Front Page Titles (by Subject) CHAPTER VIII: Concerning the immanent rights of majesty, and the just exercise of them. - A Methodical System of Universal Law: Or, the Laws of Nature and Nations
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CHAPTER VIII: Concerning the immanent rights of majesty, and the just exercise of them. - 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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Concerning the immanent rights of majesty, and the just exercise of them.
The internal security of a civil state consists in external justice.The immanent or internal rights of majesty, are rights so inseparably connected with it, that the security of the subjects cannot be attained without them (§134). Since therefore this security consists in this, that no subject may be injured by any other, and every one may have his own, or whatever he has a perfect right to demand; the consequence is, that it lies chiefly in external justice, by which we understand conformity of external actions to law; and therefore they are not in the wrong who contend, “That civil states were constituted for the sake of justice; or that (Velleius Pater. hist. 2. 80),1 by giving force to laws,* and authority to courts of justice, industry and religion might be encouraged, and property might be sure, and every one might enjoy with security his own lawful acquisitions”: And therefore they justly assert that a civil state cannot subsist, unless that justice prevail in it, by which subjects are kept to their duty, Aristot. polit. 1. 2.
To sovereignty therefore belongs a legislative power.Because external justice, necessary to the security of a civil state, consists in the conformity of external actions to law (§148), the consequence is, that it is the office of the supreme powers to arm a state with laws; and therefore they must have the right and power of law-making, and of executing the laws, and consequently of adjusting the laws to the end, form, and interest of the republic.* They have therefore power and right to add to them, take from them, abrogate or change them, as the good of the state may require; which power is expressed by the Roman lawyers in a stile accommodated to the nature of the Roman government, by rogare, obrogare, derogare, abrogare, surrogare, Ulpian fragm. 1. 3.2
What civil law is, and what is its object?Since there ought to be one understanding and one will in a state (§114), which thus happens, when all the members have the same end in view, and choosing the same means, regulate all their actions by the same rule; an agreement that cannot be expected, considering the diversity of human dispositions, otherwise than by the submission of all the members of a state to the will of its rulers (§114); hence it follows, that the supreme power ought to make the rule known to which he would have them to conform their external actions, which are in themselves indifferent. Now, this can only be done by prescribing laws to them; and therefore civil laws are commands of the supreme power in a state concerning the regulation of external, indifferent actions for the good and honour of the state; whence it is evident, that this legislative power cannot extend to the subversion of divine laws (l. 1. §17).
What power or authority the supreme magistracy hath with regard to divine laws.We say, that civil laws consist in the adjustment of the external indifferent actions of subjects to the honour and interest of the state (§150). For tho’ it be often necessary that magistrates repeat some divine positive as well as natural laws, and extend and interpret them;* give actions and civil remedies against transgressors of them; and threaten punishments to those who shall dare to violate laws established by God himself; yet it is plain, from the nature of the thing, that then these laws do not owe their original obligation to the will of the civil magistrate, but that he then only exerts himself, as guardian of the divine laws, to make their authority sacred in the state.
The constituent parts of a law.Because civil laws are commands of the chief magistrate concerning the regulation of external indifferent actions for the good and honour of the state (§150); but such is the nature of mankind, that internal obligation alone is not sufficient to influence them (l. 1. §8); nay, civil laws cannot produce internal obligation (l. 1. §7); the consequence is, that all civil laws must be enforced by some penal sanction; and therefore a perfect law consists of two parts, the preceptive part, and the penal sanction: But rewards are not due by a republic to those who obey its laws; unless something be not promiscuously enjoined to all the subjects, but it be proper that some should be excited by a particular condition to do something extraordinary for the public good.*
Penal sanction is either definite or indefinite.Seeing by punishment is understood an evil effect of the transgression of a law (l. 1. §99), which evil effect may consist not only in a certain evil of suffering, but likewise in the nullity of the act done in disobedience to a law; yea, in both: For this reason, a law which both pronounces an act contrary to it null, and renders a transgressor liable to some evil of suffering, is called by the Civilians a perfect law; and other laws are called imperfect, or less than perfect, Ulpianus fragment. 1. 1.3 Moreover, because an illicite action may be either determinate or indeterminate, and may be varied by a great diversity of circumstances (l. 1. §100), the consequence is, that punishment may be definite or indefinite and arbitrary.
Judiciary power likewise belongs to the supreme magistrate.Because laws would be ineffectual, were they not applied to facts; i.e. unless enquiry were made into the agreement or disagreement of actions with laws (l. 1. §95); it follows, that there must be some person, in a civil state, who hath the power of judging of the imputation of actions; which power, is nothing else but a power of judging of the actions of others (l. 1. §97); whence it is plain, that judiciary power is necessary in a republic. Now, because between equals neither magistracy nor punishment can take place (§6), this judiciary power in a republic must belong to the superior; i.e. to the supreme power in it;* and therefore it is one of the internal rights of majesty (§134).
What it is, and how it ought to be exerced.But it being the office of a judge to apply laws to facts or actions, and actions contrary to law being either detrimental to the republic itself, or to private persons; it follows from hence, that all judgments are either private or civil, public or criminal; the former of which consist in determining suits or controversies; the latter in punishing bad actions, Cic. pro Caecin. c. 2. And tho’ a prince cannot be blamed, if he delegates the judiciary power to prudent and good men, skilled in the laws (l. 1. §101), and so constitute magistrates and judges every where; yet there ought always to be access to the supreme power for those who think themselves oppressed by an unjust decree of the judges; and therefore, the ultimate determination of doubtful causes belongs to the Sovereign of a state.*
As also the power of punishing.Because it belongs to a judge to apply laws to facts, and to determine whether an action be imputable to a person or not (l. 1. §95); but to impute an action, is to declare whether the effect assigned by a law to a certain action takes place or not (l. 1. §99); hence it follows, that the Sovereign, who has the supreme judiciary power, has also the power of inflicting punishments. And be-cause it cannot be denied, that he who hath the power of making laws, must also have the power not only of taking away a part of a law, or of making some exception to it, but even of abrogating a law (§149); much less can it be refused, that he hath the power of exeeming a delinquent for just reasons from a law, so as to give him a remission from the punishment due by it.*
Whether this power can take place among equals?Hence again we conclude, that there is no right of punishing among equals,† and that neither one’s integrity of life, nor another’s confirmed inveterate habit of sinning, gives an equal any right of punishing; and therefore, that the nature of punishment is not fully pointed out by Grotius’s definition of it, who says, “It is an evil of suffering inflicted for an evil of doing.” Nor by Becmann’s, “who defines it to be pain inflicted for a crime.” The evil of suffering inflicted by the sufferer, is not punishment, but revenge; and if it be inflicted by a third person, who is not a superior, it is injury. But that neither of these ought to be permitted in a civil state, is plain from hence, that the judiciary power in it belongs only to the supreme magistrate, and those to whom he hath delegated and intrusted it (§154, 155).
