little piques or railleries in which honour is not concerned, I would have them severely punished. By this means a restraint would be put on those peevish and insolent folks, who often reduce even the most moderate men to a necessity of chastising them. Every one would be on his guard, to avoid being considered as the aggressor; and with a view to gain the advantage of engaging in duel (if unavoidable) without incurring the penalties of the law, both parties would curb their passions; by which means the quarrel would fall of itself, and be attended with no consequences. It frequently happens that a bully is at bottom a coward; he gives himself haughty airs, and offers insult, in hopes that the rigour of the law will oblige people to put up with his insolence. And what is the consequence?—A man of spirit will run every risk, rather than submit to be insulted:—the aggressor dares not recede: and a combat ensues, which would not have taken place, if the latter could have once imagined that there was nothing to prevent the other from chastising him for his presumption,—the offended person being acquitted by the same law that condemns the aggressor.
To this first law, whose efficacy would, I doubt not, be soon proved by experience, it would be proper to add the following regulations:—1. Since it is an established custom that the nobility and military men should appear armed even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. 2. It would be proper to establish a particular court, to determine, in a summary manner, all affairs of honour between persons of these two orders. The marshals’ court in France is in possession of this power; and it might be invested with it in a more formal manner and to a greater extent. The governors of provinces and strong places, with their general officers,—the colonels and captains of each regiment,—might, in this particular, act as deputies to the marshals. These courts, each in its own department, should alone confer the right of wearing a sword. Every nobleman at sixteen or eighteen years of age, and every soldier at his entrance into the regiment, should be obliged to appear before the court to receive the sword. 3. On its being there delivered to him, he should be informed, that it is intrusted to him only for the defence of his country; and care might be taken to inspire him with true ideas of honour. 4. It appears to me of great importance, to establish, for different cases, punishments of a different nature. Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment,—even the punishment of death, according to the grossness of the insult: and, as I before observed, no favour should be shewn to the offender in case a duel was the consequence, while at the same time the other party should stand fully acquitted. Those who fight on slight occasions, I would not have condemned to death, unless in such cases where the author of the quarrel,—he, I mean, who carried it so far as to draw his sword, or to give the challenge,—has killed his adversary. People hope to escape punishment, when it is too severe; and, besides, a capital punishment, in such cases, is not considered as infamous. But let them be ignominiously degraded from the rank of nobility and the use of arms, and for ever deprived of the right of wearing a sword, without the least hope of pardon: this would be the most proper method to restrain men of spirit, provided that due care was taken to make a distinction between different offenders, according to the degree of the offence. As to persons below the rank of nobility, and who do not belong to the army, their quarrels should be left to the cognisance of the ordinary courts, which, in case of bloodshed, should punish the offenders according to the common laws against violence and murder. It should be the same with respect to any quarrel that might arise between a commoner and a man entitled to carry arms: it is the business of the ordinary magistrate to preserve order and peace between those two classes of men, who cannot have any points of honour to settle, the one with the other. To protect the people against the violence of those who wear the sword, and to punish the former severely, if they should dare to insult the latter, should further be, as it is at present, the business of the magistrate.
I am sanguine enough to believe that these regulations, and this method of proceeding, if strictly adhered to, would extirpate that monster, duelling, which the most severe laws have been unable to restrain. They go to the source of the evil by preventing quarrels, and oppose a lively sensation of true and real honour to that false and punctilious honour which occasions the spilling of so much blood. It would be worthy a great monarch to make a trial of it: its success would immortalise his name; and by the bare attempt he would merit the love and gratitude of his people.
The third Object of a good Government,—to fortify itself against external Attacks.
§177. A nation ought to fortify itself against external attacks.We have treated at large of what relates to the felicity of a nation: the subject is equally copious and complicated. Let us now proceed to a third division of the duties which a nation owes to itself,—a third object of good government. One of the ends of political society is to defend itself with its combined strength against all external insult or violence (§15). If the society is not in a condition to repulse an aggressor, it is very imperfect,—it is unequal to the principal object of its destination, and cannot long subsist. The nation ought to put itself in such a state as to be able to repel and humble an unjust enemy: this is an important duty, which the care of its own perfection, and even of its preservation, imposes both on the state and its conductor.
§178. National strength.It is its strength alone that can enable a nation to repulse all aggressors, to secure its rights, and render itself every where respectable. It is called upon by every possible motive, to neglect no circumstance that can tend to place it in this happy situation. The strength of a state consists in three things,—the number of the citizens, their military virtues, and their riches. Under this last article we may comprehend fortresses, artillery, arms, horses, ammunition, and, in general, all that immense apparatus at present necessary in war, since they can all be procured with money.
§179. Increase of population.To increase the number of the citizens as far as it is possible or convenient, is then one of the first objects that claim the attentive care of the state or its conductor: and this will be successfully effected by complying with the obligation to procure the country a plenty of the necessaries of life,—by enabling the people to support their families with the fruits of their labour,—by giving proper directions that the poorer classes, and especially the husbandmen, be not harassed and oppressed by the levying of taxes,—by governing with mildness, and in a manner, which, instead of disgusting and dispersing the present subjects of the state, shall rather attract new ones,—and, finally, by encouraging marriage, after the example of the Romans. That nation, so attentive to every thing capable of increasing and supporting their power, made wise laws against celibacy (as we have already observed in §149), and granted privileges and exemptions to married men, particularly to those who had numerous families: laws that were equally wise and just, since a citizen who rears subjects for the state, has a right to expect more favour from it than the man who chuses to live for himself alone.*
Every thing tending to depopulate a country is a defect in a state not overstocked with inhabitants. We have already spoken of convents and the celibacy of priests. It is strange that establishments, so directly repugnant to the duties of a man and a citizen, as well as to the advantage and safety of society, should have found such favour, and that princes, instead of opposing them as it was their duty to do, should have protected and enriched them. A system of policy, that dextrously took advantage of superstition to extend its own power, led princes and subjects astray, caused them to mistake their real duties, and blinded sovereigns even with respect to their own interest. Experience seems at length to have opened the eyes of nations and their conductors; the pope himself (let us mention it to the honour of Benedict XIV.) endeavours gradually to reform so palpable an abuse; by his orders, none in his dominions are any longer permitted to take the vow of celibacy before they are twenty-five years of age. That wise pontiff gives the sovereigns of his communion a salutary example; he invites them to attend at length to the safety of their states,—to narrow at least, if they cannot entirely close up, the avenues of that sink that drains their dominions. Take a view of Germany; and there, in countries which are in all other respects upon an equal footing, you will see the protestant states twice as populous as the catholic ones. Compare the desert state of Spain with that of England teeming with inhabitants:—survey many fine provinces, even in France, destitute of hands to till the soil;—and then tell me, whether the many thousands of both sexes, who are now locked up in convents, would not serve God and their country infinitely better, by peopling those fertile plains with useful cultivators? It is true, indeed, that the catholic cantons of Switzerland are nevertheless very populous: but this is owing to a profound peace, and the nature of the government, which abundantly repair the losses occasioned by convents. Liberty is able to remedy the greatest evils; it is the soul of a state, and was with great justice called by the Romans alma Libertas.
§180. Valour.A cowardly and undisciplined multitude are incapable of repulsing a warlike enemy: the strength of the state consists less in the number than the military virtues of its citizens. Valour, that heroic virtue which makes us undauntedly encounter danger in defence of our country, is the firmest support of the state: it renders it formidable to its enemies, and often even saves it the trouble of defending itself. A state whose reputation in this respect is once well established, will be seldom attacked, if it does not provoke other states by its enterprises. For above two centuries the Swiss have enjoyed a profound peace, while the din of arms resounded all around them, and the rest of Europe was desolated by the ravages of war. Nature gives the foundation of valour; but various causes may animate it, weaken it, and even destroy it. A nation ought then to seek after and cultivate a virtue so useful; and a prudent sovereign will take all possible measures to inspire his subjects with it:—his wisdom will point out to him the means. It is this generous flame that animates the French nobility: fired with a love of glory and of their country, they fly to battle, and cheerfully spill their blood in the field of honour. To what an extent would they not carry their conquests, if that kingdom were surrounded by nations less warlike! The Briton, generous and intrepid, resembles a lion in combat; and in general, the nations of Europe surpass in bravery all the other people upon earth.
§181. Other military virtues.But valour alone is not always successful in war: constant success can only be obtained by an assemblage of all the military virtues. History shews us the importance of ability in the commanders, of military discipline, frugality, bodily strength, dexterity, and being inured to fatigue and labour. These are so many distinct branches which a nation ought carefully to cultivate. It was the assemblage of all these that raised so high the glory of the Romans, and rendered them the masters of the world. It were a mistake to suppose that valour alone produced those illustrious exploits of the ancient Swiss,—the victories of Morgarten, Sempach, Laupen, Morat, and many others.64 The Swiss not only fought with intrepidity: they studied the art of war,—they inured themselves to its toils, they accustomed themselves to the practice of all its manoeuvres,—and their very love of liberty made them submit to a discipline which could alone secure to them that treasure, and save their country. Their troops were no less celebrated for their discipline than their bravery. Mezeray, after having given an account of the behaviour of the Swiss at the battle of Dreux,65 adds these remarkable words: “in the opinion of all the officers of both sides who were present, the Swiss, in that battle, under every trial, against infantry and cavalry, against French and against Germans, gained the palm for military discipline, and acquired the reputation of being the best infantry in the world.”*
§182. Riches.Finally, the wealth of a nation constitutes a considerable part of its power, especially in modern times, when war requires such immense expenses. It is not simply in the revenues of the sovereign, or the public treasure, that the riches of a nation consist: its opulence is also rated from the wealth of individuals. We commonly call a nation rich, when it contains a great number of citizens in easy and affluent circumstances. The wealth of private persons really increases the strength of the nation; since they are capable of contributing large sums towards supplying the necessities of the state, and that, in a case of extremity, the sovereign may even employ all the riches of his subjects in the defence, and for the safety of the state, in virtue of the supreme command with which he is invested, as we shall hereafter shew. The nation then ought to endeavour to acquire those public and private riches, that are of such use to it: and this is a new reason for encouraging a commerce with other nations, which is the source from whence they flow,—and a new motive for the sovereign to keep a watchful eye over the different branches of foreign trade carried on by his subjects, in order that he may preserve and protect the profitable branches, and cut off those that occasion the exportation of gold and silver.
§183. Public revenues, and taxes.It is requisite that the state should possess an income proportionate to its necessary expenditures. That income may be supplied by various means,—by lands reserved for that purpose, by contributions, taxes of different kinds, &c.—but of this subject we shall treat in another place.
§184. The nation ought not to increase its power by illegal means.We have here summed up the principal ingredients that constitute that strength which a nation ought to augment and improve.—Can it be necessary to add the observation, that this desirable object is not to be pursued by any other methods than such as are just and innocent? A laudable end is not sufficient to sanctify the means; for these ought to be in their own nature lawful. The law of nature cannot contradict itself: if it forbids an action as unjust or dishonest in its own nature, it can never permit it for any purpose whatever. And therefore in those cases where that object, in itself so valuable and so praiseworthy, cannot be attained without employing unlawful means, it ought to be considered as unattainable, and consequently be relinquished. Thus we shall shew, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandise itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbour’s property.
§185. Power is but relative.The power of a nation is relative, and ought to be measured by that of its neighbours, or of all the nations from whom it has any thing to fear. The state is sufficiently powerful, when it is capable of causing itself to be respected, and of repelling whoever would attack it. It may be placed in this happy situation, either by keeping up its own strength equal or even superior to that of its neighbours,—or by preventing their rising to a predominant and formidable power. But we cannot shew here, in what cases, and by what means, a state may justly set bounds to the power of another: it is necessary first to explain the duties of a nation towards others, in order to combine them afterwards with its duties towards itself. For the present we shall only observe that a nation, while it obeys the dictates of prudence and wise policy in this instance, ought never to lose sight of the maxims of justice.
Of the Glory of a Nation.
§186. Advantages of glory.The glory of a nation is intimately connected with its power, and indeed forms a considerable part of it. It is this brilliant advantage that procures it the esteem of other nations, and renders it respectable to its neighbours. A nation whose reputation is well established,—especially one whose glory is illustrious,—is courted by all sovereigns: they desire its friendship, and are afraid of offending it. Its friends, and those who wish to become so, favour its enterprises, and those who envy its prosperity are afraid to shew their ill-will.
§187. Duty of the nation.It is then of great advantage to a nation to establish its reputation and glory: hence this becomes one of the most important of the duties it owes to itself. True glory consists in the favourable opinion of men of wisdom and discernment: How true glory is acquired.it is acquired by the virtues or good qualities of the head and the heart, and by great actions which are the fruits of those virtues. A nation may have a two-fold claim to it—first, by what it does in its national character, by the conduct of those who have the administration of its affairs, and are invested with its authority and government,—and, secondly, by the merit of the individuals of whom the nation is composed.
§188. Duty of the prince.A prince, a sovereign of whatever kind, being bound to exert every effort for the good of the nation, is doubtless obliged to extend its glory, as far as lies in his power. We have seen that his duty is to labour after the perfection of the state, and of the people who are subject to him: by that means he will make them merit a good reputation and glory. He ought always to have this object in view in every thing he undertakes, and in the use he makes of his power. Let him, in all his actions, display justice, moderation, and greatness of soul: and he will thus acquire for himself and his people a name respected by the universe, and not less useful than glorious. The glory of Henry IV.66 saved France: in the deplorable state in which he found affairs, his virtues gave animation to the loyal part of his subjects, and encouraged foreign nations to lend him their assistance, and to enter into an alliance with him against the ambitious Spaniards. In his circumstances, a weak prince of little estimation would have been abandoned by all the world; people would have been afraid of being involved in his ruin.
Besides the virtues which constitute the glory of princes as well as of private persons, there is a dignity and decorum that particularly belong to the supreme rank, and which a sovereign ought to observe with the greatest care. He cannot neglect them without degrading himself, and casting a stain upon the state. Every thing that emanates from the throne ought to bear the character of purity, nobleness, and greatness. What an idea do we conceive of a people, when we see their sovereign display in his public acts a meanness of sentiment, by which a private person would think himself disgraced! All the majesty of the nation resides in the person of the prince:—what then must become of it if he prostitutes it, or suffers it to be prostituted by those who speak and act in his name? The minister who puts into his master’s mouth a language unworthy of him, deserves to be turned out of office with every mark of ignominy.
§189. Duty of the citizens.The reputation of individuals is, by a common and natural mode of speaking and thinking, made to reflect on the whole nation. In general we attribute a virtue or a vice to a people, when that vice or that virtue is frequently observed among them. We say that a nation is warlike, when it produces a great number of brave warriors,—that it is learned, when there are many learned men among the citizens,—and that it excels in the arts, when it produces many able artists: on the other hand, we call it cowardly, lazy or stupid, when men of those characters are more numerous there than elsewhere. The citizens, being obliged to labour with all their might to promote the welfare and advantage of their country, not only owe to themselves the care of deserving a good reputation, but they also owe it to the nation, whose glory is so liable to be influenced by theirs. Bacon, Newton, Descartes, Leibnitz, and Bernouilli,67 have each done honour to his native country, and essentially benefited it by the glory he acquired. Great ministers, and great generals,—an Oxenstiern,68 a Turenne,69 a Marlborough,70 a Ruyter,71 —serve their country in a double capacity, both by their actions, and by their glory. On the other hand, the fear of reflecting a disgrace on his country will furnish the good citizen with a new motive for abstaining from every dishonourable action. And the prince ought not to suffer his subjects to give themselves up to vices capable of bringing infamy on the nation, or even of simply tarnishing the brightness of its glory:—he has a right to suppress and to punish scandalous enormities, which do a real injury to the state.
