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CHAPTER VII: Of sovereignty, and the ways of acquiring it. - 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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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.†
Remarks on This Chapter
It will be easy to determine what the law of nature prescribes in other cases, if we can determine what it prescribes with respect to the exercise of the absolute empire, which is the effect of, and rooted by an over-balance in property. We have already taken notice of the natural causes of Empire, to which, if moral writers had attended, they would not have debated so much about the origine of civil government or Empire. If one man, it hath been said, be sole land-lord, or over-balance the many in property to a certain proportion, he will be sole monarch. But now, how ought such a land-lord, and absolute master, to exercise his dominion or empire? What rules does the law of nature prescribe to him? Doth it not prescribe to him these very immutable, universal laws of justice and benevolence, which have been already explained? In general, therefore, may we not answer, that such a master is under perfect obligation to exercise justice towards his subjects or servants, let them be called which you will, and under imperfect obligation to exercise beneficence towards them? But not to rest in so general an answer, the following propositions may be laid down with re-gard to such empire, in consequence of what hath been said by our Author, and in the preceding remarks subjoined to him, to his two last chapters in particular. 1. It is lawful to acquire and to possess dominion; for if it be lawful to acquire property, it must be lawful to acquire all that is necessarily attendant upon property, i.e. the dominion which an over-balance in property will necessarily produce. 2. As an attempt to change government, without changing the over-balance of property, or to fix government without a fixation of the balance of property, is an attempt contrary to nature; so to endeavour to violate property in order to change government, is unjust force. All violation of property is unjust. 3. But he or they who hold the over-balance of property, and consequently the reins of government, are certainly obliged by the law of nature to make their dependents as happy as they can, as much men as they can. This must be true, or the law of love is a mere empty sound. And therefore, 4. Tho’ it cannot be pronounced unlawful for one or many, who have the over-balance in property, to hold it, no more than it is for one or many, to make use of the authority their superiority in wisdom may give them; yet it is certainly unlawful to exercise power in consequence of property in an injurious, oppressive manner over dependents, as if they were not men; as it is unlawful to make use of superior prudence, or rather cunning, in order to deceive and mislead those who pay submission and reverence to it, to their ruin or hurt. 5. It is certainly the natural right, nay, the natural duty of a people, when providence puts it in their power, by any revolution bringing property to such a balance, that an equal happy government can be constituted, to constitute such a government, and to fix and secure its duration by the only natural way of fixing and securing it. This must be their duty, if it be a people’s duty to consult their best interest, or to provide for their own greatest good, and the secure continuance of happiness to their posterity. And then does providence give this opportunity, and consequently call to this duty, when by the course of things, without forcible removal, or violation of property, the people come to have the balance. And, 6. Whoever hold the over-balance of property, and by consequence the reins of empire, one or the few, he or they are under the same obligation, to constitute such orders of government as may best promote and secure the general happiness of the dependent people, that they are under to benevolence, because this is what benevolence manifestly requires at their hands. I have said the same obligation that they ly under to benevolence, because of the distinction already explained, which is admitted by all moral writers between perfect and imperfect obligation. And that it is a glorious and noble part to act, who can doubt, who hath a just idea of true glory, I had almost said, any feeling of humanity? Let it not be said that this cannot be expected of mankind. This is an unjust reproach. Our Author has, in the scholium to §144. named some instances of generous princes, who made no other use of the rights, even of just conquest, but to make the conquered happy and free. And let me add some other examples from ancient history yet more heroic, as they are narrated, by an author often referred to and quoted in our remarks, with great satisfaction, with all the joy every beneficent mind must needs be touched with, by such god-like instances of generosity and public spirit. “In those ancient and heroic times (when men thought that to be necessary which was virtuous) the nobility of Athens having the people so much engaged in their debt, that there remained no other question among these, than which of those should be King, no sooner heard Solon speak, than they quitted their debts, and restored the commonwealth, which ever after held a solemn and annual feast, called the Sisacthia or Recision, in memory of that action. Nor is this example the Phoenix; for at the institution by Lycurgus, the nobility having estates (as ours here) in the lands of Laconia, upon no other consideration than the commonwealth proposed by him, threw them up to be parcelled by his Agrarian.
