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Remarks on This Chapter - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Remarks on This Chapter
First of all, it is worth while to observe here, That tho’ it be very certain that mankind may be very happy, and arrive at a considerable degree of perfection in sciences and arts, to great politeness as well as opulence, in segregate families living independently one of another, or with regard to one another, in a state of natural equality and liberty; yet, as it is beyond all doubt on the one hand, that an ill-constituted civil state is the source of the greatest misery mankind can fall into; so on the other hand, it is equally plain from the nature of things, and from experience, that there is a perfection and happiness attainable by a rightly constituted civil state, to which mankind can no otherwise attain. Now mankind may be justly said to be fitted and designed for the state of the greatest perfection attainable by them in consequence of their frame; and therefore to be designed for the civil state, by which the greatest perfection and happiness of mankind is attainable. There must be means to an attainable end; and all means cannot possibly be equally fit for attaining the same end: But any end attainable by man in consequence of his having the means for attaining to it in his power, is, properly speaking, an end within human reach, according to the laws of human nature. And it is but doing justice to the Author of nature, and but speaking of the end for which mankind is designed by the Author of all things, in the same manner we speak of the ends for which any mechanical structure of nature’s production (as the human body, or any other animal body) or any mechanical structure produced by human art, (as a ship, a watch, &c.) is designed, to say that mankind are principally designed by the Author of nature for the best end, or the highest perfection and happiness within human reach, in consequence of man’s frame and constitution, the laws of his nature, and the means within his power. If therefore the highest perfection and happiness within human reach be attainable, and only attainable in a rightly constituted civil state, and if men be sufficiently impelled to, and furnished for rightly constituting a civil state, man may be said to be intended for a rightly constituted civil state, and all the perfection and happiness attainable in it, or by it, in the same sense that any animal structure, or any machine, is said to be intended for its end. Our conclusion must hold, if the premises from which it is drawn be true.
Now, that there is a very high degree of perfection and happiness attainable by man in a rightly constituted civil state, not otherwise attainable by man, will appear from comparing civilized states one with another, and with nations living without any order deserving the name of civil government. But the manifold advantages of rightly constituted civil government having been fully proved by many authors, Harrington, Sydney, Locke, among the moderns, and by Plato, Aristotle, Polybius, Cicero, and others among the ancients; I shall only add upon this head, a very remarkable saying of one ancient, with regard to the greatest happiness attainable by man. Hippodamus Thurius Pythagor. de felicitate,5 having described the principal ingredients of human happiness, says,—Quae quidem omnia contingent si quis rempublicam bene constitutam nanciscatur. Id quod quidem Amaltheae quod dicitur cornu voco. Etenim in recta legum constitutione sunt omnia; neque maximum naturae humanae bonum vel existere absque ea, vel comparatum & auctum permanere possit. Nam et virtutem, & ad virtutem viam in se continet, quandoquidem in ea partim naturae bona procreantur, partim & mores & studia; leges optime se habent & recta ratio, pietas sanctimonia magnopere vigent. Quamobrem qui beatus futurus & seliciter victurus est, eam in bene constituta republica & vivere, necesse est & mori, &c. “All these blessings and advantages will accrue to one from a well constituted republic. This we may justly call the horn of Amalthea, the horn of plenty and felicity. For all depends upon the good orders, constitutions and laws of a state: Nor can the greatest good of mankind be attained, or being attained, be preserved, without right government. A well framed government includes virtue, and the way to virtue in it: Good orders make good men: There the goods of nature grow up as in their proper soil; and there good manners and useful studies and employments will flourish: There the laws direct and impel into the right paths; and there reason, virtue, piety, authority, must have their greatest splendor and vigour. Wherefore, he who would be as happy as man can be, and would continue while he lives to be such, must live and die in a well framed, a well constituted or balanced civil government, &c.”
2. But let me just observe, in the second place, that ends and means to ends, can only be learned from nature itself by experience, and reasoning from experience. This must be equally true with regard to natural and moral ends and means. The consequence of which is, that the political art required time, observation and experience, to bring it to perfection, as well as natural or mechanical arts. And for this reason, in very early times of the world, men could not be so much masters of the science upon which the framing of government aright must depend, as to have had all the advantages and disadvantages of different governments, all the various effects of different moral or political constitutions in their view, in framing a government: They could only learn these natural connexions of moral things from experience. And therefore, in treating of government, two separate enquiries ought never to be confounded; the one of which is, “what ends right reason dictates to mankind as the ends to be proposed in constituting civil government; and what means, i.e. what orders and constitutions it points out as the proper means in order to attain these good ends.” And the other is, “how in fact various governments were formed, and how, being formed, they changed gradually their frame to the better or worse.” The one is a question of fact or history; and the principal advantage reaped by history, is instruction in the natural effects of various constitutions in different situations; or the knowledge of what moral connexions and causes produce in different circumstances, and the knowledge of the rise of different circumstances, from internal or external causes; which knowledge has the same relation to moral theory in moral philosophy, that the history of facts in nature, with regard to the operation of natural causes in different circumstances, has to natural theory or physics: that is, it is the only solid basis in both to build upon. For as in physics it is now agreed that we can only come to solid or real knowledge by induction from experiments; so in morals and politics it is equally true, to use the words of a great man often quoted in these remarks, “To make principles or fundamentals belongs not to men, to nations, nor to human laws. To build upon such principles or fundamentals as are apparently laid by God in the inevitable necessity or law of nature, is that which truly appertains to men, to nations, and to human laws. To make any other fundamentals, and then build upon them, is to build castles in the air.”6 The other question supposes knowledge of human affairs, and the natural operations of moral causes, learned in this way from fact, and reasoning from fact or experience; and it is properly a philosophical enquiry into what ought to be done in consequence of the natural operation of moral causes, or of the laws of human nature, known by experience, in order to frame such a civil government as would make its members as happy as men can be. And it is, when it proceeds upon facts or experiments, the most pleasant and useful of all philosophical enquiries; and that certainly, which, of all other studies, best becomes those, who, by their natural happy lot, are delivered from drudgery to their backs and bellies. Nay, may I not say, that it is the study, to which, if such do not betake themselves chiefly, they are absolutely inexcusable. For sure, if virtue and benevolence be not empty names, they must lie under the strongest, the most indispensable obligations to qualify themselves for promoting human happiness: they are bound and obliged to be tutors and guardians to mankind. And whatever other employment they may carve out to themselves, or however thoughtlesly they may waste their time, if they neglect this, they neglect the noble work providence hath put into their hands to do. A work, (a happiness should I not rather say) than which nothing can be higher, nobler, or more glorious. It is a work or employment, and a happiness of the same kind with the work, employment, and happiness of the great Author of nature, the all-perfect God.
But let me observe, in the third place, that tho’ our author, in speaking of the origine of civil governments, (which is a question of fact or history) hath frequently come very near the matter, especially in the scholium, where he speaks of the king-dom founded by Nimrod, yet he hath not fully spoke it out: and therefore it will not be improper here to lay before the reader a series of propositions relative to that subject; i.e. which shew government in its natural causes, or in its natural procreation and natural variations. And these truths having a necessary connexion with what hath been already taken notice of in our remarks with regard to property, or the acquisition of dominion over things, they will be easily understood; so that there will be but little occasion to do more than just mention them. And that I shall, for the greater part, do in the very words of an excellent author, unknown to foreign writers, from whom we have already borrowed so many useful observations.7
1. The distribution of property, so far as it regards the nature or procreation of government, lies in the over-balance of the same. Just as a man, who has two thousand pounds a year, may have a retinue, and consequently a strength that is three times greater than he who enjoys but five hundred pounds a year. Not to speak of money at this time, (of that we have already treated in another remark, viz. the remarks on chapter 13. l. 1. which the reader may turn to) which, in small territories, may be of like effect; but to insist upon the main, which is property in land, (because to property producing empire, it is required that it should have some certain root, or root-land, which, except in land, it cannot have, being otherwise, as it were, upon the wing); to insist upon this, which is the main, the over-balance of this, as it was at first constituted, or comes insensibly to be changed into a nation, may be especially of three kinds; that is, in one, in the few, or in many. The over-balance three to one, or thereabouts, in one man against the whole people, creates absolute monarchy; as when Joseph had purchased all the lands of the Egyptians for Pharaoh. The constitution of a people in this, and such cases, is capable of intire servitude. Buy us and our land for bread, and we and our land will be servants to Pharaoh, Gen. xlvii. 19. If one man be sole landlord of a territory, or overbalance the people, for example, three parts in four, he is Grand Signior; for so the Turk is called from his property; and his empire is absolute monarchy. The overbalance of the land to the same proportion in the few against the whole people, creates aristocracy, or regulated monarchy. The constitution of a people in this, and the like cases, is (nec totam libertatem, nec totam servitatem pati possunt, Tacit.)8 neither capable of intire liberty, nor of intire servitude. And hereupon Samuel says to the people of Israel, when they would have a king, “He will take your fields, even the best of them, and give them to his servants, 1 Sam. viii.” If a few, or a nobility with the clergy be landlords, or over-balance the people to the proportion above-mentioned, it makes what is called the Gothic balance. (See this treated of at large by Mr. Harrington.) The over-balance of land to the same proportion in the people, or where neither one nor the few over-balance the whole people, creates popular government; as in the division of the land of Canaan to the whole people of Israel by lot. The constitution of a people in this, and the like cases, is capable of intire freedom; nay, not capable of any other settlement; it being certain, that if a monarch, or single person, in such a state, thro’ the corruption or improvidence of their councils, might carry it; yet, by the irresistible force of nature, or the reason alledged by Moses, (I am not able to bear all this people alone, because it is too heavy for me; Numb. xi. 14.) he could not keep it, but out of the deep waters would cry to them, whose feet he had stuck in the mire. If the whole people be landlords, or hold the lands so divided among them, that no one man, or number of men, within the compass of the few, or aristocracy over-balance them, the empire, (without the interposition of force) is a commonwealth.