What are the ends of punishments.Nor will it be difficult to determine what is the end of punishment from the very reason which makes it requisite. For since punishment, properly so called, took its rise upon the introduction of civil government (§6), and the right of inflicting it, is one of the immanent rights of civil majesty (§134); the end of which is nothing else but the security of subjects; the consequence is, that the same must be the end of punishments. But because subjects are rendered secure, by reducing them in such manner, that they shall no more be disposed to transgress, or that they shall no longer have it in their power; i.e. either by amending them, or by taking the power from them of offending for the future; hence it is evident, that the former is the end of punishments, which are inflicted without taking away the criminal’s life; and that the latter is the end of capital punishment, “punishment joined with the loss of life,” as Justinian speaks, §2. Instit. de pub. jud.* And because sufficient provision would not be made for the security of the state, if those only who had offended should cease to transgress, and the like transgressions may still be apprehended from others; it is obvious, that by the same punishments, as by examples, others ought to be admonished of the danger of transgressing; and therefore the guilty ought to be punished publickly, unless some weightier reason forbid it.
Whether a delinquent be obliged to suffer punishment?These principles being fixed, it is very perspicuous, whether there be any obligation upon a delinquent to suffer punishment. For since he who lives in a civil state, is obliged to all, without which its end, i.e. the public security, cannot be obtained or expected (§106), undoubtedly a delinquent is obliged to suffer the punishment defined by the law, tho’ not to punish himself, and therefore not voluntarily to offer himself to cruel sufferings:† no injury is done to one who suffers condign punishment, being convicted of a crime; nor is it lawful to any one to resist the supreme power, when it inflicts the punishment appointed by law.
If all crimes ought to be punished, and what crimes ought to be punished.Now, from the end of punishments (§158), we infer, that they ought to be adjusted to the end of the republic, and therefore to be of such a nature as is most proper for its internal security. Whence it follows, that the supreme power is obliged to punish such crimes as disturb the security of the state, or hinder the subjects from living conveniently and tranquilly. But it is not necessary to punish vitious acts which rest in the mind, nor yet such minute faults as every man is liable to; nor the omission of the offices of humanity, unless these crimes become, by their prevalence, dangerous, or disgraceful to the state, and therefore necessity oblige to restrain even them.*
Who are to be punished.It is abundantly plain, from the very definition of punishments (l. 1. §99), that they only ought to be punished who have committed any evil action; not their heirs or their families,† or sureties, who bound themselves to punishment for others, contrary to right and justice (l. 1. §146). But since whole societies constitute one moral person (§19), and therefore are bound by the same laws prescribed to the rest (§23), it is obvious, that communities and societies may be punished, tho’ humanity itself pleads for the mitigation of the punishment, that the innocent may not suffer equally with the guilty; and that those who transgressed by mistake, or thro’ weakness of judgment, may not feel the same severity with those who were the stirrers up and ringleaders in such tumults. And in punishing large bodies, corporations or communities, that the remedy may not be worse than the disease, care ought to be taken that fear may affect all, and punishment may reach but to few.
The principles upon which the quantity of punishment is determined.What kind of, and how great punishments ought to be inflicted, is plain from the nature and end of punishment. For since the end of punishment consists in the security of the subjects (§158), the consequence is, that punishment ought to be sufficient to impress fear, and to restrain and coerce evil dispositions. But such being the nature of mankind, that any evil concupiscence, which hath once got possession of the heart, cannot be restrained, but by setting before men a greater evil or good, (l. 1. §52); hence we have reason to conclude, that a penal sanction will not impress sufficient fear, unless men judge it a greater evil to undergo the threatened punishment, than to omit the crime forbidden under that penalty, and be deprived of the pleasure or profit they expect from it.*
Conclusions from hence.From these principles we further conclude, that the security of the civil state does not admit of the punishment of retaliation, or like for like.* Nor is the rule about proportion between the crime and the punishment a just one, unless it be understood, not so much of the actions themselves, as of the disposition to perpetrate them. Besides, since some crimes are more noxious to the public than others, and some tend more than others to its dishonour, it is easy to find a reason why an action, which is more hurtful to the public security, is fenced against by more severe and awful punishment, and punishment is augmented when crimes become more frequent.
In appointing punishments regard ought to be had to all circumstances.But, as in the imputation of other human actions, so likewise in the imputation of crimes, all circumstances ought to be attended to; for one circumstance often changes the whole affair (l. 1. §100). And therefore it may happen, that one ought to be more severely punished than another for the same crime; and in defining punishments, regard ought to be had not only to the person of the delinquent, but likewise to the person injured, and also to the object, the effect, the place, the time, and like circumstances.*
Punishments inflicted to amend persons, ought not to be ignominious.Nor ought it to be forgot, that since all punishments are not intended to cut off the flagitious delinquent; but they are often only intended to reform him, and make him more regular and circumspect for the future (§158); care ought therefore to be taken, that all who suffer for their faults be not marked with ignominy; because they would thus be no longer useful members in the republic, and could scarcely gain their living by any honest art or employment.