§190. Example of the Swiss.The example of the Swiss is very capable of shewing how advantageous glory may prove to a nation. The high reputation they have acquired for their valour, and which they still gloriously support, has preserved them in peace for above two centuries, and rendered all the powers of Europe desirous of their assistance. Louis XI. while dauphin, was witness of the prodigies of valour they performed at the battle of St. Jaques,72 near Basle, and he immediately formed the design of closely attaching to his interest so intrepid a nation.* The twelve hundred gallant heroes, who on this occasion attacked an army of between fifty and sixty thousand veteran troops, first defeated the vanguard of the Armagnacs, which was eighteen thousand strong; afterwards rashly engaging the main body of the army, they perished almost to a man, without being able to complete their victory.* But besides their terrifying the enemy, and preserving Switzerland from a ruinous invasion, they rendered her essential service by the glory they acquired for her arms. A reputation for an inviolable fidelity is no less advantageous to that nation; and they have at all times been jealous of preserving it. The canton of Zug punished with death that unworthy soldier who betrayed the confidence of the duke of Milan by discovering that prince to the French, when, to escape them, he had disguised himself in the habit of the Swiss and placed himself in their ranks as they were marching out of Novara.†
§191. Attacking the glory of a nation is doing her an injury.Since the glory of a nation is a real and substantial advantage, she has a right to defend it, as well as her other advantages. He who attacks her glory does her an injury; and she has a right to exact of him, even by force of arms, a just reparation. We cannot then condemn those measures sometimes taken by sovereigns to support or avenge the dignity of their crown. They are equally just and necessary. If, when they do not proceed from too lofty pretensions, we attribute them to a vain pride, we only betray the grossest ignorance of the art of reigning, and despise one of the firmest supports of the greatness and safety of a state.
Of the Protection sought by a Nation, and its voluntary Submission to a foreign Power.
§192. Protection.When a nation is not capable of preserving herself from insult and oppression, she may procure the protection of a more powerful state. If she obtains this by only engaging to perform certain articles, as, to pay a tribute in return for the safety obtained,—to furnish her protector with troops,—and to embark in all his wars as a joint concern,—but still reserving to herself the right of administering her own government at pleasure,—it is a simple treaty of protection, that does not at all derogate from her sovereignty, and differs not from the ordinary treaties of alliance otherwise than as it creates a difference in the dignity of the contracting parties.
§193. Voluntary submission of one nation to another.But this matter is sometimes carried still farther: and although a nation is under an obligation to preserve with the utmost care the liberty and independence it inherits from nature,—yet, when it has not sufficient strength of itself, and feels itself unable to resist its enemies, it may lawfully subject itself to a more powerful nation on certain conditions agreed to by both parties: and the compact or treaty of submission will thenceforward be the measure and rule of the rights of each. For since the people who enter into subjection resign a right which naturally belongs to them, and transfer it to the other nation, they are perfectly at liberty to annex what conditions they please to this transfer; and the other party, by accepting their submission on this footing, engages to observe religiously all the clauses of the treaty.
§194. Several kinds of submission.This submission may be varied to infinity, according to the will of the contracting parties: it may either leave the inferior nation a part of the sovereignty, restraining it only in certain respects,—or it may totally abolish it, so that the superior nation shall become the sovereign of the other,—or, finally, the lesser nation may be incorporated with the greater, in order thenceforward to form with it but one and the same state: and then the citizens of the former will have the same privileges as those with whom they are united. The Roman history furnishes examples of each of these three kinds of submission,—1. the allies of the Roman people, such as the inhabitants of Latium were for a long time, who, in several respects, depended on Rome, but, in all others, were governed according to their own laws, and by their own magistrates;— 2. the countries reduced to Roman provinces, as Capua, whose inhabitants submitted absolutely to the Romans;* —3. the nations to which Rome granted the freedom of the city. In after times the emperors granted that privilege to all the nations subject to the empire, and thus transformed all their subjects into citizens.
§195. Right of the citizens when the nation submits to a foreign power.In the case of a real subjection to a foreign power, the citizens who do not approve this change are not obliged to submit to it:—they ought to be allowed to sell their effects and retire elsewhere. For my having entered into a society does not oblige me to follow its fate, when it dissolves itself in order to submit to a foreign dominion. I submitted to the society as it then was, to live in that society as the member of a sovereign state, and not in another: I am bound to obey it, while it remains a political society: but when it divests itself of that quality in order to re-ceive its laws from another state, it breaks the bond of union between its members, and releases them from their obligations.
§196. These compacts annulled by the failure of protection.When a nation has placed itself under the protection of another that is more powerful, or has even entered into subjection to it with a view to receiving its protection,—if the latter does not effectually protect the other in case of need, it is manifest, that, by failing in its engagements, it loses all the rights it had acquired by the convention, and that the other, being disengaged from the obligation it had contracted, re-enters into the possession of all its rights, and recovers its independence, or its liberty. It is to be observed, that this takes place even in cases where the protector does not fail in his engagements through a want of good faith, but merely through inability. For the weaker nation having submitted only for the sake of obtaining protection,—if the other proves unable to fulfil that essential condition, the compact is dissolved;—the weaker resumes its right, and may, if it thinks proper, have recourse to a more effectual protection.* Thus the dukes of Austria, who had acquired a right of protection, and in some sort a sovereignty over the city of Lucerne, being unwilling or unable to protect it effectually, that city concluded an alliance with the three first cantons; and the dukes having carried their complaint to the emperor, the inhabitants of Lucerne replied, “that they had used the natural right common to all men, by which every one is permitted to endeavour to procure his own safety when he is abandoned by those who are obliged to grant him assistance.”†
§197. Or by the infidelity of the party protected.The law is the same with respect to both the contracting parties: if the party protected do not fulfil their engagements with fidelity, the protector is discharged from his; he may afterwards refuse his protection, and declare the treaty broken, in case the situation of his affairs renders such a step advisable.
§198. And by the encroachments of the protector.In virtue of the same principle which discharges one of the contracting parties when the other fails in his engagements, if the more powerful nation should assume a greater authority over the weaker one than the treaty of protection or submission allows, the latter may consider the treaty as broken, and provide for its safety according to its own discretion. If it were otherwise, the inferior nation would lose by a convention which it had only formed with a view to its safety; and if it were still bound by its engagements when its protector abuses them and openly violates his own, the treaty would, to the weaker party, prove a downright deception. However, as some people maintain, that, in this case, the inferior nation has only the right of resistance and of imploring foreign aid,—and particularly as the weak cannot take too many precautions against the powerful, who are skilful in colouring over their enterprises,—the safest way is to insert in this kind of treaty a clause declaring it null and void whenever the superior power shall arrogate to itself any rights not expressly granted by the treaty.
§199. How the right of the nation protected is lost by its silence.But if the nation that is protected, or that has placed itself in subjection on certain conditions, does not resist the encroachments of that power from which it has sought support,—if it makes no opposition to them,—if it preserves a profound silence, when it might and ought to speak,—its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper. There would be no stability in the affairs of men, and especially in those of nations, if long possession, accompanied by the silence of the persons concerned, did not produce a degree of right. But it must be observed, that silence, in order to shew tacit consent, ought to be voluntary. If the inferior nation proves that violence and fear prevented its giving testimonies of its opposition, nothing can be concluded from its silence, which therefore gives no right to the usurper.
How a Nation may separate itself from the State of which it is a Member, or renounce its Allegiance to its Sovereign when it is not protected.
§200. Difference between the present case and those in the preceding chapter.We have said that an independent nation, which, without becoming a member of another state, has voluntarily rendered itself dependent on or subject to it in order to obtain protection, is released from its engagements as soon as that protection fails, even though the failure happen through the inability of the protector. But we are not to conclude that it is precisely the same case with every nation that cannot obtain speedy and effectual protection from its natural sovereign or the state of which it is a member. The two cases are very different. In the former, a free nation becomes subject to another state,—not to partake of all the other’s advantages, and form with it an absolute union of interests (for if the more powerful state were willing to confer so great a favour, the weaker one would be incorporated, not subjected),—but to obtain protection alone by the sacrifice of its liberty, without expecting any other return. When therefore the sole and indispensable condition of its subjection is (from what cause soever) not complied with, it is free from its engagements; and its duty towards itself obliges it to take fresh methods to provide for its own security. But the several members of one individual state, as they all equally participate in the advantages it procures, are bound uniformly to sup-port it: they have entered into mutual engagements to continue united with each other, and to have on all occasions but one common cause. If those who are menaced or attacked might separate themselves from the others in order to avoid a present danger, every state would soon be dismembered and destroyed. It is then essentially necessary for the safety of society, and even for the welfare of all its members, that each part should with all its might resist a common enemy, rather than separate from the others; and this is consequently one of the necessary conditions of the political association. The natural subjects of a prince are bound to him without any other reserve than the observation of the fundamental laws;—it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well: both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is then an essential and necessary condition of the political society, that the subjects remain united to their prince, as far as in their power.
§201. Duty of the members of a state, or subjects of a prince, who are in danger.When, therefore, a city or a province is threatened or actually attacked, it must not, for the sake of escaping the danger, separate itself from the state of which it is a member, or abandon its natural prince, even when the state or the prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts, in order to maintain itself in its present state. If it is overcome by force,—necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but that it may and even ought to prefer the former alternative? Modern usage is conformable to this decision:—a city submits to the enemy when it cannot expect safety from a vigorous resistance; it takes an oath of fidelity to him; and its sovereign lays the blame on fortune alone.
§202. Their right when they are abandoned.The state is obliged to defend and preserve all its members (§17); and the prince owes the same assistance to his subjects. If, therefore, the state or the prince refuses or neglects to succour a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The country of Zug, being attacked by the Swiss in 1352, sent for succour to the duke of Austria its sovereign; but that prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic confederacy.* The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens who were supported by the neighbouring nobility and the house of Austria, it made application to the head of the empire: but Charles IV.73 who was then emperor, declared to its deputies that he could not defend it;—upon which, Zurich secured its safety by an alliance with the Swiss.† The same reason has authorised the Swiss in general to separate themselves entirely from the empire, which never protected them in any emergency: they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Westphalia.
Of the Establishment of a Nation in a Country.
§203. Possession of a country by a nation.Hitherto we have considered the nation merely with respect to itself, without any regard to the country it possesses. Let us now see it established in a country, which becomes its own property and habitation. The earth belongs to mankind in general; destined by the creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and to derive from it whatever is necessary for their subsistence, and suitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing spontaneously, and without culture, sufficient support for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to possess it in common. It therefore became necessary that those tribes should fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labour, or disappointed of the fruits of their industry, apply themselves to render those lands fertile, and thence derive their subsistence. Such must have been the origin of the rights of property and dominion: and it was a sufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or that the different families of which it consists were previously scattered over the country, and there uniting, formed themselves into a political society,—that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.
§204. Its right over the parts in its possession.This right comprehends two things: 1. The domain, by virtue of which the nation alone may use this country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding.—2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.
§205. Acquisition of the sovereignty in a vacant country.When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty of it, at the same time with the domain. For since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its territory.
§206. Another manner of acquiring the empire in a free country.If a number of free families, scattered over an independent country, come to unite for the purpose of forming a nation or state, they all together acquire the sovereignty over the whole country they inhabit; for they were previously in possession of the domain,—a proportional share of it belonging to each individual family: and since they are willing to form together a political society, and establish a public authority which every member of the society shall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country.
§207. How a nation appropriates to itself a desert country.All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When therefore a nation finds a country uninhabited and without an owner, it may lawfully take possession of it: and after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.
§208. A question on this subject.But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine, that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will therefore not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to shew their having taken possession of them, they have paid as little regard to that empty ceremony, as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.*
§209. Whether it be lawful to possess a part of a country inhabited only by a few wandering tribes.There is another celebrated question, to which the discovery of the new world has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole? We have already observed (§81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had from the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not therefore deviate from the views of nature in confining the Indians within narrower limits. However, we cannot help praising the moderation of the English puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession.* This laudable example was followed by William Penn74 and the colony of quakers that he conducted to Pennsylvania.
§210. Colonies.When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever therefore the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.
Of our Native Country, and several Things that relate to it.
§211. What is our country.The whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country (§122), because our subject led us to treat of the love of our country,—a virtue so excellent and so necessary in a state. Supposing then this definition already known, it remains that we should explain several things that have a relation to this subject, and answer the questions that naturally arise from it.
§212. Citizens and natives.The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.
§213. Inhabitants.The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state, while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society, without participating in all its advantages. Their children follow the condition of their fathers; and as the state has given to these the right of perpetual residence, their right passes to their posterity.
§214. Naturalisation.A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalisation. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens,—for example, that of holding public offices,—and where, consequently, he has the power of granting only an imperfect naturalisation. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalise a single person, without the concurrence of the nation represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.
§215. Children of citizens, born in a foreign country.It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
§216. Children born at sea.As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels. And as, according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion, all the children born in the vessels of a nation are considered as born in its territory. For the same reason, those born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation: for the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.
§217. Children born in the armies of the state, or in the house of its minister at a foreign court.For the same reasons also, children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.
§218. Settlement.Settlement is a fixed residence in any place with an intention of always staying there. A man does not then establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly, or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus the envoy of a foreign prince has not his settlement at the court where he resides.
The natural or original settlement is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to chuse another. The acquired settlement (adscititium) is that where we settle by our own choice.
§219. Vagrants.Vagrants are people who have no settlement. Consequently those born of vagrant parents have no country, since a man’s country is the place where, at the time of his birth, his parents had their settlement (§122), or it is the state of which his father was then a member;—which comes to the same point: for to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a vagrant to be that of his child, while that vagrant is considered as not having absolutely renounced his natural or original settlement.
§220. Whether a person may quit his country.Many distinctions will be necessary in order to give a complete solution to the celebrated question, whether a man may quit his country or the society of which he is a member. 1. The children are bound by natural ties to the society in which they were born: they are under an obligation to shew themselves grateful for the protection it has afforded to their fathers, and are in a great measure indebted to it for their birth and education. They ought therefore to love it, as we have already shewn (§122),—to express a just gratitude to it, and requite its services as far as possible by serving it in turn. We have observed above (§212), that they have a right to enter into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it on making it a compensation for what it has done in his favour,* and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it. A man’s obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law, or by violence.
2. As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. When a society has not been formed for a determinate time, it is allowable to quit it, when that separation can take place without detriment to the society. A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. But we must here draw a distinction between what may in strict justice be done, and what is honourable and conformable to every duty,—in a word, between the internal and the external obligation. Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them: and this is the case of every citizen with respect to his country.
3. As to those who have the cowardice to abandon their country in a time of danger, and seek to secure themselves instead of defending it,— they manifestly violate the social compact, by which all the contracting parties engaged to defend themselves in an united body, and in concert: they are infamous deserters whom the state has a right to punish severely.*
§221. How a person may absent himself for a time.In a time of peace and tranquillity, when the country has no actual need of all her children, the very welfare of the state, and that of the citizens, requires that every individual be at liberty to travel on business, provided that he be always ready to return, whenever the public interest recalls him. It is not presumed that any man has bound himself to the society of which he is a member, by an engagement never to leave the country when the interest of his affairs requires it, and when he can absent himself without injury to his country.
§222. Variation of the political laws in this respect.The political laws of nations vary greatly in this respect. In some nations, it is at all times, except in case of actual war, allowed to every citizen to absent himself, and even to quit the country altogether, whenever he thinks proper, without alleging any reason for it. These must be obeyed.This liberty, contrary in its own nature to the welfare and safety of society, can no where be tolerated but in a country destitute of resources and incapable of supplying the wants of its inhabitants. In such a country there can only be an imperfect society; for civil society ought to be capable of enabling all its members to procure by their labour and industry all the necessaries of life:—unless it effects this, it has no right to require them to devote themselves entirely to it. In some other states, every citizen is left at liberty to travel abroad on business, but not to quit his country altogether, without the express permission of the sovereign. Finally, there are states where the rigour of the government will not permit any one whatsoever to go out of the country, without passports in form, which are even not granted without great difficulty. In all these cases it is necessary to conform to the laws, when they are made by a lawful authority. But in the last-mentioned case, the sovereign abuses his power, and reduces his subjects to an insupportable slavery, if he refuses them permission to travel for their own advantage, when he might grant it to them without inconvenience, and without danger to the state. Nay it will presently appear, that, on certain occasions, he cannot, under any pretext, detain persons who wish to quit the country with the intention of abandoning it for ever.
§223. Cases in which a citizen has a right to quit his country.There are cases in which a citizen has an absolute right to renounce his country, and abandon it entirely,—a right, founded on reasons derived from the very nature of the social compact.—1. If the citizen cannot procure subsistence in his own country, it is undoubtedly lawful for him to seek it elsewhere. For political or civil society being entered into only with a view of facilitating to each of its members the means of supporting himself, and of living in happiness and safety, it would be absurd to pretend that a member, whom it cannot furnish with such things as are most necessary, has not a right to leave it.