2. If force be interposed in any of these three cases, it must either frame the government to the foundation, or the foundation to the government; or holding the government not according to the balance, it is not natural, but violent; and therefore, if it be at the devotion of a prince, it is tyranny; if at the devotion of a few, oligarchy; or if in the power of the people, anarchy. Each of which confusions, the balance standing otherwise, is but of short continuance, because against the nature of the balance, which not destroyed, destroys that which opposes it. But there be certain other confusions, which being rooted in the balance, are of a longer continuance, and of worse consequence. As first, where a nobility holds half the property, or about that proportion, and the people the other half; in which case, without altering the balance, there is no remedy but the one must eat out the other; as the people did the nobility in Athens, and the nobility the people in Rome. Secondly, when a prince holds about half the dominion, and the people the other half, (which was the case of the Roman Emperors, planted partly upon their military colonies, and partly upon the senate and the people) the government becomes a very shambles both of the princes and the people. Somewhat of this nature are certain governments at this day, which are said to subsist by confusion. In this case, to fix the balance is to entail misery; but in the three former, not to fix it, is to lose the government; wherefore, it being unlawful in Turkey, that any should possess land but the Grand Signior, the balance is fixed by the law, and that empire firm. While Lacedemon held to the division of land made by Lycurgus it was immoveable, but breaking that, could therefore stand no longer.
3. Fixation of government cannot be provided for without fixing the balance of property. But fixation of the balance of property is not to be provided for but by laws. Now, the laws whereby such provision is made, are commonly called Agrarian laws. This kind of law fixing the balance in lands, was settled by God himself, who divided the land of Canaan to his people by lots; and it is of such virtue, that wherever it has held, that government has not altered, except by consent; as in that unparallelled example of the people of Israel, when being in liberty they would needs choose a king. But without an Agrarian, no government, whether monarchical, aristocratical or popular, has a long lease. And as governments are of divers or contrary natures, so are such laws. Monarchy requires of the standard of property, that it be vast or great; and of Agrarian laws, that they hinder recess or diminution, at least in so much as is thereby entailed upon honour. But popular government requires that the standard be moderate, and that its Agrarian prevent accumulation. In a territory not exceeding England in revenue, if the balance be in more hands than three hundred, it is declining from monarchy; and if it be in fewer than five thousand hands, it is swerving from a commonwealth. In consequence of the same principles, wherever the balance of a government lies, there naturally is the militia of the same; and against him or them, wherein the militia is naturally lodged, there can be no negative voice. If a prince holds the over-balance, as in Turkey, in him is the militia, as the Janizaries and Timariots. If a nobility has the over-balance, the militia is in them, as among us was seen in the Barons wars, and those of York and Lancaster; and in France is seen, when any considerable part of that nobility rebelling, they are not to be reduced, but by the major part of their order adhering to the king. If the people has the over-balance, which they had in Israel, the militia is in them, as in the four hundred thousand first decreeing, and then waging war against Benjamin; where it may be enquired, what power there was on earth having a negative voice to this assembly! This always holds where there is settlement, or where a government is natural. Where there is no settlement, or where the government is unnatural, it proceeds from one of these two causes, either an imperfection in the balance, or else such a corruption in the lawgivers, whereby a government is instituted contrary to the balance. Imperfections of the balance, that is, where it is not good or downright weight, cause imperfect governments; as those of the Roman and Florentine people, and those of the Hebrew Kings and Roman Emperors, being each exceeding bloody, or at least turbulent. Government against the balance in one is tyranny, as that of the Athenian Pisistratus; in the few it is oligarchy, as that of the Roman Decemvirs; in the many, anarchy, as that under the Neapolitan Mazinello.
4. From these principles will the reader find the more remarkable changes in the Athenian, Spartan, Roman, and other states, accounted for naturally by Mr. Harrington. And from them he justly infers, that wherever, thro’ causes unforeseen by human prudence, the balance comes to be intirely changed, it is the more immediately to be attributed to divine providence: And since God cannot will the cause, but he must also will the necessary effect or consequence, what government soever is in the necessary direction of the balance, the same is of divine right. Wherefore, tho’ of the Israelites God says, They have set up kings, but not by me; they have made princes, and I knew it not. Yet to the small countries adjoining to the Assyrian empire, he says, “Now have I given all these lands into the hands of the king of Babylon my servant.—Serve the king of Babylon and live.” The general truth here insisted upon, which history abundantly confirms, is, that the over-balance of property begets dominion, and that the balance of dominion will always follow the balance of property, be under its direction, or vary as it varies. And therefore this author says very justly (of his works, p.70.)9 To erect a monarchy, be it ever so new, unless like Leviathan, you can hang it, as the country fellow speaks, by geometry; (for what else is it to say that any other man must give up his will to the will of this one man without any other foundation?) it must stand upon old principles, that is, upon a nobility, or an army planted in a due balance of dominion. “Aut viam inveniam aut faciam,”10 was an adage of Caesar; and there is no standing for a monarchy, unless it finds this balance, or makes it. If it finds it, the work is done to its hand; for where there is inequality of estates, there must be inequality of power; and where there is inequality of power, there can be no commonwealth. To make it, the sword, must extirpate out of dominion all other roots of power, and plant an army upon that ground. An army may be planted nationally or provincially. To plant it nationally, it must be either monarchically in part, as the Roman Beneficiarii; or monarchically in the whole, as the Turkish tenants; or aristocratically, that is, by earls and barons, as the Neustrians were planted by Turbo; or democratically, that is, by equal lots, as the Israelitish army in the land of Canaan by Joshua. In every one of these ways, there must not only be confiscations, but confiscations to such a proportion as may answer to the work intended.
5. As nothing else can fix government but an Agrarian suitable to its nature; so different superstructures are natural to different foundations of government. Thus, such superstructures as are natural to an absolute prince, or the sole landlord of a large territory, require for the first story of the building, that what demesnes he shall think fit to reserve being set apart, the rest be divided into horse quarters or military farms for life, or at will, and not otherwise; and that every tenant for every hundred pounds a year so held, be, by condition of his tenure, obliged to attend his sovereign lord in person, in arms, and at his proper cost and charges, with one horse, so often, and so long as he shall be commanded upon service. These, among the Turks, are called Timariots. The second story requires, that these horse-quarters, or military farms, be divided by con-venient precincts or proportions into distinct provinces, and that each province have one commander in chief of the same, at the will and pleasure of the Grand Signior, or for three years, and no longer. Such, among the Turks, (unless by additional honours, they be called Bashaws or Viziers) are the Beglerbegs. For the third story, there must of necessity be a mercenary army, consisting both of horse and foot, for the guard of the prince’s person, and for the guard of his empire, by keeping the governors of provinces so divided, that they be not suffered to lay their arms or heads together, or to hold intelligence with one another; which mercenary army ought not to be constituted of such as have already contracted some other interest, but to consist of men so educated from their very childhood, as not to know that they have any other parent or native country, than the prince and his empire. Such, among the Turks, are the foot, called Janizaries, and the horse, called Spahys. The prince, accommodated with a privy council, consisting of such as have been governors of provinces, is the top-stone. This council, among the Turks, is called the Divan, and this prince, the Grand Signior.
The superstructures proper to a regulated monarchy, or to the government of a prince, (three or four hundred of whose nobility, or of whose nobility and clergy hold three parts in four of the territory) must either be by personal influence, upon the balance, or by virtue of orders. The safer way of this government is by orders; and the orders proper to it, especially consist of an hereditary senate of the nobility, admitting also of the clergy, and of a representative of the people, made up of the Lord’s menial servants, or such as by tenure, and for livelihood, have immediate dependance upon them.