The Macedonians were thrice conquered by the Romans, first under the conduct of Titus Quintus Flaminius, secondly, under that of Lucius Aemilius Paulus, and thirdly, under that of Quintus Caecilius Metellus, thence called Macedonicus. For the first time Philip of Macedon, who (possest of Acrocorinthus) boasted no less than was true, that he had Greece in fetters, being overcome by Flaminius, had his kingdom restored to him, upon condition that he should immediately set all the cities which he held in Greece and in Asia at liberty; and that he should not make war out of Macedon but by leave of the senate of Rome, which Philip (having no other way to save any thing) agreed should be done accordingly. The Grecians being at this time assembled at the Isthmian games, where the concourse was mighty great, a crier, appointed to the office by Flaminius, was heard among them proclaiming all Greece to be free; to which the people, being amazed at so hopeless a thing, gave little credit, till they received such testimony of the truth as put it past all doubts; whereupon they immediately fell on running to the proconsul with flowers and garlands, and such violent expressions of their admiration and joy, as, if Flaminius, a young man about thirty three, had not also been very strong, he must have died of no other death than their kindness, while every one striving to touch his hand, they bore him up and down the field with an unruly throng, full of such ejaculations as these: How! is there a people in the world, that at their own charge, at their own peril, will fight for the liberty of another? Did they live at the next door to this fire? Or what kind of men are these, whose business it is to pass the seas, that the world may be governed with righteousness? The cities of Greece and Asia shake off their Iron-fetters at the voice of a crier! Was it madness to imagine such a thing, and is it done? O virtue! O felicity! O fame!
In this example we have a donation of liberty to a people, by restitution to what they had formerly enjoyed, and some particular men, families or cities, according to their merit of the Romans, if not upon this, yet upon the like occasions, were gratified with Latinity: But Philip’s share by this means did not please him; wherefore the league was broken by his son Perseus; and the Macedonians thereupon, for the second time, conquered by Aemilius Paulus, their King taken, and they some time after the victory summoned to the tribunal of the General, where remembering how little hope they ought to have of pardon, they expected some dreadful sentence: When Aemilius in the first place declared the Macedonians to be free, in the full possession of their lands, goods and laws, with right to elect annual magistrates, yielding and paying to the people of Rome one half of the tribute which they were accustomed to pay to their own Kings. This done he went on, making so skilful a division of the country, in order to the methodizing of the people, and casting them into the form of popular government, that the Macedonians, being first surprized with the virtue of the Romans, began now to alter the scene of their admiration, that a stranger should do such things for them in their own country, and with such facility, as they had never so much as once imagined to be possible. Nor was this all; for Aemilius, as if not dictating to conquered enemies, but to some well-deserving friends, gave them, in the last place, laws so suitable, and contrived with such care and prudence, that long use and experience (the only correctress of works of this nature) could never find fault in them.3
In this example, we have a donation of liberty to a people, that had not tasted of it before, but were now taught to use it.
But the Macedonians rebelling, at the name of a false Philip, the third time against the Romans, were by them judged incapable of Liberty, and reduced by Metellus to a province.”