A Sovereign hath the power of laying on taxes and imposts, and hath a certain eminent dominion.To the internal rights of majesty belongs the power of exacting tributes and taxes from subjects, and of applying their goods to public uses when necessity so requires; which last is called eminent dominion.* For all being in the power of a Sovereign, without which the end of a republic, viz. internal and external security, cannot be obtained (§133); which cannot be obtained without contributions from the subjects for bearing the necessary charges of the republic, and unless the Sovereign may sometimes apply the goods of subjects for public uses; the consequence of this is, that Sovereigns must have a right to exact contributions from subjects, and likewise a right of exercing an eminent dominion.
What this right is in the ordinary state of a republic.Now, since a Sovereign hath this right (§166), it is obvious, that to him belongs the protection and guardianship of private properties;* that when the exigencies of the state require it, they may be ready, and in a condition to answer the necessities of the republic; and therefore he has a right of making laws concerning the right use of property, and concerning alienations and conveyances (l. 1. §317); as likewise of settling commerce by treaties, and of restricting it according as the interest of the republic may require; of regulating import and export, promoting manufactures and arts, making sumptuary laws; and, in one word, of doing every thing to make the state thriving and opulent, and sufficient to defend and maintain itself in a flourishing condition.
And what in an extraordinary state.Such is the right of sovereignty in the ordinary state of a republic. But because it is in an extraordinary state of the republic that eminent dominion takes place (§166), the consequence is, that a Sovereign has the right, in time of war, to make en-campments upon the fields of private persons, and to make necessary fortifications and public works upon them, l. 9. C. de oper. public. to bring in corn and other necessaries by foraging; to make new highways through the lands of subjects when the old ones fail, l. 14. §1. D. quemadm. serv. amitt. throw down houses in the suburbs when Hannibal is at the gates, and such other like things.
When this eminent dominion justly takes place.But since this right only takes place in urgent necessity (§166), and since that is necessary, without which the public good, the supreme law in every state (§24), or liberty, property and security, cannot be maintained and preserved; hence we may justly infer, that this right may not only take place when the extreme necessity of a republic requires it, but even as often as it is truly requisite to the public utility; especially since utility often becomes necessity (V. A. Corn. van Bynkersh. ibid. p. 292).4 But this right scarcely takes place, when it is merely the private interest of the Sovereign that demands it, if any one’s just right is taken from him by it; much less, when it is not his real utility but pleasure that is the motive. And, in fine, of such a nature is this eminent dominion, that a good prince will easily submit to fixing bounds to it, and will use it very modestly (Bynkersh. ibid.).*
How they ought to exerce it.Since equity teaches us that the common burdens of the republic ought to be supported at the common charge (§166), the consequence of this is, that one subject ought not to be loaded more than another; and therefore, that compensation ought to be made to him who must part with any thing for the public utility out of the treasury or the public coffer.* And if that cannot be done immediately, they who are thus deprived of any part of their property have a right to exact it, unless they build contrary to law, and such an edifice, or whatever kind of work it is, be destroyed, the public utility so requiring. For, in this case, so far are they from having a right to demand refunding the value, that they are liable to the penalty appointed by the laws. V. A. Corn. van Bynkersh. ibid. p. 297.
Whether it can be extended to the goods of foreigners not enemies.Besides, from the same definition it is plain that this right can only be exercised upon the goods of subjects, and not upon the goods of foreigners who are not enemies. Wherefore those princes are hardly excusable, who lay their hands upon the goods and merchandize of nations in friendship with them, force them to lend them money, or seize their ships to transport troops or provisions. But such pressing, as it is called, is frequent, and defended under this colour, that foreign ships, found in the harbours of a prince, are subject to him;* and it is practised by a received custom among nations and empires.
What is the exchequer and treasury.So much for the eminent dominion or transcendental propriety. As to taxes and imposts, it is the interest of a republic to be strong in money on a dou-ble account. First, in order to support its Sovereign suitably to his dignity. And secondly, that money, the nerves of all business, may not be wanting either in time of war or peace; and therefore in republics there are usually two public coffers, one of which is intended for the suitable maintenance and support of the Sovereign, and is called the exchequer; the other for the public use, which is called the treasury.† That both of these should be well filled, is greatly the interest of every civil state.
What hath been contrived for enriching the treasury.Since the money destined for the support of a Sovereign is brought into the (fiscus) or exchequer, (§172), some nations have thought fit not only to assign to their Sovereigns certain lands and territories, out of the revenues of which their dignity is to be supported, which are now called demesnes of the crown, or crown-lands; but likewise certain customs, duties, tollages, or taxes; and all things within the territory of the republic not under dominion (l. I. §243 & seq.); which latter way of enriching the king’s treasury hath been the more readily agreed upon in all nations,* that it is done with the least cost to particulars.
His rights over his demenial goods.Since therefore the demains of a Sovereign are intended for the maintenance of his dignity (§173), it is plain that they cannot be alienated, and therefore may be reclaimed by a successor singular or universal, if they are alienated; nor does it make any difference whether they are alienated in part or in whole, since of what is not ours we cannot alienate the smallest part, as Grotius justly observes (of the rights of war and peace, 2. 6. 11.) where he remarks, that such alienations made with the consent of the people are valid,* and the fruits of this demain or patrimony of the crown are to be distinguished from the patrimony itself.
The right of a Sovereign over things which have no master.Moreover, because things having no master have been assigned to Sovereigns (§173), it is not difficult to find a reason why the crown every where pretends to a right to all those things which are by the Roman law pronounced either common or public, as the seas which wash their territory, rivers, large forests, and therefore the rights of fishing and hunting; as also the right of digging for minerals and metals, and of taking possession of vacated goods, and of gems or precious stones cast out by the sea, alluvions, new islands, deserted channels, and, in some places, trove-treasure, and vagabonds and bastards; tho’ all these things differ according to the different usages of nations, as Huber has justly observed, de jur. civ. 2. 4. 4. 48. p. 468.*
Other laws of the Exchequer.Since it is the interest of the republic that the exchequer should be as rich as possible (§172), it is not strange that other advantages and means of gain are given to it; especially the right of coining money, mulcts, and contreband goods, and the right of seizing all unlawful acquisitions, and other such, which are commonly, tho’ not so justly, called the regalia minora (§133). But here the customs of nations are different, according as kingdoms allow more or less to Sovereigns, or they have arrogated more or less to themselves by long use.