An aristocracy, or state of nobility, to exclude the people, must govern by a king; or to exclude a king, must govern by the people. Nor is there, without a senate, or mixture of aristocracy, any popular government; wherefore, tho’, for discourse sake, politicians speak of pure aristocracy and pure democracy, there is no such thing as either of these in nature, art, or example: where the people are not over-balanced by one man, or by the few, they are not capable of any other superstructures of government, or of any other just and quiet settlement whatsoever, than of such only as consists of a senate as their counsellors, of themselves, or their representative, as sovereign lords, and of a magistracy answerable to the people as the distributers and executioners of the laws made by the people. And thus much is of absolute necessity to any, or every government, that is or can be properly called a commonwealth, whether it be well or ill ordered. But the necessary definition of a commonwealth any thing well ordered, is, that it is a government consisting of the senate proposing, the people resolving, and the magistracy executing. To speak of different or-ders in commonwealths, would be almost endless. Some commonwealths consist of distinct sovereignties, as Switzerland and Holland; others are collected into one and the same sovereignty, as most of the rest. Again, some commonwealths have been upon rotation or courses in the representative only, as Israel; others in the magistracy only, as Rome; some in the senate and magistracy, as Athens and Venice; others in some part of the magistracy, and in others not; as Lacedemon in the Ephori, and not in the kings; and Venice not in the Doge, nor in the procuratori, but in all the rest. Holland, except in the election of states provincial (which is emergent) admits not of any rotations or courses. But there may be a commonwealth admitting of rotation throughout, as in the senate, in the representative, and in the magistracy, as that proposed by Mr. Harrington in his Oceana. Rotation, if it be perfect, is equal election by, and succession of the whole people to the magistracy by terms and vacations. Equal election may be by lot, as that of the senate of Lacedemon; or by ballot, as that of Venice, which of all others is the most equal. The ballot, as it is used in Venice, consists of a lot, whence proceeds the right of proposing, and of an unseen way of suffrage, or of resolving. From the wonderful variety of parts, and the difference of mixture (before Mr. Harrington scarce touched by any) result those admirable differences that are in the constitution and genius of popular governments; some being for defence, some for increase; some more equal, others more unequal; some turbulent and seditious, others like streams in a perpetual tranquillity. That which causes much sedition in a commonwealth is inequality, as in Rome, where the senate oppressed the people. But if a commonwealth be perfectly equal, it is void of sedition, and has attained to perfection, as being void of all internal causes of dissolution. And hence many antient moral writers, Cicero in particular, have said, that a well constituted commonwealth is immortal, aeterna est. An equal commonwealth is a government founded upon a balance, which is perfectly popular, being well fixed by a suitable Agrarian, and which, from the balance, through the free suffrage of the people given by the ballot, amounts, in the superstructures, to a senate debating and proposing, a representative of the people resolving, and a magistracy executing; each of these three orders being upon courses or rotation; that is, elected for certain terms injoining like intervals. And to undertake the binding of a prince from invading liberty, and yet not to introduce the whole orders necessary to popular government, is to undertake a flat contradiction, or a plain impossibility.
6. All I have further to add in this remark, designed to shew the natural generation and variation of empire is, that these principles (as Mr. Harrington has observed) were not unknown to ancient politicians, and are sufficiently confirmed by history. That they were not unknown to Moses, is plain from the history given us of the orders of the commonwealth instituted by him; nor to Lycurgus, is as plain. I shall only just set down the passages Mr. Harrington quotes from Aristotle and Plutarch. The first is Aristotle, in these words: “Inequality is the source of all sedition, as when the riches of one or a few come to cause such an overbalance in dominion, as draws the commonwealth into monarchy or oligarchy; for prevention whereof the ostracism has been of use in divers places, as at Argos and Athens. But it were better to provide in the beginning, that there be no such disease in the commonwealth, than to come afterwards to her cure, Polit. 5. 3.” The second is Plutarch, in these words: “Lycurgus judging that there ought to be no other inequality among citizens of the same commonwealth than what derives from their virtues, divided the land so equally among the Lacedemonians, that, on a day beholding the harvest of their lots lying by cocks or ricks in the field, he laughing said, that it seemed to him they were all brothers, Plutarch in Lycurg.”11 This account of the rise, variation or fixation of empire, is abundantly confirmed by experience or history. To prove this I shall only here insert a small part of what Mr. Harrington says of several ancient republics, in order to excite the reader’s curiosity to have recourse to himself, (of his works, p.57).12 “Israel and Lacedemon, which commonwealths have great resemblance, were each of them equal in their Agrarian, and inequal in their Rotation: especially Israel, where the Sanhedrim or senate first elected by the people, took upon them ever after to substitute their successors by ordination. And the election of the judge, suffes,13 or dictator, was irregular, both for the occasion, the term, and the vacation of that magistracy, as you find in the book of Judges where it is often repeated, That in those days there was no King in Israel, that is, no Judge: and in the first of Samuel where Eli judged Israel forty years, and Samuel all his life. In Lacedemon, the election of the senate being by suffrage of the people, tho’ for life, was not altogether so unequal, yet the hereditary right of kings, were it not for the Agrarian, had ruined her. Athens and Rome were inequal as to their Agrarian, that of Athens being infirm, and this of Rome none at all; for if it were more anciently carried, it was never observed. Whence, by the time of Tiberius Gracchus, the nobility had almost eaten the people quite out of their lands, which they held in the occupation of tenants and servants: whereupon, the remedy being too late, and too vehemently applied, that commonwealth was ruined. These also were unequal in their rotation, but in a contrary manner. Athens, in regard that the senate (chosen at once by lot, not by suffrage, and changed every year, not in part, but in the whole) consisted not of the natural aristocracy; nor sitting long enough to understand or be perfect in their office, had no sufficient autho-rity to restrain the people from that perpetual turbulence in the end, which was their ruin, notwithstanding the efforts of Nicias, who did all a man could do to help it. But as Athens fell by the headiness of the people, so Rome fell by the ambition of the nobility, through the want of an equal rotation; which, if the people had got into the senate, and timely into the magistracy (whereof the former was always usurped by the patricians, and the latter for the most part) they had both carried and held their Agrarian, and that had rendered that commonwealth immoveable.”
This short specimen of our Author’s way of reasoning about the rise and fall, or variations of civil government, is sufficient to shew, that he reasons from natural causes in these matters, as natural philosophers do about phenomena commonly called natural ones. And indeed every thing in nature, moral or corporeal nature, must have its natural course, its natural rise, progress and variations. And as to know the one is to be a natural philosopher, so to know the other is to be a moral philosopher or politician.
Of sovereignty, and the ways of acquiring it.
All sovereignty is supreme and absolute.Since those who unite into a civil state lived before that in a state of nature (§3), which is a state of equality and liberty (§5 and 6); the consequence is, that a civil state is subjected to no person or persons without it; may not be hindered or disturbed in doing any thing it judges necessary for its conservation, but may freely exerce all its rights, and cannot be forced to give an account to any of its transactions. But all those things together constitute what is called supreme or absolute sovereignty or empire; and therefore, in every civil state, there is supreme and absolute empire or sovereignty.*
The error of monarch-killers.Because there is supreme empire or absolute sovereignty in every civil state or republic (§127), and citizens or subjects may have submitted their will either to one, or many, or to the whole people, (§114); the consequence is, that to whomsoever they have submitted their will, he, or they are vested with supreme power or sovereignty, and therefore they can be judged by none but God alone; and much less therefore can they be punished in any manner by the people; so that the doctrine of monarch-killers, which makes the people superior to the king or prince, and places in the former the real, and in the latter only personal majesty, is a most petulant one.*
As likewise of the machiavelians.But since subjects have only so far subjected themselves to the will of a sovereign as their common security, the end for which they entred into the civil state, requires (§14 & 106), we must infer from hence, that they are abominable and flagitious flatterers of sovereigns, who persuade them that they may do what they please, and can do no injury to their subjects; but that their persons, lives, reputations and estates, are so absolutely dependent upon them, that subjects have no more left to them but the glory of absolute submission and obedience. From this corrupt spring flow all those pestiferous tenets, which Machiavel and Hobbes have attempted to impose upon mankind with the greatest assurance; and, together with them, all the asserters and defenders of passive-obedience in Great Britain. But who will deny that such doctrines are no less pestilential than that of king-killing?*
Sovereigns are sacred.Since sovereigns cannot be judged by any but God, much less be punished by their people (§128); hence we conclude that sovereignty is sacred, and that Sovereigns are sacred; and therefore that sedition and rebellion are very heinous crimes. Tho’ we should grant in theory, that Sovereigns who manifest a hostile disposition against their subjects, may be resisted as tyrants; yet this rule would be in fact of no utility, because Sovereigns can only be judged by God, and therefore God alone can decide whether a Sovereign truly bears a hostile mind against his subjects or not.*
But yet it is not lawful to sovereigns to do whatever they please.But since every thing is not lawful to a prince (§129) the consequence is, that he cannot impose any violence or restraint upon the consciences of his subjects, nor command them to do any thing contrary to the will of God the supreme lawgiver (l. 1. §87); neither can he, without a pregnant and just reason, deprive any subject of his right, seeing subjects united into a civil state chiefly for the security of their rights (§105). Subjects therefore, in great distress, may try all methods in order to obtain their rights, and, in extreme danger, leave their native country (§21); but they may not take up arms against their prince or the republic (l. 1. §232).