2. If the body of the society, or he who represents it, absolutely fail to discharge their obligations towards a citizen, the latter may withdraw himself. For if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfil his; for the contract is reciprocal between the society and its members. It is on the same principle also that the society may expel a member who violates its laws.
3. If the major part of the nation, or the sovereign who represents it, attempt to enact laws relative to matters in which the social compact cannot oblige every citizen to submission, those who are averse to these laws have a right to quit the society, and go settle elsewhere. For instance, if the sovereign, or the greater part of the nation, will allow but one religion in the state, those who believe and profess another religion have a right to withdraw, and to take with them their families and effects. For they cannot be supposed to have subjected themselves to the authority of men, in affairs of conscience;* and if the society suffers and is weakened by their departure, the blame must be imputed to the intolerant party: for it is they who fail in their observance of the social compact,— it is they who violate it, and force the others to a separation. We have elsewhere touched upon some other instances of this third case,—that of a popular state wishing to have a sovereign (§33),—and that of an independent nation taking the resolution to submit to a foreign power (§195).
§224. Emigrants.Those who quit their country for any lawful reason, with a design to settle elsewhere, are called emigrants, and take their families and property with them.
§225. Sources of their right.Their right to emigrate may arise from several sources. 1. In the cases we have just mentioned (§223), it is a natural right, which is certainly reserved to each individual in the very compact itself by which civil society was formed.
2. The liberty of emigration may, in certain cases, be secured to the citizens by a fundamental law of the state. The citizens of Neufchatel and Valangin in Switzerland may quit the country and carry off their effects at their own pleasure, without even paying any duties.
3. It may be voluntarily granted them by the sovereign.
4. Finally, this right may be derived from some treaty made with a foreign power, by which a sovereign has promised to leave full liberty to those of his subjects, who, for a certain reason, on account of religion for instance, desire to transplant themselves into the territories of that power. There are such treaties between the German princes, particularly for cases in which religion is concerned. In Switzerland likewise, a citizen of Bern who wishes to emigrate to Fribourg and there profess the religion of the place, and reciprocally a citizen of Fribourg who, for a similar reason, is desirous of removing to Bern, has a right to quit his native country, and carry off with him all his property.
It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his subjects under the head of his private property: he calculated their number, as he did that of his flocks; and, to the disgrace of human nature, this strange abuse is not yet every where eradicated.
§226. If the sovereign infringes their right, he injures them.If the sovereign attempts to molest those who have a right to emigrate, he does them an injury; and the injured individuals may lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic William,75 king of Prussia, grant his protection to the emigrant protestants of Saltzburgh.
§227. Supplicants.The name of supplicants is given to all fugitives who implore the protection of a sovereign against the nation or prince they have quitted. We cannot solidly establish what the law of nations determines with respect to them, until we have treated of the duties of one nation towards others.
§228. Exile and banishment.Finally, exile is another manner of leaving our country. An exile is a man driven from the place of his settlement, or constrained to quit it, but without a mark of infamy. Banishment is a similar expulsion, with a mark of infamy annexed.* Both may be for a limited time, or for ever. If an exile or banished man had his settlement in his own country, he is exiled or banished from his country. It is however proper to observe that common usage applies also the terms, exile and banishment, to the expulsion of a foreigner who is driven from a country where he had no settlement, and to which he is, either for a limited time or for ever, prohibited to return.
As a man may be deprived of any right whatsoever by way of punishment,—exile, which deprives him of the right of dwelling in a certain place, may be inflicted as a punishment: banishment is always one; for a mark of infamy cannot be set on any one, but with the view of punishing him for a fault, either real or pretended.
When the society has excluded one of its members by a perpetual banishment, he is only banished from the lands of that society, and it cannot hinder him from living wherever else he pleases; for, after having driven him out, it can no longer claim any authority over him. The contrary, however, may take place by particular conventions between two or more states. Thus every member of the Helvetic confederacy may banish its own subjects out of the territories of Switzerland in general; and in this case the banished person will not be allowed to live in any of the cantons, or in the territories of their allies.
Exile is divided into voluntary and involuntary. It is voluntary, when a man quits his settlement, to escape some punish-ment, or to avoid some calamity,—and involuntary, when it is the effect of a superior order.
Sometimes a particular place is appointed, where the exiled person is to remain during his exile; or a certain space is particularised, which he is forbid to enter. These various circumstances and modifications depend on him who has the power of sending into exile.
§229. The exile and banished man have a right to live somewhere.A man, by being exiled or banished, does not forfeit the human character, nor consequently his right to dwell somewhere on earth. He derives this right from nature, or rather from its author, who has destined the earth for the habitation of mankind; and the introduction of property cannot have impaired the right which every man has to the use of such things as are absolutely necessary,—a right which he brings with him into the world at the moment of his birth.
§230. Nature of this right.But though this right is necessary and perfect in the general view of it, we must not forget that it is but imperfect with respect to each particular country. For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury. What she owes to herself, the care of her own safety, gives her this right; and in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner (Prelim. §16). He cannot then settle by a full right, and as he pleases, in the place he has chosen, but must ask permission of the chief of the place; and if it is refused, it is his duty to submit.
§231. Duty of nations towards them.However, as property could not be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary,—no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But if particular and substantial reasons prevent her from affording him an asylum, this man has no longer any right to demand it,—because, in such a case, the country inhabited by the nation cannot, at the same time, serve for her own use, and that of this foreigner. Now, supposing even that things are still in common, nobody can arrogate to himself the use of a thing which actually serves to supply the wants of another. Thus a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles. Thus it ought even absolutely to reject them, if they are infected with a contagious disease. Thus also it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, to follow, in this respect, the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy;—it should not be carried so far as to refuse a retreat to the unfortunate, for slight reasons, and on groundless and frivolous fears. The means of tempering it will be never to lose sight of that charity and commiseration which are due to the unhappy. We must not suppress those feelings even for those who have fallen into misfortune through their own fault. For we ought to hate the crime, but love the man, since all mankind ought to love each other.
§232. A nation cannot punish them for faults committed out of its territories,If an exile or banished man has been driven from his country for any crime, it does not belong to the nation in which he has taken refuge, to punish him for that fault committed in a foreign country. For nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety (§169); whence it follows, that we cannot punish any but those by whom we have been injured.
§233. except such as affect the common safety of mankind.But this very reason shews, that, although the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations, by trampling under foot the foundations of their common safety. Thus pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed.
Of public, common, and private Property.
§234. What the Romans called res communes.Let us now see what is the nature of the different things contained in the country possessed by a nation, and endeavour to establish the general principles of the law by which they are regulated. This subject is treated by civilians under the title de rerum divisione. There are things which in their own nature cannot be possessed; there are others, of which nobody claims the property, and which remain common, as in their primitive state, when a nation takes possession of a country: the Roman lawyers called these things res communes, things common: such were, with them, the air, the running water, the sea, the fish, and wild beasts.
§235. Aggregate wealth of a nation, and its divisions.Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the aggre-gate mass of its wealth. But the nation does not possess all those things in the same manner. Those not divided between particular communities, or among the individuals of a nation, are called public property. Some are reserved for the necessities of the state, and form the demesne of the crown, or of the republic: others remain common to all the citizens, who take advantage of them, each according to his necessities, or according to the laws which regulate their use; and these are called common property.—There are others that belong to some body or community, termed joint property, res universitatis; and these are, with respect to this body in particular, what the public property is with respect to the whole nation. As the nation may be considered as a great community, we may indifferently give the name of common property to those things that belong to it in common, in such a manner that all the citizens may make use of them, and to those that are possessed in the same manner by a body or community: the same rules hold good with respect to both.—Finally, the property possessed by individuals is termed private property, res singulorum.
§236. Two ways of acquiring public property.When a nation in a body takes possession of a country, every thing that is not divided among its members remains common to the whole nation, and is called public property. There is a second way whereby a nation, and, in general, every community, may acquire possessions, viz. by the will of whosoever thinks proper to convey to it, under any title whatsoever, the domain or property of what he possesses.
§237. The revenues of the public property are naturally at the sovereign’s disposal.As soon as the nation commits the reins of government to the hands of a prince, it is considered as committing to him, at the same time, the means of governing. Since therefore the income of the public property, of the domain of the state, is destined for the expenses of government, it is naturally at the prince’s disposal, and ought always to be considered in this light, unless the nation has, in express terms, excepted it in conferring the supreme authority, and has provided in some other manner for its disposal, and for the necessary expenses of the state, and the support of the prince’s person and household. Whenever therefore the prince is purely and simply invested with the sovereign authority, it includes a full discretional power to dispose of the public revenues. The duty of the sovereign indeed obliges him to apply those revenues only to the necessities of the state; but he alone is to determine the proper application of them, and is not accountable for them to any person.
§238. The nation may grant him the use and property of its common possessions,The nation may invest the superior with the sole use of its common possessions, and thus add them to the domain of the state. It may even cede the property of them to him. But this cession of the use or property requires an express act of the proprietor, which is the nation. It is difficult to found it on a tacit consent, because fear too often hinders the subjects from protesting against the unjust encroachments of the sovereign.
§239. or allow him the domain, and reserve to itself the use of them.The people may even allow the superior the domain of the things they possess in common, and reserve to themselves the use of them in the whole or in part. Thus the domain of a river, for instance, may be ceded to the prince, while the people reserve to themselves the use of it for navigation, fishing, the watering of cattle, &c. They may also allow the prince the sole right of fishing, &c. in that river. In a word, the people may cede to the superior whatever right they please over the common possessions of the nation; but all those particular rights do not naturally and of themselves flow from the sovereignty.
§240. Taxes.If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. All the members of civil society being equally obliged to contribute, according to their abilities, to its advantage and safety,—they cannot refuse to furnish the subsidies necessary to its preservation, when they are demanded by lawful authority.
§241. The nation may reserve to itself the right of imposing them.Many nations have been unwilling to commit to the prince a trust of so delicate a nature, or to grant him a power that he may so easily abuse. In establishing a domain for the support of the sovereign and the ordinary expenses of the state, they have reserved to themselves the right of providing, by themselves or by their representatives, for extraordinary wants, in imposing taxes payable by all the inhabitants. In England, the king lays the necessities of the state before the parliament; that body, composed of the representatives of the nation, deliberates, and, with the concurrence of the king, determines the sum to be raised, and the manner of raising it. And of the use the king makes of the money thus raised, that same body oblige him to render them an account.
§242. Of the sovereign who has this power.In other states where the sovereign possesses the full and absolute authority, it is he alone that imposes taxes, regulates the manner of raising them, and makes use of them as he thinks proper, without giving an account to any body. The French king at present enjoys this authority, with the simple formality of causing his edicts to be registered by the parliament; and that body has a right to make humble remonstrances, if it sees any inconveniences attending the imposition ordered by the prince:—a wise establishment for causing truth and the cries of the people to reach the ears of the sovereign, and for setting some bounds to his extravagance, or to the avidity of the ministers and persons concerned in the revenue.*
§243. Duties of the prince with respect to taxes.The prince who is invested with the power of taxing his people ought by no means to consider the money thus raised as his own property. He ought never to lose sight of the end for which this power was granted him: the nation was willing to enable him to provide, as it should seem best to his wisdom, for the necessities of the state. If he diverts this money to other uses,—if he consumes it in idle luxury, to gratify his pleasures, to satiate the avarice of his mistresses and favourites,—we hesitate not to declare to those sovereigns who are still capable of listening to the voice of truth, that such a one is not less guilty, nay, that he is a thousand times more so, than a private person who makes use of his neighbours’ property to gratify his irregular passions. Injustice, though screened from punishment, is not the less shameful.
§244.Eminent domain annexed to the sovereignty.Every thing in the political society ought to tend to the good of the community; and since even the persons of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property subject to its authority. It is even to be presumed, that, when the nation takes possession of a country, the property of certain things is given up to individuals only with this reserve. The right which belongs to the society, or to the sovereign, of disposing, in case of necessity and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evident that this right is, in certain cases, necessary to him who governs, and consequently is a part of the empire or sovereign power, and ought to be placed in the number of the prerogatives of majesty (§45). When therefore the people confer the empire on any one, they at the same time invest him with the eminent domain, unless it be expressly reserved. Every prince who is truly sovereign is invested with this right when the nation has not excepted it,—however limited his authority may be in other respects.
If the sovereign disposes of the public property in virtue of his eminent domain, the alienation is valid, as having been made with sufficient powers.
When, in a case of necessity, he disposes in like manner of the possessions of a community or an individual, the alienation will, for the same reason, be valid. But justice requires that this community or this individual be indemnified at the public charge: and if the treasury is not able to bear the expense, all the citizens are obliged to contribute to it; for the burthens of the state ought to be supported equally, or in a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel.
§245. Government of public property.Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property,—that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to every thing that passes in the state, wherever it is transacted; and consequently the sovereign commands in all public places, on rivers, on highways, in deserts, &c. Every thing that happens there is subject to his authority.
§246. The superior may make laws with respect to the use of things possessed in common.In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used,—as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and consequently to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus the sovereign may establish wise laws with respect to hunting and fishing,—forbid them in the seasons of propagation,—prohibit the use of certain nets, and of every destructive method, &c. But as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them: and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.
§247. Alienation of the property of a corporation.A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they owe to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away;—which gives the prince, intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property either from their predecessors, or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire and free property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity:—and whatever property they may have received from the sovereign, is presumed to be of that nature.
§248. Use of common property.All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants, or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage by assigning him a less share than that of the others.
§249. How each member is to enjoy it.All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts it, he arrogates to himself a private right, derogatory to the common right of the public.
§250. Right of anticipation in the use of it.The right of anticipation (jus praeventionis) ought to be faithfully observed in the use of common things which cannot be used by several persons at the same time. This name is given to the right which the first-comer acquires, to the use of things of this nature. For instance, if I am actually drawing water from a common or public well, another who comes after me cannot drive me away to draw out of it himself: and he ought to wait till I have done. For I make use of my right in drawing that water, and nobody can disturb me: a second, who has an equal right, cannot assert it to the prejudice of mine; to stop me by his arrival, would be arrogating to himself a better right than he allows me, and thereby violating the law of equality.
§251. The same right in another case.The same rule ought to be observed in regard to those common things which are consumed in using them. They belong to the person who first takes possession of them with the intention of applying them to his own use; and a second, who comes after, has no right to take them from him. I repair to a common forest, and begin to fell a tree: you come in afterwards, and would wish to have the same tree: you cannot take it from me; for this would be arrogating to yourself a right superior to mine, whereas our rights are equal. The rule in this case is the same as that which the law of nature prescribes in the use of the productions of the earth, before the introduction of property.
§252. Preservation and repairs of common possessions.The expenses necessary for the preservation or reparation of the things that belong to the public, or to a community, ought to be equally borne by all who have a share in them, whether the necessary sums be drawn from the common coffer, or that each individual contributes his quota. The nation, the corporation, and, in general, every collective body, may also establish extraordinary taxes, imposts, or annual contributions, to defray those expenses,—provided there be no oppressive exaction in the case, and that the money so levied be faithfully applied to the use for which it was raised. To this end also, as we have before observed (§103), toll-duties are lawfully established. High-ways, bridges, and causeways, are things of a public nature, from which all who pass over them derive advantage: it is therefore just that all those passengers should contribute to their support.
§253. Duty and right of the sovereign in this respect.We shall see presently that the sovereign ought to provide for the preservation of the public property. He is no less obliged, as the conductor of the whole nation, to watch over the preservation of the property of a corporation. It is the interest of the state at large that a corporation should not fall into indigence, by the ill conduct of its members for the time being. And as every obligation generates the correspondent right which is necessary to discharge it, the sovereign has here a right to oblige the corporation to conform to their duty. If therefore he perceives, for instance, that they suffer their necessary buildings to fall to ruin, or that they destroy their forests, he has a right to prescribe what they ought to do, and to put his orders in force.
§254. Private property.We have but a few words to say with respect to private property: every proprietor has a right to make what use he pleases of his own substance, and to dispose of it as he pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family. But he must take care not to extend this right of inspection so far as to lay a restraint on his subjects in the administration of their affairs;— which would be no less injurious to the true welfare of the state than to the just liberty of the citizens. The particulars of this subject belong to public law and politics.