The treasury is enriched by taxes and duties.As for the public treasury, it is chiefly filled by taxes and duties, unless there be so much public land that the republic can be preserved by its revenues. For since (§172) republics can do nothing without money, either in war or peace (Tacit. hist. 4. 74), and, there not being a sufficient quantity of public land, that can be no otherwise got than from the subjects; the consequence is, that the chief magistrate can impose tributes and taxes upon the subjects, either with or without the consent of the different orders of people in the state, according to the different forms of government; and that they may lay them upon persons, lands, merchandize imported and exported, consumable commodities, manufactures and commerce, as is most convenient, provided regard be had to the condition of the people and the quality of things,* and subjects be not so oppressed, that they, like slaves, do not acquire to themselves, but to their Sovereign.
What is just with regard to it.But if in levying taxes, regard ought to be had to every one’s faculties, and the subjects ought not to be oppressed with burdens (§177), it is manifest that what is above the power of the subjects, ought not to be exacted from them; nor ought they in times of peace to be so spunged, that they can be able to contribute nothing in case of danger: Besides, this contributed money ought not to be collected with too much rigidity, and it ought to be honestly and faithfully managed, and employed for the purposes to which it is destinated, or which the very end of the contribution requires. This is evident from the nature of the thing.
The right of the Sovereign to constitute magistrates and ministers.Moreover, another of the internal rights of majesty, is to constitute ministers and magistrates (§134). By ministers we understand those who govern a part of the republic entrusted to them in the name of the Sovereign: By magistrates, who manage a part committed to them in their own name, but dependently on the Sovereign. Since therefore ministers act in the name of the Sovereign, and magistrates dependently on him, the consequence is, that the Sovereign has the sole right of nominating them, unless he hath granted to others the right of choosing and presenting, or to a community the right of election: that they are under particular obligation to him, and are bound to render account to him, and may be justly degraded from their dignity by him, if they do not acquit themselves well in their charge; nay, may be punished, if they be guilty of knavery, or any gross misdemeanor, as the demerit of their crime requires.*
The duties of Sovereigns and their ministry, and of magistrates.As a part of the public concerns is entrusted to ministers as well as magistrates (§179), it therefore is the duty of a prince to know his men well, and to take care to choose none but such as are proper for the trust; and it is the duty of subjects, on the other hand, not to ambition trusts to which they are not equal; and much more is it so, not to brigue for them, or to use bribery, largesses, and other vile arts to procure them, or to buy them, unless it appear to the Sovereign to be for the interest of the republic that such offices should be matter of commerce. Moreover, it is self-evident that every minister and magistrate is obliged to all diligence and fidelity, and to regard the happiness of the state as his chief, his supreme law; and much more is this obligation incumbent upon a first and chief minister, upon whose shoulders the Sovereign hath laid the chief burden of the government.*
The right in sacred things belonging to Sovereigns.One of the chief immanent rights of Sovereigns is the right relative to religion, sacred things, or the church, by which we understand a society formed on account of religion. Now, since (§23) all communities and societies of the simpler kind ought to be so subordinated, that they may do nothing contrary to the interest of the larger society; the consequence is, that a church ought to be subordinate to the republic; and therefore, that the chief magistrate has the right of directing its affairs and concerns.* This may be proved from this consideration, that a republic ought to have one will (§114), which could not be the case, if the church in a state were not subject to the chief magistrate, but constituted by itself a free and independent community, not subject to the chief magistrate. Besides, that since all the rights belong to majesty, without which the security of the subjects cannot be obtained (§133); and experience has abundantly shewn us how much the internal and external security of subjects hath been disturbed under the pretext of religion; who then can deny that a Sovereign has the right of so directing religious affairs that the republic may suffer no detriment?
Whether it extends to articles of faith?Religion, on the account of which men coalesce into the particular society called a church (§181), consists chiefly of two things. The first is a just idea of God (l. 1. §127). The last is perfect love to God (ibid. §130). Now, from hence it is evident, that with regard to the former a Sovereign can have no power, since the understanding cannot be forced (l. 1. §129);* and therefore his right ought not to be stretched to a right of imposing new articles of faith upon his subjects, and proscribing former ones; (i.e. of imposing a yoke upon their consciences); tho’ it be incumbent upon him to take care, that his subjects be instructed in the doctrines he judges to be agreeable to reason and revelation; and that these doctrines be rendered subservient to promote piety and virtue, instead of feuds and divisions, to the equal detriment of the church and state.
What with regard to the internal worship of God?As for divine worship, we said before it is either internal or external. Now, the internal is of such a nature, that the obligation to it is obviously deducible from principles of right reason (l. 1. §130); and therefore, no mortal hath power to change it, (l. 1. §17); and consequently, a Sovereign can neither abrogate nor alter it; tho’ all men being obliged to promote the glory of God to the utmost of their power (l. 1. §128); a prince must be obliged, and have the right to take care that his subjects be duly instructed in the internal worship of God; to use proper methods to reform the impious, and bring them to a just sense of the reverence they owe to the Supreme Being; i.e. by reasoning and argumentation; and to guard his state against the spreading either of atheism or superstition, by such fences as the nature of religion and persuasion admits.
What with regard to external worship?External worship consists partly in external actions flowing from love, fear, and trust in God (l. 1. §135), partly in arbitrary indifferent actions (ibid. §138). With regard to the former, the same rule takes place as with respect to internal worship; and therefore, with regard to it, a good prince will arrogate no power to himself, besides that of endeavouring to the utmost to promote it by due methods.* The latter are neither prescribed nor dis-approved by reason (l. 1. §138); and therefore they are subject to the direction of a Sovereign; and he hath all the right and power with regard to them, which is neither repugnant to reason nor revelation.