What if empire be given with a commissory clause?Tho’ these things be true of Sovereigns in general, yet it may happen, that empire is given to one with certain restrictions by pacts, and with a commissory article to this effect, that the deed shall be null, if the conditions be not fulfilled. Now, in this case, no injury is done to Sovereigns, if after they have been frequently admonished, they do not cease to invade the liberty of their subjects, and to oppress them, the Empire be taken from them. And it is evident, from the nature of pacts, if free-men hinder those from exercising rule over them, who assume it to themselves without any just title to it, or with whom they have made no pact, no transference of power, no covenant, they cannot be blamed.*
Empire exerts itself in rights of majesty. What these are?But since all empire is supreme and absolute, (§127), the consequence is, that all the rights are joined with it, without which the end of civil society, viz. security, cannot be obtained; all which united together constitute majesty, or the rights of majesty. Now, this security being two-fold, internal, by which the subjects are inwardly secured one against the other, and external, by which the society is defended against the arms and force of outward enemies; hence it is plain, that the rights of majesty are of two sorts; some relative to the citizens or subjects themselves, called immanent; and others relating to foreigners, called transeunt.*
Of the immanent rights of majesty.If the internal security of a state consist in defending the subjects against violence from one another (§133), of necessity there must be joined with sovereignty the right of making laws, and of applying these to facts or cases, which we may call supreme jurisdiction; as likewise the right of punishing transgressions of the laws, and of exacting tributes and duties proportionable to the exigencies of the state; the right of constituting administrators and magistrates; of regulating all that relates to sacred things, as well as to commerce, and the ornament of the state; and, in fine, of watching that the republic suffer no wrong or hurt.
What the transeunt rights of majesty.And since those who coalited into the same republic, likewise intended their common security against external violence (§133); the consequence is, that from sovereignty cannot be severed the right of making alliances and treaties, sending ambassadors, and making war and peace; since without these rights the state could not be preserved safe and secure. For without the right of making alliances and treaties, a weaker state would often be a very inequal match for a more potent one; without the right of sending ambassadors, treaties could not be made; and without the right of making war and peace, it would be impossible to repel force by force; and therefore the end of society, which is security, could not be obtained.
Whether they are communicable and divisible.Those rights of majesty flowing directly from the nature and end of sovereignty, cannot be separated from it without destroying that unity of will which is the essence of society, and rearing up a republic within a republic (§120); yet, because all, or several forms of government, are sometimes so blended together, that one may check or balance another, (§117), it may happen, that all, or the greater part of the rights of majesty may be exerced, not by one person, or by one college, but by many, or by the whole people; and in this case, there must be an assembly, in which the Sovereign exercises them according to the judgment of the different orders composing it.*
Empire is acquired either by election or by succession.Moreover, because both the form of the government, and the governors themselves, are elected by the same people, who also prescribe fundamental laws to them (§110); hence it is evident, that none can acquire empire to himself in a civil state without the consent of the people, or contrary to its fundamental laws. But, according to these, empire may either be elective or successive; and this division extends not only to monarchies, but to aristocracies and popular governments.*
What is just with regard to the election of a sovereign.Empire is elective, when the people in an interregnum creates a Sovereign, and transfers the empire to him with his consent. But, because the people may either exerce this right themselves in a regular assembly, or give this right in perpetuity to certain persons; the consequence is, that he who is chosen by the one or the other of those who hath the right of choosing, ought to be held as Sovereign, provided he accepts of the sovereignty offered to him, and be qualified according to the fundamental laws of the state to rule and govern; and provided the election be made in the order, and with the solemnities required by the public laws, or the customs of the state.†
What is an interregnum in an elective state?Moreover, it is evident, from the definition of an elective government (§138), that in it an interregnum happens, that is, a state in which the republic hath no Head or Sovereign, as often as the Sovereign dies or abdicates, or is deposed by the people; unless the people, during the Sovereign’s life, and with his consent, choose one who is to succeed to him; and that the designed successor hath no more power or right, during the Sovereign’s life, but what is given to him by the people with his consent, or what the Sovereign himself delegates to him, either during his absence, or when he is hindered by any just cause from presiding over the state himself.*
Whether the republic subsists in an interregnum?But since an interregnum is a state in which the republic hath not its regular or ordinary Head or Sovereign (§139); and yet the people would not have the republic to cease, while it is consulting about the choice of a new head; the consequence is, that certain extraordinary magistrates ought to preside in the republic during that interval, by whatever name they may be called, who ought either to be elected by the suffrages of the orders in the republic at that time, or which is safer and better, be appointed by a public law before hand, making provision for the security and good order of the state on such occasions; but that their authority ceases when a Sovereign is elected, is obvious. However, since they supply the Sovereign’s place for a time, it is strange to find learned men disputing whether the republic truly subsists in an interregnum, and what frame it falls into in that situation.*
Of succession in kingdoms where the people hath made no settlement with regard to it.Empire is successive when by the decree of the people a royal family is elected, one of which is always to have the supreme power, while any one of its posterity is capable of holding it by the public constitutions. When such a form of government is agreed upon, either the people determine the manner of succession, or leave it undefined. In the latter case, the people is presumed to have approved of the common right of succession to intestates. But, because females are not presumed to have so much prudence as men (§44), and because a kingdom might happen to pass by a woman to a foreigner as dowry, therefore women are not admitted to succession but as subsidiaries, and failing male-heirs. In fine, since unity of will is, as were, the life and soul of a republic (§114); and this cannot be expected, if two or more have the joint administration of a monarchical kingdom, or share it between them; the consequence is, that among many equally near to the last king, the first-born is justly honoured with the prerogative (l. 1. §297).*
What when the people hath settled it.When the people hath settled and fixed the order of succession, it is plain that this rule ought to be adhered to (§111), and whether the French constitution take place, by which females are excluded; or the Castilian, which doth not exclude the women, but postpones them to the men, and runs back to the female again, in case the males, who were superior or equal to them in other respects, shall happen to fail, together with their issue; (i.e. in the same degree of the same line, the younger males are preferred to the elder females; yet so as that no transition is made from one line to another on the bare obstacle of the sex); or whether greater regard be had to the line, or to the nearest degree of kindred; or whether there be any new or unusual method of succession fixed by the public law, that rule, whatever it be, ought to be observed as a sacred, as a fundamental constitution; whence, moreover, we conclude, that a people may give their Sovereign the power of appointing his successor, and may interpose when disputes arise about the right of succession; tho’ experience teaches us, that (to use the words of Ennius) in such a difficult situation, “Non in jure manum conseri, sed mage rem ferro agi”; it is not right, but the sword that decides.*1
Ordinary and extraordinary interregnum.Since in elective government a single person only is chosen (§138), but in successive governments a royal family is elected (§141); because, in the first case, the right expires with the person elected; whereas, in the latter, it subsists while the royal family subsists; the consequence is, that in the first case there is an ordinary interregnum upon the decease of the elected person; in the latter, there is an extraordinary interregnum, when the royal family is extinct; and then it falls into the power of the people to confer the regal honour upon any family they please, and to continue the same kind of government and order of succession, or to confine both within more narrow limits, as they shall think fit.*
How empire is acquired by force.Those are the ways of acquiring empire when a people constitutes its own Sovereign; but it is often acquired by arms and force; in which case also, a conquered people, tho’ forced, does yet, without all doubt, consent to that sovereignty under which they are brought; and whether the conqueror promises to govern them according to their former laws, or stipulates to himself and his successors new terms and larger power, or remits to the conquered people some things which their former princes arrogated to themselves, that rule must be the rule to their posterity.†
The division of kingdoms into patrimonial and usufructuary.Wherefore all the ways of acquiring empire depend upon the consent of a people either voluntary, or forced and extorted either by a just or unjust cause. And therefore we think there is very little foundation for the distinction between patrimonial and usufructuary empire. For tho’ Grotius first invented that distinction (of the rights of war and peace, 2. 6. 3. & 1. 3. 12.) and hath been followed in it by a numerous tribe of learned writers; yet this whole doctrine is loaded with so many difficulties, that we cannot tell what kingdoms may be called patri-monial, and what usufructuary. See Thomas. ad Huber. de jur. civ. 1. 3. 2. 15. p. 69. & seq.