§255. The sovereign may subject it to regulations of police.It must also be observed, that individuals are not so perfectly free in the economy or government of their affairs, as not to be subject to the laws and regulations of police made by the sovereign. For instance, if vineyards are multiplied to too great an extent in a country which is in want of corn, the sovereign may forbid the planting of the vine in fields proper for tillage; for here the public welfare and the safety of the state are concerned. When a reason of such importance requires it, the sovereign or the magistrate may oblige an individual to sell all the provisions in his possession above what are necessary for the subsistence of his family, and may fix the price he shall receive for them. The public authority may and ought to hinder monopolies, and suppress all practices tending to raise the price of provisions,—to which practices the Romans applied the expressions annonam incendere, comprimere, vexare.76
§256. Inheritances.Every man may naturally chuse the person to whom he would leave his property after his death, as long as his right is not limited by some indispensable obligation,—as, for instance, that of providing for the subsistence of his children. The children also have naturally a right to inherit their father’s property in equal portions. But this is no reason why particular laws may not be established in a state, with regard to testaments and inheritances,—a respect being however paid to the essential laws of nature. Thus, by a rule established in many places with a view to support noble families, the eldest son is, of right, his father’s principal heir. Lands, perpetually appropriated to the eldest male heir of a family, belong to him by virtue of another right, which has its source in the will of the person, who, being sole owner of those lands, has bequeathed them in that manner.
Of the Alienation of the public Property, or the Domain, and that of a Part of the State.
§257. The nation may alienate its public property.The nation being the sole mistress of the property in her possession, may dispose of it as she thinks proper, and may lawfully alienate or mortgage it. This right is a necessary consequence of the full and absolute domain: the exercise of it is restrained by the law of nature, only with respect to proprietors who have not the use of reason necessary for the management of their affairs; which is not the case with a nation. Those who think otherwise cannot allege any solid reason for their opinion; and it would follow from their principles, that no safe contract can be entered into with any nation;—a conclusion, which attacks the foundation of all public treaties.
§258. Duties of a nation in this respect.But it is very just to say that the nation ought carefully to preserve her public property,—to make a proper use of it,—not to dispose of it without good reasons, nor to alienate or mortgage it but for a manifest public advantage, or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to herself. The public property is extremely useful and even necessary to the nation; and she cannot squander it improperly, without injuring herself, and shamefully neglecting the duty of self-preservation. I speak of the public property strictly so called, or the domain of the state. Alienating its revenues is cutting the sinews of government. As to the property common to all the citizens, the nation does an injury to those who derive advan-tage from it, if she alienates it without necessity, or without cogent reasons. She has a right to do this as proprietor of these possessions; but she ought not to dispose of them except in a manner that is consistent with the duties which the body owes to its members.
§259. Duties of the prince.The same duties lie on the prince, the director of the nation: he ought to watch over the preservation and prudent management of the public property,—to stop and prevent all waste of it,—and not suffer it to be applied to improper uses.
§260. He cannot alienate the public property.The prince, or the superior of the society, whatever he is, being naturally no more than the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or mortgage the public property. The general rule then is, that the superior cannot dispose of the public property, as to its substance,—the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his successor, or by the nation. This is the law generally received in France; and it was upon this principle that the duke of Sully* advised Henry IV. to resume the possession of all the domains of the crown alienated by his predecessors.
§261. The nation may give him a right to it.The nation having the free disposal of all the property belonging to her (§257), may convey her right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property. But this right not being necessary to the conductor of the state, to enable him to render the people happy by his government,—it is not to be presumed, that the nation have given it to him; and if they have not made an express law for that purpose, we are to conclude that the prince is not invested with it, unless he has received full, unlimited, and absolute authority.
§262. Rules on this subject with respect to treaties between nation and nation.The rules we have just established relate to alienations of public property in favour of individuals. The question assumes a different aspect when it relates to alienations made by one nation to another:* it requires other principles to decide it in the different cases that may present themselves. Let us endeavour to give a general theory of them.
1. It is necessary that nations should be able to treat and contract validly with each other, since they would otherwise find it impossible to bring their affairs to an issue, or to obtain the blessings of peace with any degree of certainty. Whence it follows, that when a nation has ceded any part of its property to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of property. This principle cannot be shaken by any fundamental law, by which a nation might pretend to deprive themselves of the power of alienating what belongs to them: for this would be depriving themselves of all power to form contracts with other nations, or attempting to deceive them. A nation with such a law ought never to treat concerning its property: if it is obliged to it by necessity, or determined to do it for its own advantage, the moment it broaches a treaty on the subject, it renounces its fundamental law. It is seldom disputed that an entire nation may alienate what belongs to itself: but it is asked, whether its conductor, its sovereign, has this power? The question may be determined by the fundamental laws. But if the laws say nothing directly on this subject, then we have recourse to our second principle, viz.
2. If the nation has conferred the full sovereignty on its conductor,— if it has intrusted to him the care, and, without reserve, given him the right, of treating and contracting with other states, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation; what he does is considered as the act of the nation itself; and though he is not the owner of the public property, his alienations of it are valid, as being duly authorised.
§263. Alienation of a part of the state.The question becomes more difficult, when it relates, not to the alienation of some parts of the public property, but to the dismembering of the nation or state itself,—the cession of a town or a province that constitutes a part of it. This question however admits of a sound decision on the same principles. A nation ought to preserve itself (§16),—it ought to preserve all its members,—it cannot abandon them; and it is under an engagement to support them in their rank as members of the nation (§17). It has not then a right to traffic with their rank and liberty, on account of any advantages it may expect to derive from such a negotiation. They have joined the society for the purpose of being members of it:—they submit to the authority of the state, for the purpose of promoting in concert their common welfare and safety, and not of being at its disposal, like a farm or an herd of cattle. But the nation may lawfully abandon them in a case of extreme necessity; and she has a right to cut them off from the body, if the public safety requires it. When therefore, in such a case, the state gives up a town or a province to a neighbour or to a powerful enemy, the cession ought to remain valid as to the state, since she had a right to make it: nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over them.
§264. Rights of the dismembered party.But this province or town, thus abandoned and dismembered from the state, is not obliged to receive the new master whom the state attempts to set over it. Being separated from the society of which it was a member, it resumes all its original rights; and if it be capable of defending its liberty against the prince who would subject it to his authority, it may lawfully resist him. Francis I.77 having engaged by the treaty of Madrid78 to cede the duchy of Burgundy to the emperor Charles V.79 the states of that province declared, “that, having never been subject but to the crown of France, they would die subject to it; and that if the king abandoned them, they would take up arms, and endeavour to set themselves at liberty, rather than pass into a new state of subjection.”* It is true, subjects are seldom able to make resistance on such occasions; and, in general, their wisest plan will be to submit to their new master, and endeavour to obtain the best terms they can.
§265. Whether the prince has power to dismember the state.Has the prince—or the superior, of whatever kind—a power to dismember the state?—We answer as we have done above with respect to the domain:—if the fundamental laws forbid all dismemberment by the sovereign, he cannot do it without the concurrence of the nation or its representatives. But if the laws are silent, and if the prince has received a full and absolute authority, he is then the depositary of the rights of the nation, and the organ by which it declares its will. The nation ought never to abandon its members but in a case of necessity, or with a view to the public safety, and to preserve itself from total ruin; and the prince ought not to give them up except for the same reasons. But since he has received an absolute authority, it belongs to him to judge of the necessity of the case, and of what the safety of the state requires.
On occasion of the above-mentioned treaty of Madrid, the principal persons in France, assembled at Cognac80 after the king’s return, unanimously resolved, “that his authority did not extend so far as to dismember the crown.”* The treaty was declared void, as being contrary to the fundamental law of the kingdom: and indeed it had been concluded without sufficient powers: for as the laws in express terms refused to the king the power of dismembering the kingdom, the concurrence of the nation was necessary for that purpose; and it might give its consent by the medium of the states-general. Charles V. ought not to have released his prisoner before those very states had approved the treaty; or rather, making a more generous use of his victory, he should have imposed less rigorous conditions, such as Francis I. would have been able to comply with, and such as he could not, without dishonour, have refused to perform. But now that there are no longer any meetings of the states-general in France, the king remains the sole organ of the state, with respect to other powers: these latter have a right to take his will for that of all France; and the cessions the king might make them, would remain valid, in virtue of the tacit consent by which the nation has vested the king with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the crown of France. For greater security, however, other powers have often required that their treaties should be registered in the parliament of Paris: but at present even this formality seems to be laid aside.
Of Rivers, Streams, and Lakes.
§266. A river that separates two territories.When a nation takes possession of a country with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c. But it may happen that the country is bounded and separated from another by a river;—in which case, it is asked, to whom this river belongs? It is manifest from the principles established in Chap. XVIII. that it ought to belong to the nation who first took possession of it. This principle cannot be denied; but the difficulty is, to make the application. It is not easy to determine which of the two neighbouring nations was the first to take possession of a river that separates them.—For the decision of such questions, the rules which may be deduced from the principles of the law of nations, are as follow:—
1. When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it to herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. When there is question of a very broad river, this presumption admits not of a doubt, so far at least as relates to a part of the river’s breadth; and the strength of the presumption increases or diminishes in an inverse ratio with the breadth of the river: for the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation.
2. If that nation has made any use of the river, as for navigation or fishing, it is presumed with the greater certainty, that she has resolved to appropriate the river to her own use.
3. If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference: and in this case, the dominion of each will extend to the middle of the river.
4. A long and undisputed possession establishes the right of nations; otherwise there could be no peace, no stability between them: and notorious facts must be admitted to prove the possession. Thus, when, from time immemorial, a nation has without contradiction exercised the sovereignty upon a river which forms her boundary, nobody can dispute with that nation the supreme dominion over the river in question.
5. Finally, if treaties determine any thing on this question, they must be observed. To decide it by accurate and express stipulations, is the safest mode: and such is, in fact, the method taken by most powers at present.
§267. Of the bed of a river which is dried up or takes another course.If a river leaves its bed, whether it be dried up or takes its course elsewhere, the bed belongs to the owner of the river; for the bed is a part of the river; and he who had appropriated to himself the whole, had necessarily appropriated to himself all its parts.
§268. The right of alluvion.If a territory which terminates on a river has no other boundary than that river, it is one of those territories that have natural or indeterminate bounds (territoria arcifinia), and it enjoys the right of alluvion; that is to say,—every gradual increase of soil, every addition which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it, and belongs to the same owner. For if I take possession of a piece of land, declaring that I will have for its boundary the river which washes its side,—or if it is given to me upon that footing,—I thus acquire beforehand the right of alluvion; and consequently I alone may appropriate to myself whatever additions the current of the river may insensibly make to my land:—I say “insensibly,” because in the very uncommon case, called avulsion, when the violence of the stream separates a considerable part from one piece of land and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner. The civil laws have thus provided against and decided this case when it happens between individual and individual; they ought to unite equity with the welfare of the state, and the care of preventing litigations.
In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself; because nothing is more natural than to take a river for a boundary, when a settlement is made; and wherever there is a doubt, that is always to be presumed, which is most natural and most probable.
§269. Whether alluvion produces any change in the right to a river.As soon as it is determined that a river constitutes the boundary-line between two territories, whether it remains common to the inhabitants on each of its banks, or whether each shares half of it,—or, finally, whether it belongs entirely to one of them,—their rights with respect to the river are in no wise changed by the alluvion. If therefore it happens that, by a natural effect of the current, one of the two territories receives an increase, while the river gradually encroaches on the opposite bank,— the river still remains the natural boundary of the two territories, and, notwithstanding the progressive changes in its course, each retains over it the same rights which it possessed before; so that, if, for instance, it be divided in the middle between the owners of the opposite banks, that middle, though it changes its place, will continue to be the line of separation between the two neighbours. The one loses, it is true, while the other gains: but nature alone produces this change: she destroys the land of the one, while she forms new land for the other. The case cannot be otherwise determined, since they have taken the river alone for their limits.
§270. What is the case when the river changes its bed.But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course, and runs into one of the two neighbouring states, the bed which it has abandoned becomes thenceforward their boundary, and remains the property of the former owner of the river (§267): the river itself is, as it were, anihilated in all that part, while it is reproduced in its new bed, and there belongs only to the state in which it flows.
This case is very different from that of a river which changes its course without going out of the same state. The latter, in its new course, continues to belong to its former owner, whether that owner be the state or any individual to whom the state has given it,—because rivers belong to the public, in whatever part of the country they flow. Of the bed which it has abandoned, a moiety accrues to the contiguous lands on each side, if they are lands that have natural boundaries with the right of alluvion. That bed (notwithstanding what we have said in §267) is no longer the property of the public, because of the right of alluvion vested in the owners of its banks, and because the public held possession of the bed, only on account of its containing a river. But if the adjacent lands have not natural boundaries, the public still retains the property of the bed. The new soil over which the river takes its course is lost to the proprietor, because all the rivers in the country belong to the public.
§271. Works tending to turn the current,It is not allowable to raise any works on the bank of a river, which have a tendency to turn its course, and to cast it upon the opposite bank: this would be promoting our own advantage at our neighbour’s expense. Each can only secure himself, and hinder the current from undermining and carrying away his land.
§272. or, in general, prejudicial to the rights of others.In general, no person ought to build on a river, any more than elsewhere, any work that is prejudicial to his neighbour’s rights. If a river belongs to one nation, and another has an incontestable right to navigate it, the former cannot erect upon it a dam or a mill which might render it unfit for navigation. The right which the owners of the river possess in this case is only that of a limited property; and, in the exercise of it, they are bound to respect the rights of others.
§273. Rules in relation to interfering rights.But when two different rights to the same thing happen to clash with each other, it is not always easy to determine which ought to yield to the other: the point cannot be satisfactorily decided, without attentively considering the nature of the rights, and their origin. For example, a river belongs to me, but you have a right to fish in it: and the question is, whether I may erect mills on my river, whereby the fishery will become more difficult and less advantageous? The nature of our rights seems to determine the question in the affirmative.—I, as proprietor, have an essential right over the river itself:—you have only a right to make use of it,—a right which is merely accessory, and dependent on mine: you have but a general right to fish as you can in my river, such as you happen to find it, and in whatever state I may think fit to possess it. I do not deprive you of your right by erecting my mills: it still exists in the general view of it; and if it becomes less useful to you, it is by accident, and because it is dependent on the exercise of mine.
The case is different with respect to the right of navigation, of which we have spoken. This right necessarily supposes that the river shall remain free and navigable, and therefore excludes every work that will entirely interrupt its navigation.
The antiquity and origin of the rights serve, no less than their nature, to determine the question. The more ancient right, if it be absolute, is to be exerted in its full extent, and the other only so far as it may be extended without prejudice to the former; for it could only be established on this footing, unless the possessor of the first right has expressly consented to its being limited.
In the same manner, rights ceded by the proprietor of any thing are considered as ceded without prejudice to the other rights that belong to him, and only so far as they are consistent with these latter, unless an express declaration, or the very nature of the right, determine it otherwise. If I have ceded to another the right of fishing in my river, it is manifest that I have ceded it without prejudice to my other rights, and that I remain free to build on that river such works as I think proper, even though they should injure the fishery, provided they do not altogether destroy it. A work of this latter kind, such as a dam that would hinder the fish from ascending it, could not be built but in a case of necessity, and on making, according to circumstances, an adequate compensation to the person who has a right to fish there.
§274. Lakes.What we have said of rivers and streams, may be easily applied to lakes. Every lake, entirely included in a country, belongs to the nation that is the proprietor of that country; for, in taking possession of a territory, a nation is considered as having appropriated to itself every thing included in it: and as it seldom happens that the property of a lake of any considerable extent falls to the share of individuals, it remains common to the nation. If this lake is situated between two states, it is presumed to be divided between them at the middle, while there is no title, no constant and manifest custom, to determine otherwise.
§275. Increase of a lake.What has been said of the right of alluvion in speaking of rivers, is also to be understood as applying to lakes. When a lake, which bounds a state, belongs entirely to it, every increase in the extent of that lake falls under the same predicament as the lake itself; but it is necessary that the increase should be insensible, as that of land in alluvion, and moreover that it be real, constant, and complete. To explain myself more fully,—1. I speak of insensible increase: this is the reverse of alluvion: the question here relates to the increase of a lake, as in the other case to an increase of soil. If this increase be not insensible,—if the lake, overflowing its banks, inundates a large tract of land, this new portion of the lake, this tract thus covered with water, still belongs to its former owner. Upon what principles can we found the acquisition of it in behalf of the owner of the lake? The space is very easily identified, though it has changed its nature: and it is too considerable to admit a presumption that the owner had no intention to preserve it to himself, notwithstanding the changes that might happen to it.