Now, with respect to incapacity of liberty, I beg leave to add a remark from the same author. “A man may as well say, that it is unlawful for him, who has made a fair and honest purchase, to have tenants, as for a government, that has made a just progress, and enlargement of itself, to have provinces. But how a province may be justly acquired appertains to another place.4 (Our author treats of just war afterwards; and this Author treats of propagation and holding at great length)—The course Rome took is best; wherefore, if you have subdued a nation that is capable of liberty, you shall make them a present of it, as did Flaminius to Greece, and Aemilius to Macedon, reserving to yourselves some part of that revenue which was legally paid to the former government, together with the right of being head of the league, which includes such levies of men and money as shall be necessary for the carrying on of the public work. For if a people have, by your means, attained to freedom, they owe both to the cause and you such aid as may propagate the like fruit to the rest of the world. But whereas every nation is not capable of her liberty to this degree, lest you be put to doing and undoing of things, as the Romans were in Macedon, you shall diligently observe what nation is fit for her liberty to this degree, and what not; which is to be done by two marks: the first, if she loves the liberty of mankind; for if she has no care of the liberty of mankind, she deserves not her own. But, because in this you may be deceived by pretences, which continuing for a while specious, may afterwards vanish; the other is more certain, and that is, if she be capable of an equal Agrarian; which, that it was not observed by excellent Aemilius in his donation of liberty, and introduction of a popular state among the Macedonians, I am more than moved to believe for two reasons. The first, Because at the same time the Agrarian was odious to the Roman patricians. The second, That the Pseudo-Philip could afterwards so easily recover Macedon, which could not have happened but by the nobility, and their impatience, having great estates, to be equalled with the people: For that the people should otherwise have thrown away their liberty, is incredible.”5
But because it will be very easy to draw a solution from the principles which have been laid down to all the questions about government; and because the enquiry, what constitution of government is best, belongs not to the present subject, we shall take leave of our author here, and add no more to what he says; but in the first place, That no maxim is more false than that whatever government is best administred is best.6 That only is good, which is, by its frame, well secured against bad men, and bad administration. 2. Nor is another maxim in politics less dangerous, which asserts that good men make good laws. It is the maxim of Demagogues. The truth is, that good laws or orders make good men. And a government ought to trust to its constitution and orders, and not to men. 3. The chief matter, the whole mystery of government is revealed to us every day (to use the words of an excellent author) by the mouths of babes, as often as they have a cake to divide; for this is their natural language, “I will divide, and you shall choose.”7 To which we may apply what Horace says of other natural instincts or directions. Unde nisi intus monstratum?8 The whole secret of a well poised equal government, lies in dividing and choosing, as the same author we have so often quoted hath shewn at great length. Dividing and choosing, in the language of a commonwealth, is debating and resolving. And in order to a right division and choice, as the council dividing, should consist of the wisdom of the commonwealth, so the assembly or council choosing, should consist of the interest of the commonwealth. The wisdom of the few may be the light of mankind, but the interest of the few is not the profit of mankind, nor of a commonwealth. Therefore, as the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the whole body of the people. And whereas this, in case the commonwealth consist of a whole nation, is too unwieldy a body to be assembled, this council is to consist of such a representative as may be equal, and so constituted as can never contract any other interest than that of the whole people. Whence it follows, 4. That government, de facto, may be an art, whereby some men, or some few men subject a city or nation, and rule it according to his or their private interest: which, because the laws, in such cases, are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws. Yet government, de jure, is an art, whereby a civil society of men is instituted and preserved upon the foundation of common right or interest, which is properly called by Aristotle, an empire of laws, and not of men.9 The necessary definition of a government, any thing well ordered, is, that it is a government, consisting of the senate proposing, the people resolving, and the magistracy exercising. Our excellent constitution hath been judged by the most renowned politicians the very best. See our author, §116 in the scholium. But the discussion of this equally curious and important subject, belongs not to the present question.
[* ] 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.”
[3. ] The first paragraph of this quotation (pp. 462–63, above) is from Harrington, Oceana, 241, in Harrington, Political Works. For the remainder see ibid., 326–27, though there are some omissions.
[4. ] Ibid., 167.
[5. ] Ibid., 330.
[6. ] Pope, Essay on Man, epistle III, lines 304–5.
[7. ] See Harrington, Oceana, in Harrington, Political Works, 172: “that such orders may be established as may, nay must, give the upper hand in all cases unto common right or interest, notwithstanding the nearness of that which sticks unto every man in private, and this in a way of equal certainty and facility, is known even unto girls, being no other than those that are of common practice with them in divers cases. For example, two of them have a cake yet undivided, which was given between them. That each of them therefore may have that which is due, ‘Divide,’ says the one unto the other, ‘and I will choose; or let me divide and you shall choose.’ If this be but once agreed upon, it is enough; for the divident dividing unequally loses, in regard that the other takes the better half, wherefore she divides equally, and so both have right.”
[8. ] Horace, Satires II, 1.52: “From where, unless from an internal instinct?”
[9. ] Aristotle Politics 3.16.