Whether this division be just?Grotius thinks some kingdoms are so much under the dominion of their Sovereigns, that they may be alienated by them either in their life, or in the prospect of death; and these he calls patrimonial. And that others are such, that their Sovereigns cannot alienate them, which he calls usufructuary ones; tho’ Thomasius jurisprud. divin. 3. 6. 135. thinks they may be more properly called fideicommissory or trusts. But, 1. Since patrimonial things are no longer common (l. 1. §235) and therefore not public, because that supposes at least private communion (l. 1. §237), it is plain that a kingdom ceases to be a republic, and degerates into a family (§89), if it be in the dominion or patrimony of one. Besides, 2. Since all civil states are constituted, not for the sake of the Sovereign, but for common security (§105); for that reason, a kingdom cannot be patrimonial, without ceasing to be a civil state. See a dissertation of the illustrious president of this province, Jo. Gothofredi de Cocceiis, de testamentis principum, part 2. §16. & seq.*2
The alienation of kingdoms without the consent of the people is unlawful.Hence we think it may be justly concluded, that no Sovereign can sell, give, barter, divide, leave by last-will to any one his kingdom, or transfer it in any of those ways, one can dispose of his patrimony in his life, or in view of death to others, unless the people consent, or have given him expresly the power of alienating his sovereignty or disposing of it.†
[5 ] Hippodamus Thurius, Peri eudaimonias (De felicitate), in Diogenes Laertius, De vitis, dogmatis et apophthegmatis clarorum philosophorum.
[6 ] Harrington, Aphorisms Political, no. 85, in Political Works, 773.
[7 ] Turnbull is referring to Harrington. The following sections are a summary of Harrington’s central ideas, mostly from Oceana.
[8 ] Tacitus, Histories I.16.28.
[9 ] Harrington, The Oceana and Other Works of James Harrington,Esq., 70 (see Political Works, 198–99).
[10 ] An adage of Julius Caesar: “Either I shall find a way or I shall make one.” As Liljegren points out, this adage is probably a later invention; it has no warrant in Caesar or in any of the ancient commentators on him (James Harrington’s Oceana, 282).
[11 ] This is a selective quotation from Plutarch’s life of Lycurgus, chap. 8 (Plutarch, Lives, vol. 1, “Lycurgus,” 227–29).
[12 ] Harrington, The Oceana and Other Works, 57 (Political Works, 184).
[13 ] The suffetes (“suffes”) were the supreme executive magistrates of the ancient republic of Carthage and later were considered comparable to the judges in Israel.
[* ] We are now speaking of a republic properly so called, which we defined to be a multitude of people united together under a common head for their security, and independent of all others (§103). And therefore, a people conquered and brought under power by a conqueror, is not a republic, but a province, because subjected to others. For the same reason, a multitude of people, united indeed under a common magistracy, but subjected to a large kingdom or republic, does not properly come under the appellation of a republic, but of a town-corporate: Wherefore the civilians frequently call such towns-corporate republics, and thus make mention of the republic of Antioch, l. 37. D. de reb. auct. jud. possid. of the republic of the Heliopolitani, l. 4. C. qui pot. in pign. of the Tusculans, l. 38. §5. D. de legat. of the Sebastiani, l. 21. §3. D. de ann. leg. of the Arelatenses, l. 34. D. de usu & usufruct. leg. of the Sardiani, l. 24. D. de ann. legat. yet when they speak more accurately, they deny those to be absent on account of the republic, who are sent upon a commission by a city, l. 26. § ult. D. in quibus causs. mai. It is therefore of consequence how we use the word republic.
[* ] This is the doctrine of Franc. Hotoman. Stephen Junius Brutus, (under which fictitious name some think Hub. Languetus, others think Buchanan lurked) Sidney, Althusius, Pareus, Jo. Milton, and others, of which authors see besides the observ. Halenses, 6. 1. Jo. Franc. Budd. hist. juris naturae & gentium, §52. [[Heineccius argues against the leading (Protestant) theories of resistance (the so-called Monarchomachs as set out in the following: François Hotman (1524–90), Francogallia (1573); Stephanus Junius Brutus, pseudonymous author of one of the most influential Huguenot writings on resistance, Vindiciae contra tyrannos, 1579; Algernon Sidney, Discourses; Johannes Althusius (1557–1638), Politica (1603); David Paraeus (1548–1622), German Protestant theologian, In divinam ad Romanos S. Pauli Apostali epistolam commentarius; John Milton (1608–74), A Tenure of Kings and Magistrates (1650) and A Defence of the People of England (1658) (in Milton, Political Writings). The “observ. Halenses” are the Observationum selectarum ad rem literariam spectantium. The final reference is to Johannes Franz Budde’s Historia juris naturalis. But the fundamental error by which they are misled into allowing power and authority over kings, lies in their making the constituent superior to the constituted; for that principle being presupposed, the people which constitutes their prince or head (111), must be superior to the prince or head constituted by them. Now this doctrine is no less absurd than it would be to say, that a servant who hath voluntarily subjected himself to a master (§78), is superior to his master, because he constituted him such. See Grotius of the rights of war and peace, 1. 3. 8. Zach. Huber. diss. l. 2. p. 124. Zacharias Huber (1669–1732), Dissertationes juridicae et philologicae. He was the son of Ulrik Huber (see note on pp. 441–42). Reason rather tells us, that he cannot be superior who hath subjected himself to another’s will, having thus renounced his own will. And therefore, since a people does so when they unite into a republic (§128), with what front can they call themselves superior to their sovereign?]]
[* ] The tenets of Machiavel and Hobbes are well known. Nor is the controversy so warmly agitated between the authors of books intitled, Julianus and Jovinianus, and other learned men in Great Britain, less notorious. [[The debate was about the prospect of a Catholic king when James, Duke of York, was heir to the throne, and about the implications this had for the status and character of the Anglican church. More particularly, Turnbull refers to a fierce pen-fight between Samuel Johnson (1649–1703) and George Hickes (1642–1715), both Anglican clergymen. The former’s Julian the Apostate (1682) likened James to the fourth-century emperor and thus drew a parallel between resistance to a pagan and a Catholic ruler. Hickes’s answer, Jovinian (1683), invoked the eponymous Roman monk (d. ca. 406) who fought against fashionable asceticism by denying any inherent value in celibacy and simple living. After 1689, Hickes became a non-juring bishop, Johnson a prominent Whig pamphleteer. Grotius of the rights of war and peace, 1. 3. 8. is thought by not a few, to have given some handle to this doctrine of passive-obedience and non-resistance. But whether a people is subdued by force, or consents voluntarily to their subjection, it is unlawful, highly criminal for a prince to injure his people, or oppress them in a hostile manner. For in the first case, the people laid aside their hostile disposition, when they surrendered or gave themselves up. And in the latter case, the prince has no power but what was transferred to him by the people, which none will say was a power to maletreat them like slaves. That passage, 1 Sam. viii. 11. gives no authority to such abuse; for whether we understand the jus regis there mentioned to be a narrative of fact and custom, as jus latronis is used, l. 5. D. ad leg. Pomp. de parricid. or of the dominium eminens, as the Jewish doctors interpret it, and with them Thomasius ad Huber. de jure civit. 1. 2. 7. 13. p. 58. Thomasius, Annotationes ad Ulrici Huberi libros tres de jure civitatis; Ulrik Huber (1636–94) was a Dutch jurist at the University of Franeker, later at Utrecht and Leiden or of jus, right, so far obligatory that it may not be resisted, as jus is used by Paullus, l. 11. de just. & jure, and as V. A. Zach. Huber explains this place, ibid. p. 237, it cannot be proved from thence, that sovereigns have any such right as Machiavel and Hobbes, and their disciples, a slavish race, have dared to attribute to them. Surely a good prince will never arrogate such power to himself,Qualis apud veteres divus regnabat Ulysses,Qui nulli civi dicto factove nocebat.Scilicet hoc hominem Dis immortalibus aequat.
“Among the ancients, Ulysses was such a divine king; he harmed no citizen in word or deed. Surely this makes a man equal to the immortal gods.” The source of this quotation is not clear.]]