But, 2. If the lake insensibly undermines a part of the opposite territory, destroys it, and renders it impossible to be known, by fixing itself there, and adding it to its bed, that part of the territory is lost to its former owner; it no longer exists; and the whole of the lake thus increased still belongs to the same state as before.
3. If some of the lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil, which the lake invades by little and little, belongs to the owner of the lake, and is lost to its former proprietor, is because the proprietor has no other boundary than the lake, nor any other marks than its banks, to ascertain how far his possessions extend. If the water advances insensibly, he loses; if it retires in like manner, he gains: such must have been the intention of the nations who have respectively appropriated to themselves the lake and the adjacent lands:—it can scarcely be supposed that they had any other intention. But a territory overflowed for a time, is not confounded with the rest of the lake: it can still be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become subject to a different government during the inundation, and return to its former sovereign as soon as the waters were dried up.
4. For the same reasons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the first by a canal,—this new body of water, and the canal, belong to the owner of the country in which they are formed. For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing so considerable a tract of land in case of its happening to be invaded by the waters of an adjoining lake.
It must be observed that we here treat the question as arising between two states: it is to be decided by other principles when it relates to proprietors who are members of the same state. In the latter case, it is not merely the bounds of the soil, but also its nature and use, that determine the possession of it. An individual, who possesses a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a person who has, for instance, the right of fishing in the lake, may exert his right in this new extent: if the waters retire, the field is restored to the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake belongs to the public, because all lakes belong to the public.
§276. Land formed on the banks of a lake.The same principles shew, that if the lake insensibly forms an accession of land on its banks, either by retiring or in any other manner, this increase of land belongs to the country which it joins, when that country has no other boundary than the lake. It is the same thing as alluvion on the banks of a river.
§277. Bed of a lake dried up.But if the lake happened to be suddenly dried up, either totally or in a great part of it, the bed would remain in the possession of the sovereign of the lake; the nature of the soil, so easily known, sufficiently marking out the limits.
§278. Jurisdiction over lakes and rivers.The empire or jurisdiction over lakes and rivers is subject to the same rules as the property of them, in all the cases which we have examined. Each state naturally possesses it over the whole or the part, of which it possesses the domain. We have seen (§245) that the nation, or its sovereign, commands in all places in its possession.
Of the Sea.
§279. The sea and its use.In order to complete the exposition of the principles of the law of nations with respect to the things a nation may possess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c. for the making of salt, and, finally, for the establishment of places of retreat and security for vessels.
§280. Whether the sea can be possessed, and its dominion appropriated.The open sea is not of such a nature as to admit the holding possession of it, since no settlement can be formed on it, so as to hinder others from passing. But a nation powerful at sea may forbid others to fish in it and to navigate it, declaring that she appropriates to herself the dominion over it, and that she will destroy the vessels that shall dare to appear in it without her permission. Let us see whether she has right to do this.
§281. Nobody has a right to appropriate to himself the use of the open sea.It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent and inexhaustible; that is to say—he who navigates or fishes in the open sea, does no injury to any one, and the sea, in these two respects, is sufficient for all mankind. Now nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible, and sufficient for all. For since those things, while common to all, are sufficient to supply the wants of each,— whoever should, to the exclusion of all other participants, attempt to render himself sole proprietor of them, would unreasonably wrest the bounteous gifts of nature from the parties excluded. The earth no longer furnishing without culture the things necessary or useful to the human race, who were extremely multiplied, it became necessary to introduce the right of property, in order that each might apply himself with more success to the cultivation of what had fallen to his share, and multiply by his labour the necessaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reason cannot apply to things which are in themselves inexhaustible; and consequently it cannot furnish any just grounds for seizing the exclusive possession of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own safety would authorise them to reduce that thing under their own dominion if possible, in order to restrict the use of it by such precautions as prudence might dictate to them. But this is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation therefore has a right to take possession of the open sea, or claim the sole use of it, to the exclusion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the East-Indies;* but the other maritime powers gave themselves little trouble about such a pretension.
§282. The nation that attempts to exclude another, does it an injury.The right of navigating and fishing in the open sea being then a right common to all men, the nation that attempts to exclude another from that advantage, does her an injury, and furnishes her with sufficient grounds for commencing hostilities, since nature authorises a nation to repel an injury,—that is, to make use of force against whoever would deprive her of her rights.
§283. It even does an injury to all nations.Nay more,—a nation, which, without a legitimate claim, would arrogate to itself an exclusive right to the sea, and support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in forming a general combination against it, in order to repress such an attempt. Nations have the greatest interest in causing the law of nations, which is the basis of their tranquillity, to be universally respected. If any one openly tramples it under foot, they all may and ought to rise up against him; and, by uniting their forces to chastise the common enemy, they will discharge their duty towards themselves, and towards human society, of which they are members (Prelim. §22).
§284. It may acquire an exclusive right by treaties,However, as every one is at liberty to renounce his right, a nation may acquire exclusive rights of navigation and fishing, by treaties, in which other nations renounce, in its favour, the rights they derive from nature. The latter are obliged to observe their treaties; and the nation they have favoured has a right to maintain by force the possession of its advantages. Thus the house of Austria has renounced, in favour of England and Holland, the right of sending vessels from the Netherlands to the East-Indies. In Grotius, de Jure Belli & Pacis, Lib. II. Cap. III. §15, may be found many instances of similar treaties.
§285. but not by prescription and long use,As the rights of navigation and of fishing, and other rights which may be exercised on the sea, belong to the class of those rights of mere ability (jura merae facultatis) which are imprescriptible (§95),—they cannot be lost for want of use. Consequently, although a nation should happen to have been, from time immemorial, in sole possession of the navigation or fishery in certain seas, it cannot, on this foundation, claim an exclusive right to those advantages. For though others have not made use of their common right to navigation and fishery in those seas, it does not thence follow that they have had any intention to renounce it; and they are entitled to exert it whenever they think proper.
§286. unless by virtue of a tacit agreement.But it may happen, that the non-usage of the right may assume the nature of a consent or tacit agreement, and thus become a title in favour of one nation against another. When a nation, that is in possession of the navigation and fishery in certain tracts of sea, claims an exclusive right to them, and forbids all participation on the part of other nations,—if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right, in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.
§287. The sea near the coasts may become a property.The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now in all these respects its use is not inexhaustible; wherefore the nation to whom the coasts belong may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt, that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of fish is the only object, the fishery appears less liable to be exhausted,—yet if a nation have on their coast a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighbouring nations? But if, so far from taking possession of it, the nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it; it has left that fishery in its primitive freedom, at least with respect to those who have been accustomed to take advantage of it. The English not having originally taken exclusive possession of the herring-fishery on their coasts, it is become common to them with other nations.
§288. Another reason for appropriating the sea bordering on the coasts.A nation may appropriate to herself those things, of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their right. It is of considerable importance to the safety and welfare of the state, that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation. During the war between Spain and the United Provinces,81 James I. king of England,82 marked out, along his coasts, certain boundaries within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships that should enter or sail out of the ports.* These parts of the sea, thus subject to a nation, are comprehended in her territory; nor must any one navigate them without her consent. But to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true, that the state itself is sole judge of what is proper to be done in every particular case that occurs: and if it judges amiss, it is to blame; but the others are bound to submit. It is otherwise, however, in cases of necessity,—as, for instance, when a vessel is obliged to enter a road which belongs to you, in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is, as we shall shew more at large, a remnant of the primitive freedom, of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission.
§289. How far this possession may extend.It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus* pretends, that, according to the common right of all maritime nations, the prince’s dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulations it pleases, so far as respects the transactions of the citizens with each other, or their concerns with the sovereign: but between nation and nation, all that can reasonably be said, is, that, in general, the dominion of the state over the neigbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end (§281), and, on the other, it would be a vain and ridiculous pre-tension to claim a right which she were wholly unable to assert. The fleets of England have given room to her kings to claim the empire of the seas which surround that island, even as far as the opposite coasts.† Selden relates a solemn act‡ by which it appears that, in the time of Edward I.83 that empire was acknowledged by the greatest part of the maritime nations of Europe; and the republic of the United Provinces acknowledged it, in some measure, by the treaty of Breda in 1667, at least so far as related to the honours of the flag. But solidly to establish a right of such extent, it were necessary to prove very clearly the express or tacit consent of all the powers concerned. The French have never agreed to this pretension of England; and in that very treaty of Breda, just mentioned, Louis XIV. would not even suffer the Channel to be called the English Channel, or the British Sea. The republic of Venice claims the empire of the Adriatic; and every body knows the ceremony annually performed upon that account. In confirmation of this right, we are referred to the examples of Uladislaus,84 king of Naples, of the emperor Frederic III.85 and of some of the kings of Hungary, who asked permission of the Venetians for their vessels to pass through that sea.* That the empire of the Adriatic belongs to the republic to a certain distance from her own coasts, in the places of which she can keep possession, and of which the possession is important to her own safety,—appears to me incontestable: but I doubt very much whether any power is at present disposed to acknowledge her sovereignty over the whole Adriatic sea. Such pretensions to empire are respected as long as the nation that makes them is able to assert them by force; but they vanish of course on the decline of her power. At present the whole space of the sea within cannon-shot of the coast is considered as making a part of the territory; and for that reason a vessel taken under the cannon of a neutral fortress is not a lawful prize.
§290. Shores and ports.The shores of the sea incontestably belong to the nation that possesses the country of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use; and we are not thence to conclude that they considered them as independent of the empire: the very contrary appears from a great number of laws. Ports and harbours are manifestly an appendage to and even a part of the country, and consequently are the property of the nation. Whatever is said of the land itself, will equally apply to them, so far as respects the consequences of the domain and of the empire.
§291. Bays and straits.All we have said of the parts of the sea near the coast, may be said more particularly, and with much greater reason, of roads, bays, and straits, as still more capable of being possessed, and of greater importance to the safety of the country. But I speak of bays and straits of small extent, and not of those great tracts of sea to which these names are sometimes given, as Hudson’s Bay and the Straits of Magellan, over which the empire cannot extend, and still less a right of property. A bay whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign; and it is of importance that it should be so, since the country might be much more easily insulted in such a place, than on a coast that lies exposed to the winds and the impetuosity of the waves.
§292. Straits in particular.It must be remarked with regard to straits, that, when they serve for a communication between two seas, the navigation of which is common to all or several nations, the nation which possesses the strait, cannot refuse the others a passage through it, provided that passage be innocent, and attended with no danger to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature; and indeed the right to such a passage is a remnant of the primitive liberty enjoyed by all mankind. Nothing but the care of his own safety can authorise the owner of the strait to make use of certain precautions, and to require certain formalities, commonly established by the custom of nations. He has a right to levy a moderate tax on the vessels that pass, partly on account of the inconvenience they give him by obliging him to be on his guard,—partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of light-houses, sea-marks, and other things necessary to the safety of mariners. Thus the king of Denmark requires a custom at the straits of the Sound. Such right ought to be founded on the same reasons, and subject to the same rules, as the tolls established on land or on a river. (See §§103 and 104.)
§293. Right to wrecks.It is necessary to mention the right to wrecks,—a right which was the wretched offspring of barbarism, and which has almost every-where fortunately disappeared with its parent. Justice and humanity cannot allow of it except in those cases only where the proprietors of the effects saved from a wreck cannot possibly be discovered. In such cases, those effects belong to the person who is the first to take possession of them, or to the sovereign, if the law reserves them for him.
§294. A sea inclosed within the territories of a nation.If a sea is entirely inclosed by the territories of a nation, and has no other communication with the ocean than by a channel of which that nation may take possession, it appears that such a sea is no less capable of being occupied, and becoming property, than the land; and it ought to follow the fate of the country that surrounds it. The Mediterranean, in former times, was absolutely inclosed within the territories of the Romans; and that people, by rendering themselves masters of the strait which joins it to the ocean, might subject the Mediterranean to their empire, and assume the dominion over it. They did not, by such procedure, injure the rights of other nations; a particular sea being mani-festly designed by nature for the use of the countries and nations that surround it. Besides, by barring the entrance of the Mediterranean against all suspected vessels, the Romans, by one single stroke, secured the immense extent of their coasts: and this reason was sufficient to authorise them to take possession of it. And as it had absolutely no communication but with the states which belonged to them, they were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns or provinces.
§295. The parts of the sea possessed by a power are within its jurisdiction.When a nation takes possession of certain parts of the sea, it takes possession of the empire over them, as well as of the domain, on the same principle which we advanced in treating of the land (§205). These parts of the sea are within the jurisdiction of the nation, and a part of its territory: the sovereign commands there; he makes laws, and may punish those who violate them: in a word, he has the same rights there as on land, and, in general, every right which the laws of the state allow him.
It is however true that the empire, and the domain or property, are not inseparable in their own nature, even in a sovereign state.* As a nation may possess the domain or property of a tract of land or sea without having the sovereignty of it, so it may likewise happen that she shall possess the sovereignty of a place, of which the property or the domain, with respect to use, belongs to some other nation. But it is always presumed, that when a nation possesses the useful domain of any place whatsoever, she has also the higher domain and empire, or the sovereignty (§205). We cannot, however, from the possession of the empire, infer with equal probability a co-existent possession of the useful domain; for a nation may have good reasons for claiming the empire over a country, and particularly over a tract of sea, without pretending to have any property in it, or any useful domain. The English have never claimed the property of all the seas over which they have claimed the empire.
This is all we have to say in this first book. A more minute detail of the duties and rights of a nation, considered in herself would lead us too far. Such detail must, as we have already observed, be sought for in particular treatises on the public and political law. We are very far from flattering ourselves that we have omitted no important article: this is a slight sketch of an immense picture: but an intelligent reader will without difficulty supply all our omissions by making a proper application of the general principles: we have taken the utmost care solidly to establish those principles, and to develop them with precision and perspicuity.
[* ] Nor shall we examine which of those different kinds of government is the best. It will be sufficient to say in general, that the monarchical form appears preferable to every other, provided the power of the sovereign be limited, and not absolute—qui [principatus] tum demum regius est, si intra modestiae et mediocritatis fines se contineat, excessu potestatis, quam imprudentes in dies augere satagunt, minuitur, penitusque corrumpitur. Nos stulti, majoris, potentiae specie decepti, dilabimur in contrarium, non satis considerantes eam demum tutam esse potentiam quae viribus modum imponit. [[“This [sovereignty] is indeed kingly, if it confines itself within the bounds of modesty and moderation, with a withdrawal from power. The imprudent daily concern themselves to extend such power, but it is diminished and inwardly corrupted. We fools, taken in by the appearance of superior power, lurch to the opposite conclusion, not sufficiently considering that in the end that power is secure which imposes due measure on its energies” (trans. Eds.). The source is unidentified, but the last sentence quotes Valerius Maximus, Factorum et dictorum memorabilium libri novem, exemplum externum 8, the story of Theopompus. The maxim has both truth and wisdom on its side. The author here quotes the saying of Theopompus, king of Sparta 720–675 bc, who returning to his house amidst the acclamations of the people after the establishment of the Ephori,—“You will leave to your children (said his wife) an authority diminished through your fault.” “True (replied the king): I shall leave them a smaller portion of it; but it will rest upon a firmer basis.” Five Ephors were elected annually to “uphold” the rule of the kings, but instead they became a constraint on the power of the two Spartan kings; hence the comment by Theopompus’s wife. The Lacedaemonians, during a certain period, had two chiefs to whom they very improperly gave the title of kings. They were magistrates who possessed a very limited power, and whom it was not unusual to cite before the tribunal of justice,—to arrest,—to condemn to death.—Sweden acts with less impropriety in continuing to bestow on her chief the title of king, although she has circumscribed his power within very narrow bounds. He shares not his authority with a colleague,—he is hereditary,—and the state has, from time immemorial, borne the title of a kingdom. Note added in 1773/1797 editions.]]
[3. ] This is Vattel’s sole reference to Aristotle.
[4. ] Although there is no known case of mercenaries from Neuchâtel fighting against Prussian forces, Vattel would have had in mind the battle of Novara (1500), when Swiss troops employed by both France and the Italian states clashed. The event acquired iconic status in Swiss historiography, and its ramifications were extensively discussed by historians such as Wattenwyl.
[5. ] 1758.