The chief articles of the power of a Sovereign about sacred things?Since all direction with regard to the arbitrary acts of external worship, which is neither repugnant to reason nor revelation, belongs to sovereignty, (§184); the consequence is, that the chief magistrate hath the right of reforming and of abolishing abuses truly such, so far as the public laws or pacts permit; the right of making and amending ecclesiastical laws; the care of ecclesiastical goods or possessions, and of applying them to their proper uses; the right of jurisdiction over all persons, causes, and things ecclesiastical; and of conveening and directing synods and councils;* and finally, the right of permitting meetings of dissenters; or of not tolerating them, but obliging them to leave the kingdom, when important reasons require such severity.
The right or power of the chief magistrate about schools or academies.Schools and academies are seminaries to the church and to the state; nurseries for ministers, magistrates and good citizens, as well as for divines, their end being to instruct the youth in all useful arts and sciences necessary to qualify them for the various offices of life, and the several different stations in which they may be placed, or professions they may choose, as well as to form their manners to virtue and probity, and decency of conduct. For which reason, it is the duty of the supreme power in a state to establish such schools, and to adorn them with good laws and constitutions, and with learned and well qualified professors or masters; to take care that no hurtful doctrines be taught in them, that discipline be kept upon a good footing; and, above all, that turbulent genius’s do not sow divisions and contentions in them;* so as to render them like the school of Megara in ancient times, οὐ σχολήν, ἂλλα χολήν; “Not a school, but a seat of choler and scufling,” Diogenes Laert. 6. 24.
The right of the chief magistrate with respect to commerce.The other right of magistracy which remains to be considered, is what regards commerce (§134). For since mankind, far less a republic, cannot subsist without commerce (l. 1. §325), the governors of a civil state ought to take care to promote and maintain it, and to direct it into a right and proper channel. And therefore they have all the rights relative to it, without which these ends cannot be obtained (§133); the consequence of which is, that they can make laws concerning traffic, manufactures, export and import, payment of bills and debts, and about money or coin; give privileges to traders, stipulate security to foreign commerce by treaties, and defend it by arms; grant immunities and rights to larger societies of merchants; and, in general, do every thing necessary to support and promote trade, consistent with pacts and treaties made with other princes or states.*
[1. ] See Velleius Paterculus, Compendium of Roman History, bk. 2, chap. 89 (not 80), p. 237.
[* ] For tho’ none can deny, that internal justice, or a constant disposition to injure no person, but to render to every one his own, be a more noble degree of virtue; yet that such virtue is not to be expected from so many men as coalesce into the same civil state, will not be controverted. It will therefore be sufficient, so to hold men to their duties by laws, that they shall conform their external actions to laws, and not refuse to any one what he hath a perfect right to demand, or do any thing contrary to justice and equity. Yet it becomes good rulers to take all proper methods, by the right education and discipline of their subjects, to make internal justice or virtue to flourish among them. “It is the duty of prudent magistrates, (says Isocrates in Areopag. p. 27.) not to multiply laws, but to endeavour to render their subjects sincere lovers of justice. For it is not laws and edicts, but good education that will make a state truly happy. Men who are not rightly formed will dare to despise the best laws; but those who are well educated, are led by their inward disposition to approve good laws.” [[A paraphrase rather than a quotation from Isocrates, “Areopagiticus,” secs. 40–42, pp. 129–31, in Isocrates, Isocrates, vol. 1.]]
[* ] Because there is this difference between natural and civil law, that the former hath for its object good and bad actions, internal as well as external; the latter respects indifferent and external actions, as far as the safety of a people or state requires the regulation of them (lib. 1. §18.); it is therefore impossible that the laws of all states should be uniform. Whence it is very difficult to determine which state hath the best laws; and Herodotus says very justly (apud Stobaeum serm. 21. p. 180.), “If one should lay before a people laws of all sorts, and bid them choose the best, every one would approve of the laws of his own state; every people thinks their own laws the best.” And indeed the laws which are best with regard to one state, because of its end and form of government, may not be proper for another state; but, on the contrary, what is very advantageous to one may be very hurtful to another.
[2. ] Ulpian, “The Rules of Ulpian” (3), p. 223, in Justinian, The Civil Law, vol. 1.
[* ] It is true, God hath commanded that nothing be added to or taken from the divine law, Deut. iv. 2. But the former ought certainly to be understood of superstitious rites contrary to the divine law, or of will-worship, to which the Jews were so propense. But this is no reason why the civil legislative may not extend a divine prohibition to cases not expresly included in it, that thus the divine law be more strictly fenced and guarded. The Hebrew doctors call this a mound to law, by which men are kept at a greater distance from the violations of it, and the first steps towards transgression are guarded against. See upon this subject Schickard, jur. reg. cap. 5. theor. 18. p. 391. and Carpz in his notes on that place, and Jo. Selden, de uxor. Heb. 1. 2. [[Wilhelm Schickard (1592–1635), German mathematician and orientalist, professor of Hebrew and Aramaic at the University of Tübingen, author of Jus regium Hebraeorum. The 1674 edition includes the notes by Carpzov referred to in the text.]]
[* ] This it is proper to observe in opposition to Cumberland of the laws of nature, proleg. c. 14. & cap. 5. §40. where he asserts the promise of rewards to be no less necessary to maintaining the authority of laws than the commination of punishments. [[Richard Cumberland, A Treatise of the Laws of Nature, 260 and 587–88. Cumberland (1631–1718) was bishop of Peterborough and a political theorist. His treatise on the laws of nature (De legibus naturae) first appeared in 1672. But a legislator does not owe rewards to those who do what it would be criminal in them not to do, but to those only who do any thing extraordinary for the common good (lib. 1. §99). Hence in vain does he expect a reward, who does not commit murder or adultery, or theft, since he who perpetrates any such crime is worthy of punishment. But one hath a right to claim a reward, if the legislator having proferred a recompence, he is thereby excited to carry provisions to ships, to furnish arms at his own expence, or to do any such like good service to the public, to which all and every one are not obliged. And in this appears the wonderful goodness of God, that whereas he hath a right to threaten punishments to the transgressors of his laws, without promising rewards to the obedient, he profers recompences, recompences even to a thousand generations, to them who obey his will, Exod. xx. 6.]]