[* ] Thomas. ad Huber. de jure civ. 1. 9. 2. 20. p. 316. hath treated largely on this subject. The example of Henry IV. Emperor, if it be carefully attended to, will sufficiently convince any one how dangerous it is to allow the people a right of judging of this matter. He was a most brave prince, and his only design was to recover to himself the rights of empire and sovereignty, extorted from him in his minority. The clergy, to whom that was imputed, were chafed; and it was easy to them to misrepresent and traduce a young headstrong prince, zealous of his rights, as an enemy to the church and state, not only to the populace, but even to the princes of the empire called secular, nay, and to Pope Gregory; and thus so to dispose things, that an excellent prince, tho’ he had an army that was for the most part victorious, was strip’d by his own son of his kingdom and all his wealth, as an enemy to the church and state. So perilous is it to allow not only the populace, but even the nobles, to judge of the actions of princes. [[A reference to the so-called investiture contest between Emperor Henry IV (1050–1106) and Pope Gregory VII, which culminated in 1077. The dispute was linked to a revolt by the German princes against the emperor.[I cannot go further without observing, that it is surprizing to find so distinct and clear an author, after he had laid down principles that lead, as it were, by the hand, to the true conclusion about the rights of subjects, giving and taking in such a manner upon this subject, that one cannot tell what he would be at. But Grotius, Pufendorff, and all the writers of systems of the laws of nature and nations, treat this important question in the same manner. I shall not stay here to observe, that our Author runs into the common mistake about Machiavel’s doctrine; so unaccountably are that excellent politician’s writings misunderstood. Our Harrington, tho’ he differs from him in several points, has done justice to him, and shewn him to be a friend to liberty, and to have understood the true principles of politics better than most writers on the subject. But let me take notice, that the excellence of our constitution appears from this, that our country has produced the best treatises on government: In this matter we have left all other countries far behind. Mr. Barbeyrac, in his notes on the chapters of Grotius and Pufendorff relative to government, has done us justice in this point, and indeed in every thing. He hath set his Authors right in this matter by the help of our Sidney, Locke and others. And no where is this subject more fully and accurately handled than in an excellent treatise upon the measures of submission, published at a very seasonable time, by an inimitable defender of the rights and liberties of mankind (Dr. Hoadley Bishop of Winchester) Benjamin Hoadley (1676–1761), controversialist and successively bishop of Bangor (1716), Hereford (1721), Salisbury (1723), and Winchester (1734); Turnbull is referring to Hoadley’s Measures of Submission whose name will be precious in our country, while the value of our constitution is known, and we preserve a just sense of the best privileges men can enjoy, or God bestow; privileges we cannot part with without the greatest of crimes, because we cannot give them up, without degrading ourselves into a state far below that for which God designed men, by making them rational and free agents. Our Author lays a mighty stress upon this maxim, That the inferior cannot call the superior to account. But is there any absurdity in our excellent Hooker’s Richard Hooker (ca. 1554–1600), Anglican theologian distinction between singulis major and universis minor? “Singulis major”: “greater/more powerful than the individual citizens”; “universis minor”: “less powerful than the citizenry as a whole.” I am to return to this momentous question afterwards. But what an odd jumble is our Author’s doctrine upon this article, when all he says is brought together? It amounts briefly to this: “A prince has no right to injure his subjects: It is unlawful or criminal in him to do it; and they are base flatterers who tell princes they may do what they please; but God alone can judge when they do injure their subjects; the people hath no right to judge of the matter; and if they should, in extreme misery, feel they are injured, all they, who may do every thing in that case to recover their rights, have a right to do, is to leave their dear native country.” Who would have expected to have found our Author talking any where in such a manner? Let us oppose to this a few things, first from Mr. Sidney. “They who create magistracies, and give to them such nature, form and power as they think fit, do only know whether the end for which they were created be performed or not. They who give a being to the power which had none, can only judge whether it be employed to their welfare, or turned to their ruin. They do not set up one, or a few men, that they and their posterity may live in splendor and greatness; but that justice may be administred, virtue established, and provision made for the public safety. No wise man will think this can be done, if those who set themselves to overthrow the law are to be their own judges. If Caligula, Nero, Vitellius, Domitian, or Heliogabulus had been subject to no other judgment, they would have compleated the destruction of the empire. If the disputes between Durstus, Evenus III. Dardanus, and other Kings of Scotland, with the nobility and people, might have been determined by themselves, they had escaped the punishments they suffered, and ruined the nation, as they designed. Other methods were taken; they perished by their madness; better princes were brought into their places, and their successors were by their example admonished to avoid the ways that had proved fatal to them. If Edward II. of England, with Gaveston and the Spencers, Richard II. with Tresilian and Vere, had been permitted to be judges of their own cases, they who had murdered the best of the nobility would have pursued their designs to the destruction of such as remained, the enslaving of the nation, the subversion of the constitution and the establishment of a mere tyranny, in the place of a mixed monarchy. But our ancestors took better measures. They who had felt the smart of the vices and follies of their princes, knew what remedies were most fit to be applied, as well as the best time of applying them. They found the effects of extreme corruption in government, to be so desperately pernicious, that nations must necessarily suffer, unless it be corrected, and the state reduced to its first principle, or altered. Which being the case, it was as easy for them to judge whether the governor, who had introduced that corruption, should be brought to order, or removed, if he would not be reclaimed, or whether he should be suffered to ruin them and their posterity; as it is for me to judge whether I should put away my servant, if I knew he intended to poison or murder me, and had a certain facility of accomplishing his design; or whether I should continue him in my service till he had performed it. Nay, the matter is so much the more plain on the side of the nation, as the disproportion of merit between a whole people and one or a few men entrusted with the power of governing them is greater than between a private man and his servant.” Discourse upon government, chap. 3. §41. The same author, chap. 3. §36. observes, “Neither are subjects bound to stay till the prince has entirely finished the chains which he is preparing for them, and has put it out of their power to oppose. ’Tis sufficient, that all the advances which he makes are manifestly tending to their oppression, that he is marching boldly on to the ruin of the state.” Sidney, Discourses Concerning Government, 1704 ed., chap. 3, sec. 41, p. 399. There are some minor discrepancies between Turnbull’s first quotation and the 1704 text. The second quotation (chap. 3, sec. 36) does not appear in Sidney’s Discourses at all. Turnbull, clearly, is using Barbeyrac’s note 1 on Pufendorf’s Law of Nature and Nations, bk. 7, chap. 8, sec. 6, rather than Sidney’s text as the source of these quotations.
The second is from Mr. Locke on government, chap. 18. §209. See Locke, Two Treatises of Government, bk. II, chap. 18, §209–10. It is as impossible for a governor, if he really means the good of the people, and the preservation of them and the laws together, not to make them see and feel it; as it is for the father of a family not to let his children see he loves and takes care of them (§210). How can a man any more hinder himself from believing in his own mind which way things are going, or from casting about how to save himself, than he could from believing the captain of the ship he was in was carrying him and the rest of his company to Algiers, when he found him always steering that course, tho’ cross winds, leaks in his ship, and want of men and provisions, did often force him to turn his course another way for some time, which he steadily returned to again, as soon as the winds, weather, and other circumstances would let him. But it will be said, this hypothesis lays a ferment for frequent rebellion. No more, says Mr. Locke, than any other hypothesis. “1. For when the people are made miserable, and find themselves exposed to the ill usage of arbitrary power, cry up their governors as much as you will for sons of Jupiter, let them be sacred and divine, descended or authorized from heaven; give them out for whom or what you please, the same will happen. The people, generally ill-treated, and contrary to right, will be ready, upon any occasion, to ease themselves of a burden that sits heavy upon them. 2. Such revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be born by the people without mutiny and murmur. 3. This power in the people of providing for their safety anew by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the most probable means to hinder it. For rebellion being an opposition, not to persons, but authority, which is founded only in the laws and constitutions of the government; those, whoever they be, who, by force, break through, and, by force, justify the violation of them, are truly and properly rebels.” Ibid., chap. 19, §224–26. The principle upon which all this depends is self-evident, and clearly set forth by the same author, book 2. cap. 4. “No man can so far part with his liberty, as to give himself up wholly to an arbitrary power, to be treated absolutely as that power thinks proper: for this would be to dispose of his own life, of which he is not master. Much less has a whole people such a right, as every one of those who compose it, is intirely destitute of. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man in society, is to be under no other legislative power, but that established by consent in the common-wealth; nor under the dominion of any will, or restraint of any law, but what the legislative shall exact according to the trust put in it;—as freedom of nature is to be under no other restraint but the law of nature. This freedom from absolute arbitrary power is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his life and preservation together.” Ibid., chap. 3, §22, apart from the first two sentences in this quotation, which seem to be a paraphrase rather than a quotation.
The third is from Dr. Hoadley’s measures of submission, (the defence) p. 70. Hoadley, Measures of Submission, 70 “Supposing some should apply this doctrine, which only concerns the worst of governors to the best, and oppose good princes, under pretence that it is lawful to oppose tyrants and oppressors, this cannot affect the truth of the doctrine; nor doth the doctrine in the least justify or excuse them, but rather condemns them. Our blessed Lord hath laid down a very reasonable permission in his gospel, that husbands may put away their wives in case of adultery, and marry others; and is this ever the less reasonable, because wicked men, under the cover of this, may put away the most virtuous wives, and take others merely for the gratification of their present inclinations? Or doth this permission of our Lord’s justify all pieces of wickedness that may be acted under the pretext of it? It is certainly true, that magistrates may, and ought to punish and discourage evil men, and disturbers of human society: And is this ever the less true, because some magistrates may, under the pretence of this, punish and afflict the best and most peaceable subjects? It is certainly true that a child may resist a father, if he should attempt to take away his life: And is this ever the less true, because a child may, through mistake, pretend against a good father, that he hath designs against his life, and, under that pretence, dishonour and resist him? It is agreed upon on all hands, as a good general rule, that men ought to follow the dictates of their consciences: But surely this rule is not made false; nor can it be supposed to justify a man, if he should be so void of understanding, as to be directed by his conscience to murder his parent or his prince, as a point of indispensable duty.”