[6. ] In his editions from 1834 Joseph Chitty here noted: “This is indeed a flattering compliment from Vattel, a foreigner: but certainly it is just: for although, as a commercial nation, it might be supposed that each individual principally labours for his own individual gain; yet when we refer to the spirited employment of capital: building national bridges, canals, rail-roads, &c not yielding even 2 per cent, it must be admitted that great public spirit for national good very generally prevails.”
[7. ] Vattel is here positioning himself in the debate about the relative merits of Britain and of France, and the vexed question of Britain’s likely prospects for survival as a mixed state.
[8. ] Vattel is discussing France.
[9. ] “Resist the first advances.”
[* ] The last words of Louis VI. [[Louis the Fat, r. 1108–37 to his son Louis VII. Louis VII, the Younger, r. 1137–80 were—“Remember, my son, that royalty is but a public employment of which you must render a rigorous account to him who is the sole disposer of crowns and sceptres.” Abbé Velly’s Hist. of France, Vol. III. p. 65.
Timur-Bec declared (as he often before had done on similar occasions) that “a single hour’s attention devoted by a prince to the care of his state, is of more use and consequence than all the homage and prayers he could offer up to God during his whole life.” Timur-Bec, or Tamurlane, ca. 1336–1405, Mongol warlord; as conqueror of much of central Asia, he founded the Timurid dynasty. The same sentiment is found in the Koran. Hist. of Timur-Bec, Book II. ch. xli. Sharaf ad-Din ʿAli Yazdi, History of Timur-Bec, translated into French by de la Croix. Note added in 1773/1797 editions.]]
[10. ] Louis XII, called “Father of the People,” r. 1498–1515.
[* ] Neque enim se princeps reipublicae et singulorum dominum arbitrabitur, quamvis assentatoribus id in aurem insusurrantibus, sed rectorem mercede a civibus designata, quam augere, nisi ipsis volentibus, nefas existimabit. Ibid. c. v. [[“For the prince will not consider himself lord of the state and of individuals, however much yes-men might whisper in his ear, but rather a governor with remuneration assigned by the citizens which he will think it unlawful to increase except by their wish” (trans. Eds.). The source is not identified.—From this principle it follows that the nation is superior to the sovereign. Quod caput est, sit principi persuasum, totius reipublicae majorem quam ipsius unius auctoritatem esse: neque pessimis hominibus credat diversum affirmantibus gratificandi studio; quae magna pernicies est. Ibid. “The chief point is, let the prince be persuaded that the authority of the entire state is greater than that of one person in himself, and let him not believe the opposite when the worst of men affirm it out of a desire to curry favor, which is a great evil” (trans. Eds.). The source is not identified. Note added in 1773/1797 editions.]]
[* ] In some countries, formal precautions are taken against the abuse of power.— “Reflecting, among other things (says Grotius), that princes are often found to make no scruple of violating their promises under the stale pretext of the public good, the people of Brabant, in order to obviate that inconvenience, established the custom of never admitting their prince to the possession of the government without having previously made with him a covenant, that, whenever he may happen to violate the laws of the country, they shall be absolved from the oath of obedience they had sworn to him, until ample reparation be made for the outrages committed. The truth of this is confirmed by the example of past generations, who formerly made effectual use of arms and decrees to reduce within proper bounds such of their sovereigns as had transgressed the line of duty, whether through their own licentiousness or the artifices of their flatterers. Thus it happened to John the Second: nor would they consent to make peace with him or his successors, until those princes had entered into a solemn engagement to secure the citizens in the enjoyment of their privileges.” Annals of the Netherlands, book ii. [[Note added in 1773/1797 editions.]]
[11. ] Louis XIV of France, “the Sun King,” r. 1643–1715.
[* ] [[Antoine Bilaine, A treatise on the right of the queen to several states of the Spanish monarchy, 1667, in 12mo, part II. p. 191.]]
[* ] Since the above was written, France has witnessed a renewal of those horrors. She sighs at the idea of having given birth to a monster capable of violating the majesty of kings in the person of a prince, whom the qualities of his heart entitle to the love of his subjects and the veneration of foreigners. [The author alludes to the attempt made by Damien to assassinate Louis XV.]
[† ] In Mariana’s work above quoted [[De rege et regis institutione, I find (chap. vii. towards the end) a remarkable instance of the errors into which we are apt to be led by a subtle sophistry destitute of sound principles.—That author allows us to poison a tyrant, and even a public enemy, provided it be done without obliging him, either by force or through mistake or ignorance, to concur in the act that causes his own death,—which would be the case, for instance, in presenting him a poisoned draught. For (says he), in thus leading him to an act of suicide, although committed through ignorance, we make him violate the natural law which forbids each individual to take away his own life; and the crime of him who thus unknowingly poisons himself redounds on the real author,—the person who administered the poison.—Necogatur tantum sciens aut imprudens sibi conscire mortem; quod esse nefas judicamus, veneno in potu aut cibo, quod hauriat qui perimendus est, aut simili alia retemperato. “Let him not be forced knowingly or imprudently to be complicit in his own death; we judge it to be unlawful that he who must perish should swallow poison in food or drink or mixed with some other substance” (trans. Eds.). A fine reason, truly! Was Mariana disposed to insult the understandings of his readers, or only desirous of throwing a slight varnish over the detestable doctrine contained in that chapter? Note added in 1773/1797 editions.]]
[* ] Dissimulandum censeo quatenus salus publica patiatur, privatimque corruptis moribus princeps contingat: alioquin si rempublicam in periculum vocat, si patriae religionis contemptor existit, neque medicinam ullam recipit, abdicandum judico, alium substituendum; quod in Hispania non semel fuisse factum scimus: quasi fera irritata, omnium telis peti debet, cum, humanitate abdicata, tyrannum induit. Sic Petro rege ob immanitatem dejecto publice, Henricus ejus frater, quamvis ex impari matre, regnum obtinuit. Sic Henrico hujus abnepote ob ignaviam pravosque mores abdicato procerum suffragiis, primum Alfonsus ejus frater, recte an secus non disputo, sed tamen in tenera aetate rex est proclamatus: deinde defuncto Alfonso, Elisabetha ejus soror, Henrico invito, rerum summam ad se traxit, regio tantum nomine abstinens dum ille vixit. [[“My assessment is that there must be secrecy about the extent of what public safety can tolerate, and the extent to which the prince can be privately involved with corrupted morals; otherwise if he brings the state into danger, if he stands forth as one who despises the religion of his country, and accepts no remedy, then I judge he must abdicate and another take his place. We know this has happened more than once in Spain when, as a provoked wild animal needs to be pursued by the weapons of all, human decency has been in abeyance and she has taken on a tyrant. Thus, when Peter was king, when the people were laid low on account of his excesses, his brother Henry, although from a different mother, obtained the kingdom. Thus when by the votes of the nobles Henry had been deposed by his grandson on account of his sloth and vicious morals, in the first instance his brother Alfonsus was proclaimed king, I will not argue whether rightly or wrongly but at any rate at a tender age. Then on the death of Alfonsus his sister Elisabeth assumed control of affairs despite Henry’s unwillingness and was queen in all but name as long as he lived” (trans. Eds.). Mariana, de Rege et Regis Institut. Lib. I. c. iii.
To this authority furnished by Spain, join that of Scotland, proved by the letter of the barons to the pope, dated April 6, 1320 the Declaration of Arbroath, or formal confirmation of Scotland’s independence, requesting him to prevail on the king of England to desist from his enterprises against Scotland. After having spoken of the evils they had suffered from him, they add—A quibus malis innumeris, ipso juvante qui post vulnera medetur et sanat, liberati sumus per serenissimum principem regem et dominum nostrum, dominum Robertum, qui pro populo et haereditate suis de manibus inimicorum liberandis, quasi alter Maccabaeus aut Josue, labores et taedia, inedias et pericula, laeto sustinuit animo. Quem etiam divina dispositio, et (juxta leges et consuetudines nostras, quas usque ad mortem sustinere volumus) juris successio, et debitus nostrorum consensus et assensus nostrum fecerunt principem atque regem: cui, tanquam illi per quem salus in populo facta est, pro nostra libertate tuenda, tam jure quam meritis tenemur, et volumus in omnibus adhaerere. Quem, si ab inceptis desistet, regi Anglorum aut Anglis nos aut regnum nostrum volens subjicere, tanquam inimicum nostrum et sui nostrique juris subversorem, statim expellere nitemur, et alium regem nostrum, qui ad defensionem nostram sufficiet, faciemus: quia, quamdiu centum viri remanserint, nunquam Anglorum dominio aliquatenus volumus subjugari. Non enim propter gloriam, divitias, aut honores pugnamus, sed propter libertatem solummodo, quam nemo bonus nisi simul cum vita amittit. “But from these countless evils we have been set free, by the help of Him Who though He afflicts yet heals and restores, by our most tireless Prince, King and Lord, the Lord Robert. He, that his people and his heritage might be delivered out of the hands of our enemies, met toil and fatigue, hunger and peril, like another Maccabaeus or Joshua, and bore them cheerfully. Him, too, divine providence, his right of succession according to our laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our prince and king. To him, as to the man by whom salvation has been wrought unto our people, we are bound both by law and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand. Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the king of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our king; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom—for that alone, which no honest man gives up but with life itself.” (Scottish nobles to Pope John XXII.)
“In the year 1581 (says Grotius, Ann. book III.) the confederated provinces of the Netherlands,—after having for nine years continued to wage war against Philip the Second king of Spain, r. 1556–98 without ceasing to acknowledge him as their sovereign,—at length solemnly deprived him of the authority he had possessed over their country, because he had violated their laws and privileges.” The author afterwards observes that “France, Spain herself, England, Sweden, Denmark, furnish instances of kings deposed by their people, so that there are at present few sovereigns in Europe whose right to the crown rests on any other foundation than the right which the people possess of divesting their sovereign of his power when he makes an ill use of it.” Pursuant to this idea, the United Provinces, in their justificatory letters on that subject, addressed to the princes of the Empire and the king of Denmark,—after having enumerated the oppressive acts of the king of Spain,—added—“Then, by a mode which has been often enough adopted even by those nations that now live under kingly government, we wrested the sovereignty from him whose actions were all contrary to the duty of a prince.” Ibid. Note added in 1773/1797 editions.]]
[* ] Populi patroni non pauciora neque minora praesidia habent. Certe a republica unde ortum habet regia postestas, rebus exigentibus, regens in jus vocari potest, et, si sanitatem respuat, principatu spoliari; neque ita in principem jura potestatis transtulit, ut non sibi majorem reservârit potestatem. Ibid. cap. VI. [[“The defenders of the people have means of defense which are not scantier or smaller. Certainly when circumstances demand it the ruler can be brought before the law by the state from which royal power has its origin, and if he refuses to see sense he can be stripped of his power; and no power has legally transferred to the prince, so he does not reserve power to himself.” Annales et historiae de rebus Belgicis, lib. III (trans. Eds.).
Est tamen salutaris cogitatio, ut sit principibus persuasum, si rempublicam oppresserint, si vitiis et foeditate intolerandi erunt, ea se conditione vivere, ut non jure tantum, sed cum laude et gloria, perimi possint. Ibid. “It is however a salutary consideration, that princes should be persuaded, if they oppress the state, if through vice and foulness they are unendurable, that they live under this condition that their removal can be not just legal but praiseworthy and glorious” (trans. Eds.). Note added in 1773/1797 editions.]]
[12. ] “Even war is a good exchange for a miserable peace.” Tacitus, Annales, III.47.
[13. ] Charles IX, king of France, r. 1560–74.
[14. ] August 24, 1572, when approximately three thousand Protestants were murdered at Paris.
[* ] Mezeray’s Hist. of France, vol. II. p. 1107.
[* ] De Jure Belli & Pacis, Lib. 1. cap. iv. §11. not. 2.
[15. ] I Samuel 19–20.
[16. ] Charles VI, “the Well-Beloved,” r. 1380–1422.
[* ] Nimirum, quod publicae salutis causa et communi consensu statutum est, eadem multitudinis voluntate, rebus exigentibus, immutari quid obstat? [[“To be sure, when circumstances demand it, what stands in the way of changing that which has been established for the sake of public safety and by common consent when this too is the will of the multitude?” (trans. Eds.) Mariana, ibid. De rege c. iv. Note added in 1773/1797 editions.]]
[* ] When Philip II. resigned the Netherlands to his daughter Isabella Clara Eugenia, it was said (according to the testimony of Grotius) that it was setting a dangerous precedent, for a prince to treat free citizens as his property, and barter them away like domestic slaves;—that, among barbarians indeed, the extraordinary practice sometimes obtained, of transferring governments by will or donation, because those people were incapable of discerning the difference between a prince and a master;—but that those whom superior knowledge enabled to distinguish between what is lawful and what is not, could plainly perceive that the administration of a state is the property of the people (thence usually denominated res-publica);—and that as, in every period of the world, there have been nations who governed themselves by popular assemblies or by a senate, there have been others who intrusted the general management of their concerns to princes. For it is not to be imagined (it was added) that legitimate sovereignties have originated from any other source than the consent of the people, who gave themselves all up to a single person, or (for the sake of avoiding the tumults and discord of elections) to a whole family: and those to whom they thus committed themselves, were induced by the prospect of honourable pre-eminence alone to accept a dignity by which they were bound to promote the general welfare of their fellow citizens in preference to their own private advantage. Grotius. Hist. of the Disturbances in the Netherlands. Book II. [[Note added in 1773/1797 editions.]]
[* ] Spirit of Laws, Book XXVI. chap. XXIII. where may be seen very good political reasons for these regulations.
[† ] See further on.
[* ] Memorial in behalf of Madame de Longueville, concerning the principality of Neufchatel, in 1672.
[* ] But it is to be observed that those partitions were not made without the approbation and consent of the respective states.
[† ] Nescio quomodo nihil tam absurde dici potest, quod non dicatur ab aliquo philosophorum. [[“I do not know why, but nothing can be said which is so absurd, that it is not said by one or other of the philosophers.” Cicero, de Divinat. Lib. II 119.]]
[17. ] Charles IV, king of France, r. 1322–28.
[18. ] The dispute was over who would succeed to the throne after Charles IV died without a male heir.
[* ] Answer in behalf of Madame de Longueville, to a Memorial in behalf of Madame de Nemours.
[19. ] Francesco Guicciardini, The History of Italy, from the Year 1490, to 1532 ... In Twenty Books. Translated into English by the Chevalier Austin Parke Goddard (London, 1753–56), bk. 12, vol. 6, 395.
[20. ] Ferdinand I, king of Aragon and Sicily, r. 1412–16.
[21. ] Ferdinand II, king of Aragon, r. 1476–1516; king of Sicily, r. 1468–1516; king of Naples, r. 1504–16; and king of Castile and León (as Ferdinand V), r. 1474–1504.
[22. ] Isabella, queen of Castile, r. 1474–1504.
[23. ] Martin I, king of Aragon, r. 1396–1410; king of Sicily as Martin II, r. 1409–10; uncle of Ferdinand I.
[† ] Ibid.
[‡ ] See the same memorial, which quotes P. Labbe’s Royal Abridgement, page 501, &c.
[24. ] Henry IV, king of Castile, r. 1454–74.
[25. ] Alphonso V, r. 1438–81.
[26. ] Pius II, r. 1458–64.
[* ] I take this historical passage from M. Du Port de Tertre’s Conspiracies. To him I refer; for I have not the original historians by me. However, I do not enter into the question relating to the birth of Jane: this would here be of no use. The princess had not been declared a bastard according to the laws; the king acknowledged her for his daughter; and besides, whether she was or was not legitimate, the inconveniences resulting from the pope’s refusal still remained the same with respect to her and the king of Portugal. [[Note added in 1773/1797 editions.]]
[27. ] Louis of Bavaria, Holy Roman Emperor, r. 1328–47.
[* ] P. 154 Forma divortii matrimonialis inter Johannem filium regis Bohemiae & Margaretham ducissam Karinthiae. This divorce is given by the emperor on account of the impotency of the husband, per auctoritatem, says he, nobis rite debitam & concessam. [[“A form of matrimonial divorce between John, son of the king of Bohemia, and Margaret, Duchess of Karinthia.” “... by authority ... duly owed and granted to us” (trans. Eds.).