[3. ] Ulpian, “The Rules of Ulpian” (1), p. 223, in Justinian, The Civil Law, vol. 1.
[* ] Indeed a father of a family may administer justice in a natural state to his segregate family, as we have already observed (§92). But in a republic that cannot be done, but so far as the laws permit the head of a family to do it (§93). Judiciary power therefore in civil states, belongs to the supreme magistracy, which is chiefly constituted for this very end, according to the ancients, Hesiod. Theog. v. 88.Hac una reges sapienti lege creantur,Dicere jus populis, injustaque tollere facta.
[[Hesiod, Theogony, line 88: “Kings are created by this one, just law, to pronounce justice to the people and to remove unjust deeds.”
[* ] Therefore, it belongs in monarchical states to Kings and Princes; in aristocracies to the college of nobles; and in democracies, the right of appeal is to the people; nor ought any tribunal rashly to be established from which there is no appeal: This the Romans could not long brook under their Kings and Dictators, l. 1. 26. 2. 8. 3. 55. 10. 9. But because the right of appealing may be not a little abused, it is not to be wondered at, that various remedies have been invented to restrain it within due bounds. Such are, the power of determining without appeal lodged in some magistrates, a certain sum being defined by the law above which appeal may be made, an oath of calumny, a certain sum of money to be deposited by the appellant in case he should be cast, and the like; which, whether they be expedient or not, is rather a question of civil prudence than of natural jurisprudence.
[* ] The stoics denied this. Their maxim is known to every one: “Sapientem non dare veniam, nec ignoscere,” Diogenes Laert. 7. 123. Senec. de clement. 2. 6. 7. [[“The wise man does not grant pardon nor forgive” (see Diogenes Laertius, Lives, bk. 7, sec. 123); Seneca, De clementia, bk. 2, chaps. 6–7, in Seneca, Moral Essays, vol. 1). But if the most just God forgives sins without violating his essential justice, why may not a supreme magistrate, who hath the power of making penal laws, cancel these laws; and why therefore may he not pardon a criminal? But we have said for just causes: For as laws ought not to be enacted but for grave and important reasons, so neither ought any indulgence to any one to be granted without just and good reasons. But what if the punishment be appointed by a divine law? If it can be made appear that there is such a penal law, we scruple not to affirm, that no Sovereign hath power to change such a law, or to dispense with it (lib. 1. §17). But whether there be any such law, hath been much disputed among the learned, and is yet undetermined. See Thomasius dissert. de jure adgrat. princip. circa poenam homicid. Thomasius (praeses) and Clusener (respondens), Dissertatio inauguralis juridica, de jure aggratiandi principis Evangelici in causis homicidii.]]
[† ] For we are speaking here of civil punishment, properly so called, and appointed by law, and not of conventional, to which one of his own accord subjects himself; nor of that revenge by which one deprives another of certain benefits on account of his crimes, renounces his friendship and acquaintance, &c. nor of these natural evils, such as diseases, pains, infamy, &c. which one brings upon himself by his wicked practices. Again, there is a great difference between punishing and that right of chastising which the laws give to parents, and sometimes to a husband, and to a master. For chastisements are applied at pleasure by way of discipline: But punishment, properly so called, is inflicted by the prescription or appointment of a law, in the way of jurisdiction. Whence it is self-evident, that an equal cannot punish an equal; but he alone can punish who hath the right of making laws, and of applying them to facts: Which since the supreme magistrate alone hath the power of doing (§151 and 154), he alone therefore hath the power of punishing. It is then a very singular opinion of Grotius (of the rights of war and peace, 2. 20. 3. 1.) to say, “That nature sufficiently shews it to be most proper that punishments should be inflicted by a superior; but that it cannot be demonstrated, that it is necessary, unless the word superior be taken in such a sense as to signify, that he who does a bad action, does thereby, as it were, detrude himself out of the rank of men, into that of the brutes subjected to men.” As if moral superiority or pre-eminence could give any mortal the right of punishing, and superiority of empire were not necessary. See Thomasius, jurisp. divin. 3. 7. 31. Wherefore, if an offender is punished by the person injured, it is not punishment, but revenge; and if he is punished by a third person, it is an injury. But that both these are prohibited in a civil state, Grotius does not deny. And therefore Sanio in Terence reasons much better, Adelph. 2. 1. v. 34. “I am a pimp, I confess: the bane of youth: a perjured villain: a common nuisance and pest: but I have done you no injury.” [[Terence, “The Brothers,” act 2, lines 188–89, in Terence, Terence, vol. 2, 271.]]
[* ] Hence it appears, that to human punishments, the end, of which some speak so much, does not belong, viz. the expiation of guilt, and the satisfaction due to divine justice: For neither can we absolve those from cruelty, like that of Phalaris, who punish delinquents for no other end but to torment them. Nor could the suffering of a guilty person make any satisfaction to the infinite divine justice, had it not been satisfied by another satisfaction truly infinite. But they who talk in this manner do not consider the origine of punishments, which is nothing else but the necessity of them to the security of a civil state; and seem at the same time not to attend to the distinction between human and divine justice, and between civil punishments and those eternal ones which abide sinners in the life to come.