In this excellent treatise, all the objections against the doctrine of liberty, and all the monstrous absurdities of the opposite doctrine of passive-obedience and non-resistance are fully handled with uncommon strength and perspicuity of argumentation. But our author may be refuted in a few words from his own principles. He says expresly, (§129 in the scholium), that a prince has no right to shew a hostile disposition, or to injure even a subdued people, Nefas est principi, &c. Now, is not obligation the correlate of right; and have not then a people a right to demand, exact, nay, force (i.e. a perfect right, according to his own definition) their prince to treat them uninjuriously, that is justly. If a prince has no right to injure, he is obliged not to injure; but if he be obliged not to injure, the people whom he is obliged not to injure, hath a right to demand just treatment from him, and to keep off injuries, otherwise a prince may be under an obligation to a people, and yet the people may acquire no right by that obligation to them. If the law of nature extends to all men, it extends to those vested with power, as well as to those under power; now, as far as the law of nature extends, the law of justice and benevolence, or in one word, the law of love extends; for that is the sum and substance of the law of nature. But so far as the law of love extends, justice is of perfect obligation, and benevolence is of imperfect obligation: Princes therefore, being under the law of nature, are perfectly obliged to justice, and imperfectly obliged to benevolence. Now, since none (as our Author often says) can be under an obligation, without giving some right to some other; it is plain a prince cannot be under the perfect obligation of justice, and the imperfect obligation of benevolence, without giving the people, to whom he is perfectly or imperfectly obliged, a perfect or imperfect right, correspondent to these his different obligations to them. The people therefore must have a perfect right to justice; that is, according to our Author’s definition of perfect right, they must have a just title to exact, to demand, nay, to force it. There is no avoiding this conclusion from our Author’s own principles, but by saying what he denies, and never will say, “That men are only under the law of nature till they have got subjects some how or other under their power; and that then power is right, and they are no more under the law of nature.” For unless this be asserted, whether a people be subdued, and, to make the best of their misfortunes, hath surrendered themselves to their conqueror as their prince; or whether a people voluntarily and freely chooses to subject themselves to one or many as their governors, it must be true that a prince is under perfect obligation to justice, in the treatment of his subjects; and consequently, that they have a perfect right to force justice from him. No misfortunes can, and far less can voluntary consent destroy or annul the law of nature. And therefore the right to justice common to all men, can neither be annulled by the superior force of arms, nor given up by voluntary consent. To say that the people, tho’ they can judge of the obligations of other men to justice by the law of nature, yet cannot, or have not a right to judge of the obligations of their prince to justice by the law of nature, is either to say, that men in civil government give up not only their understandings, but their senses and feeling; or it is to say, that tho’ they may still see, feel and understand injustice, yet by putting themselves under a prince, they put him in a state that exeems him from all obligation to justice, and consequently annuls their right to it; which is to say, that civil government annuls the law of nature; and which of these two is most absurd, is difficult to determine. To say the people have in civil government a perfect right to justice, and that the princes are by the law of nature perfectly obliged to render justice to their subjects; and yet that the people have in the case of unjust treatment by their governors or princes, no right left to them, but that of leaving their dear native country, is to say they have a perfect right, the exercise of which is unlawful; a perfect right which is no right at all. And to say the right of subjects to justice under civil government, is a perfect right to demand and exact justice from their governors, every way but by taking up arms, is to speak of a right not defined by our Author, or any writer on the law of nature and nations, by all of whom, either in our Author’ words, or in others equivalent to them, right is divided into perfect and imperfect; and right to justice is called perfect right. So that our Author must give up his conclusions in the preceding sections, or he must say, That civil government being constituted, the right of subjects to justice from their governors, becomes, instead of a perfect right, an imperfect one, as the right to benevolence: nay, which is more, he must say, That, tho’ in a state of nature a right to benevolence may become, by the law of necessity, a perfect right (as our Author hath often said it may), yet in a state of civil government, the right to justice, even in extreme necessity, is none at all. For sure that right becomes none at all, which extends no farther than to the right of tamely leaving one’s native country when one cannot have justice, but is injuriously used, which is the whole of the right of subjects according to our Author, notwithstanding the full and perfect obligation of princes to justice. We may reason thus against our Author from his own concessions, his own principles. But does it indeed require any proof, that miracles from heaven cannot prove any person to have a right to exerce his power over those who are under it, whether by consent or force, in an injurious, cruel, oppressive manner? Miracles from heaven could not prove the doctrine of passive-obedience and non-resistance to be a doctrine of God. It is an immoral doctrine, which overturns the law of nature, and destroys all moral obligations. Whence could our Author, or any writer on the laws of nature, derive his conclusions, without laying down this fundamental principle, as our Author does, “That God wills the perfection and happiness of mankind, and gives them a right to make themselves happy?” But is not this principle given up, the moment it is asserted, That under civil oppression and tyranny, because it is the effect of power, submitted to for common preservation, safety and happiness (the only end of civil society) men must put up contentedly with all hardships, injuries and abuses, and no more think of any probable means to make themselves happy, of any probable means, should I not rather say, to rescue themselves from misery into a state somewhat congruous to the natural dignity of mankind, and to the only intention, God can be supposed, without blasphemy, to have had in view by creating them such as they are made, for religion, virtue, industry, ingenuity, social commerce, and all the goods, wisdom, benevolence, religion, virtue, good government, art and united strength can procure to human society, many of which blessings may be attained to in some degree in a state of nature, but can never be attained to in any degree under absolute slavery, or despotic, injurious, lawless tyranny.]]]
[* ] All these are confounded by several writers, who having applied themselves to the study of public law, have acted as if it had been their business, like Plautus’s cooks, to mingle and confound the most distinct rights. Having read in Feud. 11. §6. some things concerning regal rights usually joined with fiefs, they thought them the very same with the rights of majesty, tho’ it be of great consequence whether one exercise the rights of regality as a vassal, or dependently, as it is commonly termed; or the rights of majesty as a sovereign, or independently. Besides, all the rights belonging to sovereignty, and which are exercised by it, not being recited in that place of the feudal law, they thought, that there the rights which could not be communicated to vassals without encroaching upon majesty were only treated of; and hence they called them regalia minora, to which they oppose regalia majora, i.e. in their opinion, incommunicable ones. Thus several writers have proceeded, who are solidly refuted by Thomasius ad Huber. de jur. civ. 1. 3. 6. 3. p. 91. & seq. But since we are not treating here of the rights of patronage and vassalage, but of public and universal law, it is proper to caution against the above division, and to deduce the rights of majesty and their different kinds from the nature and end of civil society, i.e. from the fountain-head, rather than from Henningius Arnisaeus, Regn. Sixtin, and other authors of that class. [[Henning Arnisaeus (ca. 1575–1636) and Regnerus Sixtinus (1543–1617) were authors of juristic and political treatises.]]
[* ] The most potent and flourishing Kingdom of Great Britain is an example of this, in which the prerogative of the King with regard to war and peace, remaining entire and unviolated, neither new laws are made, nor new taxes imposed, nor any other thing relating to the safety and glory of the nation done, but in the states of the Kingdom, called a Parliament. Thus likewise in Germany, nothing relating to the Empire is decreed but by the common resolution of the Emperor, Electors, Princes, and other orders of the Empire: And almost the same is now done in Poland and Sweden, with safety to the prerogatives belonging to the most august Emperor and these most potent Kings: which prerogatives are called in Germany reservata. Yea, some such thing takes place in particular sovereignties and republics of the German Empire, as is observed by Hertius de legibus consultat. & judic. in specialibus Imp. Rom. Germ. rebuspubl. [[Hertius (praeses) and Ehrhart (respondens), Dissertatio de consultationibus, legibus et judiciis in specialibus Germaniae rebuspublicis.]]
[* ] Thus, when the right of governing is included in a few families, seclusive of all the rest, so that they and their descendents only have it by right of blood, aristocracy in this case is successive. Such are the republics of Venice, Genoa, &c. at this day, as is observed by Hertius, Elem. polit. 1. 10. 16. p. 212. On the other hand, if the nobles or senators be chosen, either by the people or by the college itself, then aristocracy is elective. See Huber. de jur. civ. 1. 8. 1. 17. p. 292. In like manner, if in a democracy the right of suffrage be given to no others but the native citizens, it is in some sort successive; but if it may be given likewise to strangers, it is in some respect elective.
[† ] Wherefore, those are not lawful princes who are set up by a seditious mob, or an army, which hath not the right of election. What confusion and ruin was brought upon the Roman state in the latter way, we may see from the examples of Otho, Vitellius, Vespasian, Pescennius Niger, Clodius Albinus, and Septimius Severus. [[These were Roman emperors at times of political turmoil. Otho was briefly emperor in ad 69 but was replaced by Vitellius. In the same year, however, Vitellius was defeated and succeeded by Vespasian. Pescennius Niger was proclaimed Roman emperor by his troops in ad 193 but was defeated by Septimius Severus, who ruled as emperor from 193 until 211. For which reason, Plutarch in his life of Galba, p. 1053 Plutarch, Lives, vol. 11, 209, speaking of a time, in which, as Tacitus, hist. 1. 4. says, this arcanum of empire was divulged, that a prince might be made any where else as well as at Rome, “affirms, that the Roman republic was shaken and convulsed by commotions like those of the Titans in the fable, the sovereignty being at that time bandied from one prince to another, by the avarice and licentiousness of the army, who being corrupted by bribes and largesses, drove out one Emperor by another, as we do a nail by a nail.” See Petri Cunaei, orat. 9. p. 188. Presumably Petrus Cunaeus, Orationes argumenti varii (Leipzig, 1735). It therefore greatly concerns a civil state, in whom the elective power is lodged, to define by clear and fixed laws, the electors and the persons capable of being elected, and the form and method of choosing, that it may not suffer such violent convulsions.]]