P. 156. Forma dispensationis super affinitate consanguinitatis inter Ludovicum marchionem Brandenburg & Margaretham ducissam Karinthiae, nec non legitimatio liberorum procreandorum, factae per dom. Ludovic. IV. Rom. imper. “A form of dispensation in respect of affinity of blood between Ludwig, Marquis of Brandenburg, and Margaret, Duchess of Karinthia, together with a legitimation of any children to be begotten, made by the authority of Ludwig IV, Emperor of the Romans.”
It is only human law, says the emperor, that hinders these marriages intra gradus affinitatis sanguinis, praesertim intra fratres & sorores. De cujus legis praeceptis dispensare solummodo pertinet ad auctoritatem imperatoris seu principis Romanorum. “within the degrees of affinity of blood, especially between brothers and sisters. Dispensing of the requirements of this law is a matter for the authority of the emperor or prince of the Romans” (trans. Eds.). He then opposes and condemns the opinion of those who dare to say that these dispensations depend on ecclesiastics. Both this act and the former are dated in the year 1341. Note added in 1773/1797 editions.]]
[28. ] Peter I, r. 1682–1725.
[29. ] Marta Skavronskaya, Catherine I, 1684–1727.
[* ] De Jure Belli & Pacis, Lib. I. Cap. III. §12.
[† ] The pope [[Innocent III, r. 1198–1216 opposing the attempt made upon England by Louis the son of Philip Augustus Louis VIII, r. 1223–26, and alleging, as his pretext, that John John, king of England, r. 1199–1216 had rendered himself a vassal of the holy see, received for answer, among other arguments, “that a sovereign had no right to dispose of his states without the consent of his barons, who were bound to defend them.” On which occasion the French nobles unanimously exclaimed that they would, to their last breath, maintain this truth—“that no prince can, of his own private will, give away his kingdom, or render it tributary, and thus enslave the nobility.” Velly’s Hist. of France, Vol. III. p. 491. Note added in 1773/ 1797 editions.]]
[* ] [[Louis-Joseph Plumard de Danguel, Remarks on the Advantages and Disadvantages of France and Great Britain with respect to Commerce.]]
[30. ] Joseph Chitty noted, “This perpetual obligation to purchase Port wines from Portugal in exchange for British wool cloths was established by the celebrated treaty of Methuen, ad 1703 (so called because concluded by Sir P. Methuen) with Portugal. A treaty which has been censured by some as evidently advantageous to Portugal and disadvantageous to Great Britain.” Chitty cited Adam Smith, Dean Tucker, and his own Commercial Law in support.
[* ] In Boizard’s Treatise on Coin, we find the following observations. “It is worthy of remark, that, when our kings debased the coin, they kept the circumstance a secret from the people:—witness the ordinance of Philip de Valois in 1350, by which he ordered Tournois Doubles to be coined 2d. 5 ⅓ gr. fine, which was in fact a debasement of the coin. In that ordinance, addressing the officers of the mint, he says, ‘Upon the oath by which you are bound to the king, keep this affair as secret as you possibly can, that neither the bankers nor others may by your means acquire any knowledge of it: for if through you it comes to be known, you shall be punished for the offence in such manner as shall serve as an example to others.’ ”—The same author quotes other similar ordinances of the same king, and one issued by the Dauphin who governed the kingdom as regent during the captivity of king John, dated June 27, 1360, by virtue of which, the mint-masters directing the officers engaged in the coinage to coin white Deniers 1d. 12 gr. fine, at the same time expressly command them to keep this order secret, and, “if any persons should make inquiry respecting their standard, to maintain that they were 2d. fine.” Chap. xxix.
The kings [of France] had recourse to this strange expedient in cases of urgent necessity: but they saw its injustice.—The same author, speaking of the debasement of coin, or the various modes of reducing its intrinsic value, says—“Those expedients are but rarely resorted to, because they give occasion to the exportation or melting down of the good specie, and to the introduction and circulation of foreign coin,— raise the price of every thing,—impoverish individuals, diminish the revenue, which is paid in specie of inferior value,—and sometimes put a total stop to commerce. This truth has been so well understood in all ages, that those princes, who had recourse to one or other of these modes of debasing the coin in difficult times, ceased to practise it the moment the necessity ceased to exist.” We have, on this subject, an ordinance of Philip the Fair, issued in May, 1295, which announces, that, “The king having reduced the coin both in fineness and weight, and expecting to be obliged to make a further reduction in order to retrieve his affairs,—but knowing himself to be, in conscience, responsible for the injury caused to the state by such reduction,—pledges himself to the people of his kingdom, by solemn charter, that, as soon as his affairs are retrieved, he will restore the coin to its proper standard and value, at his own private cost and expense, and will himself bear all the loss and waste. And, in addition to this engagement, Dame Joan, queen of France and Navarre [[r. 1285–1305, pledges her revenues and dower for the same purpose.” Note added in 1773/1797 editions.]]
[* ] In his [[Bodin’s Republic, Book I. Chap. X.]]
[31. ] Sigismund Augustus, r. 1548–72.
[* ] See Xenophon, Lacedaemon. Respublica.
[* ] Nam, ut vere loquamur, superstitio fusa per gentes oppressit omnium fere animos, atque omnium imbecillitatem occupavit.... multum enim & nobismet ipsis & nostris profuturi videbamur, si eam funditus sustulissemus. Nec vero (id enim diligenter intelligi volo) superstitione tollendâ religio tollitur. Nam & majorum instituta tueri, sacris caeremoniisque retinendis, sapientis est: & esse praestantem aliquam aeternamque naturam, & eam suspiciendam, admirandamque hominum generi, pulchrit do mundi, ordoque coelestium cogit confiteri. [[“For, to speak truly, that superstition has extended itself through all nations, and has oppressed the intellectual energies of almost all men, and has betrayed into endless imbecilities.... For I thought that I should be doing an immense benefit both to myself and to my countrymen if I could entirely eradicate all those superstitious errors. Nor is there any fear that true religion can be endangered by the demolition of superstition; for it is a part of a wise man to uphold the religious institutions of our ancestors by the maintenance of their rites and ceremonies. And the beauty of the world and the order of all celestial things compel us to confess that there is an excellent and eternal Nature which deserves to be worshipped and admired by all mankind.” De Divinatione, Lib. II.]]
[* ] Harum ego religionem nullam unquam contemnendam putavi: mihique ita persuasi, Romulum auspiciis, Numam sacris constitutis, fundamenta jecisse nostrae civitatis, quae nunquam profecto sine summa placatione Deorum immortalium tanta esse potuisset. Habes, Balbe, quid Cotta, quid pontifex sentiat. Fac nunc ego intelligam, quid tu sentias: a te enim philosopho rationem accipere debeo religionis; majoribus autem nostris, etiam nulla ratione reddita, credere. [[“I have always thought that none of these departments of religion was to be despised, and I have held the conviction that Romulus by his auspices and Numa by his establishment of our ritual laid the foundations of our state, which assuredly could never have been as great as it is had not the fullest measure of divine favour been obtained for it. There, Balbus, is the opinion of a Cotta and a pontiff; now oblige me by letting me know yours. You are a philosopher, and I ought to receive from you a proof of your religion, whereas I must believe the word of our ancestors even without proof.” De Natura Deorum, Lib. III.]]
[32. ] Codrus, king of Athens, r. ca. 1089–1068 bc
[* ] His country being attacked by the Heraclidae, he consulted the oracle of Apollo; and being answered, that the people whose chief should be slain, should remain victorious, Codrus disguised himself, and, rushing into the battle, was killed by one of the enemy’s soldiers. [[Note added in 1773/1797 editions.]]
[33. ] Louis XII, r. 1498–1515.
[34. ] Marcus Junius Brutus Caepio, governor of Gaul and praetor, most famous for his role in the murder of Julius Caesar in 44 bc
[35. ] Marcus Curtius, legendary hero of ancient Rome, who (Livy, History of Rome, I.6.1–6) managed to close a chasm that had opened in the Forum by leaping, fully armed and on horseback, into it.
[36. ] The two Decii, father and son, sacrificed themselves to the gods for the deliverance and safe keeping of the Roman army.
[37. ] At Sempach, Winkelried sacrificed himself to save the Swiss Confederation by creating a passage through the rows of enemy lances with his body.
[38. ] Battle of Sempach, 1386.
[* ] This affair happened in the year 1386. The Austrian army consisted of four thousand chosen men, among whom were a great number of princes, counts, and nobility of distinguished rank, all armed from head to foot. The Swiss were no more than thirteen hundred men, ill armed. In this battle, the duke of Austria perished with two thousand of his forces, in which number were six hundred and seventy-six noblemen of the best families in Germany. History of the Helvetic Confederacy, by deWatteville,Vol. I. p. 183.—Tschudi.—Etterlin.—Schodeler.—Raebman [[Rebmann.]]
[* ] The former assassinated Henry III. of France [[r. 1574–89; the latter murdered his successor, Henry IV r. 1594–1610.]]
[39. ] In Roman myth the water nymph was consulted by Numa concerning the establishment of the Roman calendar in a series of nocturnal interviews (Livy, History of Rome, I.19).
[* ] The duke de Sully; see his Memoirs digested by M. de l’Ecluse, Vol. V. p. 135, 136.
[† ] Deorum injuriae diis curae. Tacit. Ann. book I. c. 73. [[“The gods must look to their own wrongs” (trans. Eds.). Tacitus, Annales I, chap. 23, p. 369.]]
[‡ ] Qui secus faxit, Deus ipse vindex erit.... Qui non paruerit, capitale esto. [[“He who acts otherwise will have God for his avenger.... If a person disobeys, it will be a capital offense.” (trans. Eds.) De Legib. Lib. II.]]
[* ] Quas (religiones) non metu, sed ea conjunctione quae est homini cum deo, conservandas puto. [[“Which, I believe, need to be preserved not out of fear but because of the bond which exists between human and god.” Cicero de Legib. Lib. I. What a fine lesson does this pagan philosopher give to Christians!]]
[40. ] Constantine I, Roman emperor, r. ad 306–37.
[41. ] Julian, Roman emperor, r. ad 361–63.
[* ] When the chief part of the people in the principality of Neufchatel and Vallangin embraced the reformed religion in the sixteenth century, Joan of Hochberg, their sovereign, continued to live in the Roman Catholic faith, and nevertheless still retained all her rights. The state council enacted ecclesiastical laws and constitutions similar to those of the reformed churches in Switzerland; and the princess gave them her sanction. [[Note added in 1773/1797 editions.]]
[* ]History of New France, Books V. VI. and VII.
[42. ] The pontifex maximus was the high priest of the ancient Roman College of Pontiffs.
[* ] See the Theodosian Code.
[43. ] “So potent was religion in persuading to evil deeds.” Lucretius, De rerum natura I.102.
[44. ] Henry IV, Holy Roman Emperor, r. 1084–1105, and king of Germany, r. 1056– 1105.
[45. ] Frederic I, Holy Roman Emperor, r. 1155–90.
[46. ] Frederic II, Holy Roman Emperor, r. 1220–50.
[* ] In England, under Henry VIII.
[† ] Henry III. and Henry IV. assassinated by fanatics, who thought they were serving God and the church by stabbing their king.
[‡ ] Though Henry IV. returned to the Romish religion, a great number of Catholics did not dare to acknowledge him until he had received the pope’s absolution.
[§ ] Many kings of France in the civil wars on account of religion.
[47. ] Pope Boniface VIII, r. 1294–1303.
[* ]Turretin. Hist. Ecclesiast. Compendium, p. 182. Where may also be seen the resolute answer of the king of France.
[† ]Extravag. Commun. Lib. I. Tit. De Majoritate & Obedientia.
[48. ] The papal bull Unam sanctam, 1302.
[‡ ] Gregory VII. endeavoured to render almost all the states of Europe tributary to him. He maintained that Hungary, Dalmatia, Russia, Spain, and Corsica, were absolutely his property, as successor to St. Peter, or were feudatory dependencies of the holy see. Greg.Epist. Concil. Vol. VI. Edit. Harduin [[Harduin, Conciliorum collection.—He summoned the emperor Henry IV. to appear before him, and make his defence against the accusations of some of his subjects: and, on the emperor’s non-compliance, he deposed him. In short, here are the expressions he made use of in addressing the council assembled at Rome on the occasion: “Agite nunc, quaeso, patres et principes sanctissimi, ut omnis mundus intelligat et cognoscat, quia si potestis in coelo ligare et solvere, potestis in terra imperia, regna, principatus, ducatus, marchias, comitatus, et omnium hominum possessiones, pro meritis tollere unicuique et concedere.” “Act now, I beseech you, fathers and most holy princes [cardinals], that all the world may understand and know that if you have power to bind and loose in heaven, you have the same power on earth over each and every one to take away and to grant, according to deserts, empires, kingdoms, dominions [or principalities], dukedoms, marches, retinues, and the possessions of all men” (trans. Eds.). Natal. Noell Alex.Dissert. Hist. Eccl. s. xi. and xii. p. 384.
The canon law boldly decides that the regal power is subordinate to the priesthood. “Imperium non praeest sacerdotio, sed subest, et ei obedire tenetur.” “[Royal] power is not superior to the priesthood, but is subordinate and is required to obey it.” Decretals of Pope Gregory IX, bk. I, chap. vi, titulus 33, “De maioritate et obedienta.” Rubric. ch. vi. De Major. et Obed. “Et est multum allegabile,” “And it is very excusable” is the complaisant remark of the writer of the article. Note added in 1773/1797 editions.]]
[49. ] Trollius, archbishop of Upsal, was condemned in 1515.
[50. ] Pope Leo X, r. 1513–21.
[* ]History of the Revolutions in Sweden [[René-Aubert de Vertot.]]
[51. ] Christiern, king of Denmark, r. 1513–23.
[52. ] Pope Paul V, r. 1605–21.
[53. ] Pope Pius V, r. 1566–72.
[54. ] Pope Alexander VI, r. 1492–1503; Charles VIII of France, r. 1483–98, excommunicated in 1495.
[* ]Vogel’s Historical and Political Treatise on the Alliances between France and the Thirteen Cantons, p. 33, and 36.
[* ] We may see in the letters of Cardinal d’Ossat [[b. 1536–d. 1604, what difficulties, what opposition, what long delays Henry IV. had to encounter when he wished to confer the archbishopric of Sens on Renauld de Baune, archbishop of Bourges, who had saved France, by receiving that great prince into the Roman catholic church.]]
[* ] This reflection has no relation to the religious houses in which literature is cultivated. Establishments that afford to learned men a peaceful retreat, and that leisure and tranquillity required in deep scientific research, are always laudable, and may become very useful to the state.
[† ] The Papia-Poppaean law.
[‡ ] In the Theodosian Code.
[§ ] The president de Montesquieu, in his Spirit of Laws.
[* ] Tantum sacerdos praestat regi, quantum homo bestiae. Stanislaus Orichovius.— Vide Tribbechov. Exerc. 1. ad Baron. Annal. Sect. 2. [[Adam Tribbechov, Exercitationes ad Baronii Annales, 1667 & Thomas. Nat. ad Lancell. Thomasius’s edition of Paolo Lancellotti’s Institutiones Juris Canonici (Halle, 1715–17).]]
[* ] The Congregation of Immunities has decided that the cognisance of causes against ecclesiastics, even for the crime of high treason, exclusively belongs to the spiritual court:—“Cognitio causae contra ecclesiasticos, etiam pro delicto laesae majestatis, fieri debet a judice ecclesiastico.” RicciSynops. Decret. et Resol. S. Congreg. Immunit. p. 105.—A constitution of pope Urban VI. pronounces those sovereigns or magistrates guilty of sacrilege, who shall banish an ecclesiastic from their territories, and declares them to have ipso facto incurred the sentence of excommunication. Cap. II. De Foro Compet. in VII.—To this immunity may be added the indulgence shewn by the ecclesiastical tribunals to the clergy, on whom they never inflicted any but slight punishments, even for the most atrocious crimes. The dreadful disorders that arose from this cause at length produced their own remedy in France, where the clergy were at length subjected to the temporal jurisdiction for all transgressions that are injurious to society. See PaponArrêts Notables. Book I. tit V. Act 34. [[Note added in 1773/1797 editions.]]
[† ] Indecorum est laïcos homines viros ecclesiasticos judicare. Can. in nona actione 22. XVI. q. 7.
[55. ] Pope Paul III, r. 1534–49; Pope Urban VIII, r. 1623–44.