[† ] Yea, because punishment is an evil of suffering, from which nature is abhorrent, what one is willing to undergo would not be a punishment. Quintilian Declam. 11. says, “He is mistaken who measures the atrocity of torments by their names: Nothing is a punishment but what is unwillingly undergone. We suffer no pain but by impatience, and it is fear that alone can make a thing appear cruel or terrible. Will any one call that a punishment to one, to which one runs, and which he calls for? Drag condemned malefactors whither they are unwilling to go.” [[Quintilian, “XI: The Case of the Rich Man Accused of Treason,” 142, in The Major Declamations Ascribed to Quintilian, 137–44. It is a barbarous custom to force men to lay violent hands on themselves, to rip up their bowels, or to take poison, or to choose any other way of death. For we are not obliged to be ourselves the instruments of the punishment we are obliged patiently to submit to.]]
[* ] Thus we find in matters of treason, the very thought or knowledge of it in some states is punished; and in some nations inhospitality is punished: We have given some examples of this, (lib. 1. §216). And we shall now add, that the ancient Germans commanded humanity to strangers by laws, with penalties annexed to them. There are such sanctions in the Lex Burgund. 33. 1. Capitular. 1. 75. in which a pecuniary mulct is ordered against those who shut their house or the market-place against a stranger. The Goths ordered by a law the houses of those to be burnt who had three times refused access to travellers, Joan. Mag. hist. Goth. 4. 1. See Element. juris Germ. 1. 18. §420. [[Burgundian Code, 38.1. Capitularia Regum Francorum. Johannes Magnus, Gothorum Sueonumque historia. The last reference is to Heineccius’s own Elementa iuris Germanici.]]
[† ] The Persians were so barbarous, of which cruelty, see Barn. Brisson. de regno Persic. 2. 227. p. 591. [[Brisson, De regio Persarum principatu libri tres. We have some traces of it in Daniel, vi. 24. and Esther ix. 14. And that this barbarity still prevails very universally in the eastern nations, hath been observed by those who have described their manners with the greatest accuracy. But as this usage is absolutely repugnant to right reason, so it is not possible by any prudence to prevent the falling of punishment inflicted upon parents, indirectly, at least, upon their children, especially when their estates are confiscated by law. And this consideration hath moved more humane legislators very rarely to use this punishment, and not but in case of treason, to confiscate all the goods, that as much as it was possible for them to do, they might prevent punishment from extending so much as indirectly to the children of the punished.]]
[* ] The punishment of injuries by the laws of the twelve tables, furnishes us with an example. For it struck so little terror into wicked rich men, that they rather took pleasure in committing insults, which could cost them but a very trifling fine. The whole matter is related at great length by Aulus Gellius Noct. Attic. 20. 1. who tells us there, “That the fine for an injury or insult being a very few pence, that hardly any one was so poor, as that he could be restrained by it from indulging his arrogance and insolence. And therefore Labeo in his commentary on the twelve tables, did not approve of this law. He mentions one L. Neratius, a person of remarkable pride and insolence, whose great joy it was to give a freeman a blow on the face with his fist, and who went about diverting himself in this outrageous manner, attended with his servant, who carried a purse to count down the fine of five pence, appointed by law for the offence to every one he cuffed. For which reason, the Praetors afterwards abolished this law, and published an edict, in which they constituted themselves repairers of estimable injuries.” [[Gellius, Attic Nights, bk. 20, chap. 1.13, pp. 411–13. So far then was such a slight penalty from checking, that it rather provoked and encouraged insolence and injuriousness.]]
[* ] God himself seems to have approved this law, Exod. xxi. 23. Levit. xxiv. 50. Deut. xix. 19. That law of the Decemviri is also well known, “Si membrum rupsit, ni cum eo pacit, talio esto.” apud Gell. Noct. Attic. 20. 1. [[Gellius, Attic Nights, bk. 20, chap. 1: “If one has broken another’s limb, there shall be retaliation, unless a compromise be made.” But as the Jewish Rabbis themselves so interpret the divine law, that such injuries might have been expiated by money consistently with it: So Caecilius denies that ever this law took place among the Romans, apud Gell. ibid. And they are perhaps proverbs indicating, that he is not injured by one who suffers the same from another, he himself did to him, tho’ perhaps the same thing may not occasion equal suffering to both. See Jo. Clericus ad Exod. xxi. 22. In which sense Pythagoras said punishment was compensation, or equal suffering. However that may be, that the law of like for like hath not always place, may be proved from these considerations. 1. That sometimes such a punishment would scarcely deserve the name of punishment, e.g. if I should be ordered to take as much money from one as he had taken from me, in the highway; or if a man of no rank give a blow to a magistrate, should be struck himself by the magistrate. 2. Sometimes it cannot be done, i.e. the one cannot be made to suffer as much as the other, e.g. if a person with one eye should beat out another’s two eyes. 3. Sometimes equality cannot be so observed but that the delinquent must suffer more than the person injured. Thus, e.g. I know an instance of one run through the body by a night-walker in such a manner, that his intestines not being touched he soon recovered. But could all the physicians in the world, with their united skill, thus run a sword through one without doing him more mischief?]]
[* ] Thus, with respect to the delinquent, he deserves a greater punishment whom kindred, prudence, age, dignity ought to have kept back from a crime, than a stranger, an ignorant unthinking person, one under no special obligation, a boy or stripling, one of the lower rank of mankind (l. 1. §113). A robust person will require a severer corporal punishment than one of a weakly delicate constitution; and if a pecuniary mulct is to be inflicted, more ought to be laid upon a rich Neratius, than upon a poor man. In like manner, if an injury be done to a magistrate, or to a person of dignity, who will deny that it ought to be more heavily punished than an affront to one of the vulgar and dregs of mankind? Besides, if it be a crime to seize the goods of a private person to make gain of them; how much greater a crime must it be to rob the public, or to commit sacrilege? Thus we find a soldier’s deserting from his post in an encampment is more severely punished than one’s running away from winter-quarters, on account of the more dangerous consequences of the former. And in like manner, all equal judges pronounce an injury done in church, or during divine worship, more heinous than one done in a private place, and at another time. So that the public sense does not approve the doctrine of the Stoics, concerning the equality of all crimes, Cic. Paradox. 3. Diogen. Laert. 7. 120. against which we find Horace reasoning thus:Non vincet ratio hoc, tantumdem ut peccet, idemque,Qui teneros caules alieni infregerit horti,Et qui nocturnus divûm sacra legerit. AdsitRegula, peccatis quae poenas irroget aequas:Ne scutica dignum horribili sectere flagello.