[* ] For since it is one thing to abrogate sovereignty from a sovereign, or divest him of it, and another thing to nominate a successor to him, the designed successor can have no right to take possession of the sovereignty, but when the sovereign is abrogated. Hence we may observe, that the Kings of the Romans, who are sometimes chosen in the Emperor of Germany’s life, have no power unless the Emperor delegates some to them, as we know Charles V. did. [[Charles V (1500–1558) transferred power to his brother Ferdinand, who was elected Roman King on January 5, 1531; that led effectively to the division of the Habsburg monarchy. After Charles’s death, Habsburg Spain was ruled by his son Philip II and Habsburg Austria by Ferdinand. The election of the future emperor during the lifetime of the present incumbent (“vivente imperatore”) increased the influence of the ruling Habsburgs over the seven (after the Peace of Westphalia in 1648, eight) prince electors. The case is almost the same with regard to co-adjutors, as they are called, who while the bishops or prelates live, have no other right but that of succeeding them, when their chairs come to be vacant, as they speak. See Boehmer. jur. eccles. protest. 3. 6. 23. Justus Henning Boehmer (1674–1749), German jurist and poet, professor of law at Halle and author of the Jus ecclesiasticum Protestantium, a major work on Protestant ecclesiastical law.]]
[* ] Pufendorff, of the law of nature, &c. 7. 7. 7. reasons thus about this matter: “Since the intrinsic perfection of the state, and the actual existence of the sovereign power, were both owing to the latter compact between the prince and the people, it follows, that the person in whom the sovereignty properly resided being extinct, the kingdom sinks into an imperfect form, and is united only by the first antecedent pact, by which we conceive the particular members of the community to have agreed to incorporate in one society; (of this pact we have treated §109) not but that the primitive pact uniting the general body, is during the time of an interregnum considerably strengthened and assisted by the endearment of a common country, and that kind of relation or affinity which results from thence, together with this consideration, that the fortunes of most men are rooted or fixed in that particular soil, and the effects of others not easily to be transported or removed. Tho’ we may with Livy, 1. 17. call a nation during an interregnum, a state without government, and, as it were, an army without a general; yet because communities at their first meeting, before the sovereignty hath been conferred either on a single man, or on a council, seem to bear the semblance of democracies; and further, since it is natural that all persons upon the decease of him, to whom they committed their guidance and safety, should take care of themselves, therefore an interregnum hath the appearance of a kind of temporary democracy.” This is also observed by Grotius of the rights of war and peace, 1. 3. 7. Hertius follows the opinion of Pufendorff, Elem. prud. civ. 1. 12. 14. and also Houtuyn. Polit. general. §100. n. 6. & seq. [[Adrian Houtuyn, Politica contracta generalis. But since for the most part an interrex is previously designed, or if not, some one or more persons are elected by the common suffrage of all the orders in the state, who for a time preside over the republic with the same power, and sometimes with larger power than the Sovereign himself is vested with; and exercise all the rights of Majesty, about things at least which do not admit of delay; there is no imaginable reason why this constitution of a state, tho’ temporary, may not be called perfect, and monarchical, if this power be lodged in one hand, duarchical if in two, and aristocratical if confided to many, as it were intercalar princes.]]
[* ] There are some who have pronounced females quite unqualified and inhabile to succeed to sovereignty, as Jo. Bodinus, but upon principles of Roman law, which do not bind free nations. And since even in the Jewish state, Deborah executed the office of a judge with great honour, and the annals of almost all nations celebrate Queens who acquired immortal glory to themselves by their prudent government and great actions; who will declare women unworthy of reigning? However, since nature hath generally given a pre-eminence to men above women, it is not absurd to say, that they ought only to be called to succession as subsidiaries. So Aristotle, Polit. 1. 3. “A man is more fit by nature to reign than a woman, unless she hath some qualities very uncommon to her sex.”
[* ] Many examples are brought by Pufendorff of the law of nature, &c. 7. 7. 14. But the most regular way is the lineal, in which the first-born male, and his first-born male succeed, while any one of the line remains; and this line being extinct, the first-born of the next line comes in, and so on while there is any one subsisting of the first Sovereign’s posterity. We know it was formerly disputed whether the first-born, tho’ born before his father came to the throne, or the first-born after he began to reign, had the right of primogeniture. But since in the right of primogeniture, regard is had to the order of birth only, there is no reason why a younger brother should be preferred to his elder, merely because the court heard the former squaul in a purple cradle.
[1. ] Actually: “Non ex iure manu consertum, sed magis ferro” (Ennius, Annals, bk. 8, l. 252).
[* ] We have an example of this in the French history. See Glab. Radulph. Hist. 2. 1. and Aimon de gest. Francorum, ann. 987. “Convenientes totius regni primates Hugonem, Ducem Parisiensem, in regem ungi fecerunt.” [[Glaber, The Five Books of the Histories; The Life of St. William, bk. 2, chap. 1, 50; Aimon de Fleury (965–1008), Historiae Francorum libri IV: “The leading men of the whole kingdom met and had Hugh, Duke of Paris, anointed king.” And in Russia, when after various commotions, they chose a new royal family, from which came Alexius, John, two Peters, and Ann. For that Catharine the Empress did not succeed by right of succession, but by the last will of Peter I. every one knows.]]
[† ] Hence Grotius, of the rights of war and peace, says justly, 3. 8. 1. 3. “Empire may be acquired by victory, either as it subsists in a King or Sovereign, and then it is succeeded to just as it is, and no more power is acquired; or as it subsists in the people, and then the conqueror acquires it in such a manner that he can alienate it, as the people might have done.” But what he says of alienation, deserves a more accurate inspection. We say then, that a conqueror either waged war with a King only, or with the people themselves. In the first case he succeeds to the rights of the conquered prince, and ought to change nothing in the form of government, as, e.g. William Prince of Orange, the War with James being ended, made no change in the British government: But in the latter case, he has a right to transact with the conquered people, and it depends on his will to reduce the conquered state into a province, as the Romans for the most part did; to impose a harder yoke upon them; or to give a specimen of his clemency, and remit some things to them. Thus Alexander, at first a most merciful conqueror, having made himself master of the Sidonian Kingdom, made no change in the form of their government, but restored it to Abdolominus, Q. Curt. 4. 1. [[Curtius, History of Alexander, bk. 4.1. The Turks, on the other hand, having conquered the Byzantine Empire, by the right of victory, imposed upon them much severer conditions, being of the opinion of Ariovistus in Caesar, de bello Gallico, “That by the right of conquest, the conqueror may command the conquered as he pleases.” Caesar, Gallic War, bk. I, chap. 36, p. 55. In fine, Agesilaus, according to Xenophon de Agesilao Rege, cap. 1. §22. “Whatever states he subdued, he exeemed them from those things to which slaves are obliged by their masters, and only commanded those things in which freemen obey their magistrates.” Xenophon, “Agesilaus,” 71, in Xenophon, Scripta minora. But that indeed rarely happens, and much more rarely still what Justin hist. 1. 1. says of the times before Ninus, “That those who made war fought for glory, and satisfied with victory, did not affect empire.”]]
[* ] A patrimonial kingdom implies a contradiction, because a kingdom is a species of a civil state (§115); but a patrimonial kingdom is a thing under private dominion. And indeed the whole reasoning about this matter commonly runs in a circle. For, if you ask whether a prince has the right of alienating his Sovereignty or not? The answer is, That there is a great difference between patrimonial and usufructuary kingdoms. But if you insist, and enquire what is the difference between these two? they tell us, that by the former is meant a kingdom that can be alienated by its sovereign, and by the other, one that cannot: So that they have as yet given us no certain mark by which the one may be distinguished from the other. For nothing hinders why despotic kingdoms, or kingdoms acquired by war, may not be unalienable, as Huber has justly observed, de jure civ. 1. 3. 2. 18.
[2. ] H. von Cocceji (phrases) and J. G. Cocceji (respondens), Disputatio juridica . . . de testamentis principum.
[† ] Nor do the examples brought by Grotius, Pufendorff, and others, prove any thing. For tho’ we read that some have divided their kingdoms, and that others have disposed of them in their last wills; yet the justice of such alienations must be determined, not from what has been done, but from the principles of right reason. And therefore the illustrious Baron de Cocceiis, gives a proper answer to all these arguments, when he says, de testament. principum part 2. §17. “Either these alienations had no effect, or they were done with the consent of the people, either tacite or express; or it was force that prevailed.”