[* ] See the Statement of Facts on the System of the Independence of Bishops. [[Henri-Philippe Chauvelin, Tradition des faits, qui manifestent le sistème d’indépendance que les évêques ont opposé dans les différens siècles aux principes invariables de la justice souveraine du roi sur tous ses sujets, 1753.]]
[† ] In the year 1725, a parish-priest, of the canton of Lucerne, having refused to appear before the supreme council, was, for his contumacy, banished from the canton. Hereupon, his diocesan, the bishop of Constance, had the assurance to write to the council that they had infringed the ecclesiastical immunities,—that “it is unlawful to subject the ministers of God to the decisions of the temporal power.” In these pretensions, he was sanctioned by the approbation of the pope’s nuncio and the court of Rome. But the council of Lucerne firmly supported the rights of sovereignty, and—without engaging with the bishop in a controversy which would have been derogatory to their dignity,—answered him—“Your Lordship quotes various passages from the writings of the fathers, which we, on our side, might also quote in our own favour, if it were necessary, or if there was question of deciding the contest by dint of quotations. But let your Lordship rest assured that we have a right to summon before us a priest, our natural subject, who encroaches on our prerogatives,—to point out to him his error,—to exhort him to a reform of his conduct,—and, in consequence of his obstinate disobedience after repeated citations, to banish him from our dominions. We have not the least doubt that this right belongs to us; and we are determined to defend it. And indeed it ought not to be proposed to any sovereign to appear as party in a contest with a refractory subject like him,—to refer the cause to the decision of a third party, whoever he be,—and run the risk of being condemned to tolerate in the state a person of such character, with what dignity soever he might be invested,” &c. The bishop of Constance had proceeded so far as to assert, in his letter to the canton, dated December 18, 1725, that “churchmen, as soon as they have received holy orders, cease to be natural subjects, and are thus released from the bondage in which they lived before.” Memorial on the Dispute between the Pope and the Canton of Lucerne, p. 65. [[Note added in 1773/1797 editions.]]
[* ] [[René-Aubert de Vertot, Revolutions of Portugal.]]
[56. ] John de Braganza, King John IV of Portugal, r. 1640–56. The plot to assassinate the king in 1641 was led by the natural son of King Peter II, José of Braganza, archbishop of Braga (1703–56).
[* ] See Letters on the Pretensions of the Clergy.
[57. ] Ives (Ivo) de Chartres, ca. 1040–1116, bishop of Chartres.
[* ] See Letters on the Pretensions of the Clergy.
[58. ] Otho IV, Holy Roman Emperor, r. 1209–15; Pope Innocent III, r. 1198–1216.
[59. ] John de Gray, 1205.
[* ] Matthew Paris.—Turretin. Compend. Hist. Eccles. Secul. XIII.
[60. ] Pope Innocent IV, r. 1243–54.
[† ]Heiss’s History of the Empire, Book II. Chap. XVI.
[61. ] Henry, Landgrave of Thuringia, r. 1292–1308.
[‡ ] Sovereigns were sometimes found, who, without considering future consequences, favoured the papal encroachments when they were likely to prove advantageous to their own interests. Thus Louis VIII. [[r. 1223–26 king of France, wishing to invade the territories of the count of Toulouse, under pretence of making war on the Albigenses, requested of the pope, among other things, “that he would issue a bull, declaring that the two Raymonds, father and son, together with all their adherents, associates, and allies, had been and were deprived of all their possessions.” Velly’s Hist. of France. Vol IV. p. 33.—Of a similar nature to the preceding, is the following remarkable fact. Pope Martin IV. excommunicated Peter, king of Arragon,—declared that he had forfeited his kingdom, all his lands, and even the regal dignity,—and pronounced his subjects absolved from their oaths of allegiance. He even excommunicated all who should acknowledge him as king, or perform towards him any of the duties of a subject. He then offered Arragon and Catalonia to the count de Valois, second son of Philip the Bold, on condition that he and his successors should acknowledge themselves vassals of the holy see, take an oath of fealty to the pope, and pay him a yearly tribute. The king of France assembled the barons and prelates of his kingdom to deliberate on the pope’s offer; and they advised him to accept it:—“Strange blindness of kings and their counsellors!” exclaims, with good reason, a modern historian: “they did not perceive, that, by thus accepting kingdoms from the hands of the pope, they strengthened and established his pretensions to the right of deposing themselves.” Velly’s Hist. of France. Vol. VI. p. 190. Note added in 1773/1797 editions.]]
[* ]In cap. Novit. de Judiciis.
[† ] See Leibnitii Codex Juris Gent. Diplomat. Dipl. LXVII. §9.
[62. ] “To acknowledge all ecclesiastical laws.”
[* ]Ibid. Alliance of Zurich with the cantons of Uri, Schweitz, and Underwald, dated May 1, 1351, §7.
[† ] See A Regulation of Parliament in an arret of March 19, 1409. Spirit of Laws. These (says Montesquieu) were the very best nights they could pitch upon: they would have made no great profit of any other.
[‡ ]De Jure Belli & Pacis, Lib. II. Cap. XXIV. He quotes Basil ad Amphiloch. X. 13. Zonarcas in Niceph. Phoc. Vol. III.
[* ] See a dissertation on this subject, in the Loisir Philosophique, page 71 [[by Vattel, published in 1747.]]
[63. ] “The imperial majesty should not only be decorated with arms but should also be armed with laws so that there may be good government in times both of war and of peace.” Justinian, Institutes, prooemium.
[64. ] Morgarten, 1315; Sempach, 1386; Laupen, 1339; Morat, 1476.
[65. ] Battle of Dreux, 1562.
[* ]History of France, Vol. II. p. 888.
[66. ] King Henry IV of France, r. 1589–1610.
[67. ] Jacob Bernouilli, 1654–1705, Swiss mathematician and natural philosopher.
[68. ] Axel Oxenstierna, 1588–1654, lord high chancellor of Sweden.
[69. ] Henri de la Tour d’Auvergne, Vicomte de Turenne, 1611–75, military commander and marshal of France.
[70. ] John Churchill, first duke of Marlborough, 1650–1712, military commander serving William of Orange and Queen Anne.
[71. ] Michiel de Ruyter, 1607–76, victorious Dutch admiral in the Anglo-Dutch wars.
[72. ] Louis XI of France, r. 1461–83; battle of St. Jacques, August 26, 1444.
[* ] See the Memoirs of Commines.
[* ] Of this small army, “eleven hundred and fifty-eight were counted dead on the field, and thirty-two wounded. Twelve men only escaped, who were considered by their countrymen as cowards, that had preferred a life of shame to the honour of dying for their country.” History of the Helvetic Confederacy, by M. de Watteville, Vol. 1. p. 250.—Tschudi, p. 425.
[† ] Vogel’s Historical and Political Treatise of the Alliances between France and the Thirteen Cantons, pag. 75, 76.
[* ] Itaque populum Campanum, urbemque Capuam, agros, delubra deûm, divina humanaque omnia, in vestram, patres conscripti, populique Romani ditionem dedimus. [[“Therefore we now place under your sway and jurisdiction, senators, and that of the Roman people, the people of Campania and the city of Capua, its fields, its sacred temples, all things human and divine.” LIVY, book vii. c. 31. Ab urbe condita, VII, 31.]]
[* ] We speak here of a nation that has rendered itself subject to another, and not of one that has incorporated itself with another state, so as to constitute a part of it. The latter stands in the same predicament with all the other citizens. Of this case we shall treat in the following chapter.
[† ] See [[Watteville The History of Switzerland the first edition is titled Les historiens de la Suisse.—The United Provinces, having been obliged to rely wholly on their own efforts in defending themselves against Spain, would no longer acknowledge any dependence on the empire, from which they had received no assistance. GROTIUS, Hist. of the Troubles in the Low Countries, B. xvi. p. 627. Note added in 1773/1797 editions.]]
[* ] See Etterlin, Simler, and de Watteville.
[73. ] Bullinger discusses the events Vattel refers to at Zurich, including the role of Charles IV (r. 1355–78), in his famous Chronicle of Zurich (“Tigurinerchronik,” pt. 1, bk. 8, chap. 5). Never published, the Chronicle was available only in several manuscript copies (see Zentralbibliothek Zürich, Ms. Car 43 and 44; for the relevant passage see Car 43, p. 371r–374v). Vattel may well have had access to the Chronicle, although there is no evidence to support such a claim.
[† ] See the same historians, and Bullinger, Stumpf, Tschudi, and Stettler.
[* ] Those decrees being of a very singular nature, and hardly any where to be found but in very scarce books, the reader will not be displeased with seeing here an extract of them.
The bull of Alexander VI. by which he gives to Ferdinand and Isabella, king and queen of Castile and Arragon, the New World, discovered by Christopher Columbus.
“Motu proprio,” (says the pope) “non ad vestram, vel alterius pro vobis super hoc nobis oblatae petitionis instantiam, sed de nostra mera liberalitate, & ex certa scientia, ac de apostolicae potestatis plenitudine, omnes insulas & terras firmas, inventas, & inveniendas, detectas & detegendas versus occidentem & meridiem,” (drawing a line from one pole to the other, at an hundred leagues to the west of the Azores) “auctoritate omnipotentis Dei nobis in beato Petro concessa, ac vicariatus Jesu Christi, qua fungimur in terris, cum omnibus illarum dominiis, civitatibus, &c. vobis, haeredibusque & successoribus vestris, Castellae & Legionis regibus, in perpetuum tenore praesentium donamus, concedimus, assignamus, vosque, & haeredes ac successores praefatos, illorum dominos, cum plena libera & omni moda potestate, auctoritate & jurisdictione, facimus, constituimus, & deputamus.” [[“We, of our own accord, not at your instance nor the request of anyone else in your regard, but of our own sole largesse and certain knowledge and out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth, do by tenor of these presents, should any of said islands have been found by your envoys and captains, give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south.” Alexander VI, In caetera, May 4, 1493. The pope excepts only what might be in the possession of some other Christian prince before the year 1493,—as if he had a greater right to give what belonged to nobody, and especially what was possessed by the American nations.— He adds: “Ac quibuscunque personis cujuscunque dignitatis, etiam imperialis & regalis, status, gradus, ordinis, vel conditionis, sub excommunicationis latae sententiae poena, quam eo ipso, si contra fecerint, incurrant, districtius inhibemus ne ad insulas & terras firmas inventas & inveniendas, detectas & detegendas, versus occidentem & meridiem ... pro mercibus habendis, vel quavis alia de causa, accedere praesumant absque vestra ac haeredum & successorum vestrorum praedictorum licentia speciali, &c. Datum Romae apud S. Petrum anno 1493. IV. nonas Maji, Pontific. nostri anno primo.” “Furthermore, under penalty of excommunication late sententie to be incurred ipso facto, should anyone thus contravene, we strictly forbid all persons of whatsoever rank, even imperial and royal, or of whatsoever estate, degree, order, or condition, to dare, without your special permit or that of your aforesaid heirs and successors, to go for the purpose of trade or any other reason to the islands or mainlands, found and to be found, discovered and to be discovered, towards the west and south.” Leibnitii Codex Juris Gent. Diplomat. Diplom. 203.
See ibid. (Diplom. 165.) the bull by which pope Nicholas V. gave to Alphonso, king of Portugal, and to the Infant Henry, the sovereignty of Guinea, and the power of subduing the barbarous nations of those countries, forbidding any other to visit that country, without the permission of Portugal. This act is dated Rome on the 8th of January, 1454.]]
[* ] History of the English Colonies in North America. [[William Burke, An Account of the European Settlements in the Americas.]]
[74. ] William Penn, 1644–1718.
[* ] This is the foundation of the tax paid on quitting a country, called, in Latin, census emigrationis.
[* ] Charles XII. [[of Sweden, r. 1697–1718 condemned to death and executed general Patkul, a native of Livonia, whom he had made prisoner in an engagement with the Saxons. But the sentence and execution were a violation of the laws of justice. Patkul, it is true, had been born a subject of the king of Sweden: but he had quitted his native country at the age of twelve years, and, having been promoted in the army of Saxony, had, with the permission of his former sovereign, sold the property he possessed in Livonia. He had therefore quitted his own country, to chuse another (as every free citizen is at liberty to do, except, as we have observed above, at a critical moment when the circumstances of his country require the aid of all her sons)—and the King of Sweden, by permitting him to sell his property, had consented to his emigration. Note added in 1773/1797 editions.]]
[* ] See, above, the chapter on religion.
[75. ] Frederic William I, r. 1713–40.
[* ] The common acceptation of these two terms is not repugnant to our application of them. The French academy says, “Banishment is only applied to condemnations in due course of law,—Exile is only an absence caused by some disgrace at court.”— The reason is plain;—such a condemnation from the tribunal of justice entails infamy on the emigrant; whereas a disgrace at court does not usually involve the same consequence.
[* ] Too great attention cannot be used in watching the imposition of taxes, which, once introduced, not only continue, but are so easily multiplied.—Alphonso VIII. king of Castile [[r. 1158–1214, besieging a city belonging to the Moors (Concham urbem in Celtiberis) the city of Concha (now Cuenca) in Celtiberia (central Spain), and being in want of money, applied to the states of his kingdom for permission to impose on every free inhabitant a capitation-tax of five golden maravedis. But Peter, count de Lara, vigorously opposed the measure, “contractaque nobilium manu, ex conventu discedit, armis tueri paratus partam armis et virtute a majoribus immunitatem, neque passurum affirmans nobilitatis opprimendae atque novis vectigalibus vexandae ab eo aditu initium fieri; Mauros opprimere non esse tanti, ut graviori servitute rempublicam implicari sinant. Rex, periculo permotus, ab ea cogitatione desistit. Pertrum nobiles, consilio communicato, quotannis convivio excipere decreverunt, ipsum et posteros,—navatae operae mercedem, rei gestae bonae posteritati monumentum, documentumque ne quavis occasione jus libertatis imminui patiantur.” And having gathered the group of noblemen, he leaves the assembly, ready to defend with arms and bravery the immunity obtained by their predecessors, and affirming that he was not going to tolerate through this opportunity the beginning of the oppression of the nobility and its harassment with new taxes, and [affirming] that oppressing the Moors was not so expensive for them to allow the commonwealth to be entangled in a more degrading servitude. The king, moved by the danger, desisted from that intention. Once this decision had been communicated, the noblemen decided to celebrate Peter every year in a banquet, him and his successors, as a reward for a zealous act and a reminder and testimony of a good work, so that on no occasion would they allow the right to freedom [ius libertatis] to be diminished (trans. Eds.). MARIANA. Juan de Mariana, De rege et regis institutione. Note added in 1773/ 1797 editions.]]
[76. ] “To increase, lower [compress], or alter the market rate [of the year’s harvest].”
[* ] See his Memoirs.
[* ] Quod domania regnorum inalienabilia & semper revocabilia dicuntur, id respectu privatorum intelligitur; nam contra alias gentes divino privilegio opus foret. [[“The domains of kings are said to be inalienable and always revocable [i.e., subject to forfeit], and this is understood to apply to private individuals, for against other nations there is need of special law from God” (trans. Eds.). (Kings cannot sell off their territories to private individuals and indeed are trustees rather than absolute owners of their lands, but when it comes to international relations we need different rules from God governing territorial acquisition and transfer.) Leibnitz, Praefat. ad Cod. Jur. Gent. Diplomat. Leibniz, Introduction to Codex juris gentium diplomaticus.]]
[77. ] Francis I, r. 1515–47.
[78. ] Treaty of Madrid, 1526.
[79. ] Charles V reigned as Holy Roman Emperor (1519–56) and also as King Carlos I of Spain (1516–56).
[* ] Mezeray’s History of France, vol. ii, p. 458.
[80. ] 1526.
[* ] Mezeray, ibid.
[* ] See Grotius’s Mare Liberum, and Selden’s Mare Clausum, lib. i. cap. xvii.
[81. ] 1566–1648.
[82. ] James I of England (r. 1603–25) also ruled as James VI of Scotland (r. 1567– 1625).
[* ] Selden’s Mare Clausum, Lib. II.
[* ] In his Republic, Book I. Chap. X.
[† ] See Selden’s Mare Clausum.
[‡ ] Ibid. lib. ii, cap. xxviii.
[83. ] Edward I, king of England, r. 1272–1307.
[84. ] Uladislaus (Ladislaus), king of Naples, r. 1386–1414.
[85. ] Frederic III, Holy Roman Emperor, r. 1452–93.
[* ] Ibid. lib. i. cap. xvi.
[* ] See Book II. §83.