Horat. Serm. 1. 3. v. 115.
[[Horace, Satires I, 3.115: “Nor will reason prove this, that the sin is one and the same, for one who cuts the young cabbages from someone else’s garden and for one who steals the sacred objects of the gods by night. Let there be a rule to assign fair penalties to offences, to avoid flaying with the terrible scourge what only deserves the strap.”
[* ] We confess that this term is not very apposite to express the thing, the ideas of empire and dominion being very different, and because the former and not the latter belongs to Sovereigns. Wherefore, what Grotius (of the rights of war and peace) first termed dominium eminens; Seneca of benefits, 7. 4. has more properly called potestas. “Ad reges, potestas omnium, ad singulos proprietas pertinet.” [[“[E]verything belongs to the king, and yet property, to which the king lays claim by his universal right” (Seneca, Moral Essays, vol. 3, 465). See V. A. Corn. van Bynkersh. Quest. jur. publ. 2. 15. p. 290. Bynkershoek, Quaestionum juris publici libri duo, vol. 1, 290. And hence certain lawyers of Wirtemberg have contended against Jo. Fr. Hornius Johann Friedrich Horn (ca. 1629–65), German jurist, that this supreme right is not to be derived from dominion, but from sovereignty. (See Guil. Leyseri collectio scriptorum eristicorum pro imperio contra dominium eminens.) Wilhelm Leyser (1592–1649), Dissertatio pro imperio contra dominium eminens. But this debate being about words, while all are agreed that a Sovereign hath the right of applying the goods of subjects to public uses, when necessity requires it, there is no reason for exploding a received phrase.]]
[* ] Upon this depends the right of Sovereigns to give tutors and curators to minors, to persons labouring under any disease which incapacitates for business, to mad persons, to prodigals, to women, &c. and of prescribing rules to such administrators, calling them to an account, and removing them from their trust, if they are unfaithful. See Plato de legibus, l. 11. where he says, that pupils are under the care and guardianship, not of private persons, but of the public, and are one of its most sacred charges. Hence the Germans, from the most ancient times, claimed from their Emperors a certain supreme guardianship or tutorage, of which I treated long ago in a dissertation de suprema principum & magistratuum tutela. [[Heineccius (praeses) and Russel (respondens), De suprema principum magistratuumque tutela dissertatio iuridica inauguralis.]]
[4. ] Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 292.
[* ] We have added these limitations, because without them this right would degenerate into the highest injuriousness. Hence God was exceeding wroth with King Achab, when he would have violently extorted Naboth’s vineyard from him, because contiguous to his palace, that he might make a Kitchen-garden of it, 1 Kings xxi. 2. For such a demand proceeded rather from the wantonness and voluptuousness of a wicked King, than from real utility. The Roman senate refused an action to the Praetors against M. Licinius Crassus, when they would have carried an aqueduct thro’ his ground, because they said it was rather a matter of pleasure and ornament than of public utility, Liv. 40. 51. Thus the case is represented by Marc. Zuer. Boxhorn. Disquisit. polit. casu 31. [[Boxhorn, Disquisitiones politicae. Yet Bynkersh, hath produced a charter by William Prince of Orange, in which he gives power to the magistracy of Leyden, of taking possession of the court-yards of private persons, paying them the price, even though it was not otherwise necessary, but for the ornament of the Academic buildings, and the pleasure of the students: upon which, however, he adds this remark, “Such a right I would not use, nor did the Roman senate use it in the case of Crassus; nor did even Augustus use it, of whom Sueton tells us, Aug. c. 56. ‘That the Roman Forum was made narrow by him, because he would not take the neighbouring houses from their proprietors.’” Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 295.]]
[* ] This is acknowledged by Grotius of the rights of war and peace, 2. 14. 7. by Pufendorff of the law of nature and nations, 8. 5. 7. by Huber de jure civitatis, 1. 3. 6. 44. and by all who have treated at any length of this dominion; among whom Bynkersh. ibid. deserves the first place, who has shewn that the Romans followed this maxim, from Tacitus Annal. 1. 75. and l. 9. cod. de oper. pub. And undoubtedly the same principle of equity takes place here, upon which the Rhodian law concerning goods thrown over board, was founded, Paulus l. 1. D. ad leg. Rhod. viz. That what is given up for all should be made up by the contribution of all.
[* ] Since the Greeks returning from the expedition of Cyrus, could not so much as use this colour, what they did is so much the less excusable, tho’ Grotius does not seem to condemn it (of the rights of war and peace, 2. 2. 10). By Xenophon’s advice, as he himself tells us, de expedit. Cyr. 5. 1. 6. they, “having the most pressing occasion for shipping, seized such as passed by, but so that the cargo was preserved untouched for the owners, and to the seamen they not only gave provisions, but paid them the freight.” [[See Xenophon, Anabasis, vol. 2, bk. 5, chap. 1, 10–12. This indeed had been excusable on account of necessity, had it been a public expedition. But we cannot see how this right could in any way belong to a handful of soldiers, who had engaged in an expedition with Cyrus without the consent of their several states, an expedition more memorable by its greatness than its justice.]]
[† ] It is right to distinguish these two, tho’ not unfrequently in monarchies princes take all to themselves in such a rapacious manner, that there is in fact no difference between the two. Dion. Cassius, hist. 53. p. 506. tells us, That Augustus had both money and soldiers at his absolute command; and he adds, “And tho’ in words he distinguished between his own money and the public treasury, yet in fact he made use of both at his pleasure.” [[Cassius, Roman History, bk. 53, chap. 22, p. 251. But here we are not enquiring what is done, but what ought to be done: and therefore, it is proper to distinguish between these two public coffers, as is carefully done even in aristocracies and other republics.]]
[* ] The nations of German origine chiefly, of whom Grotius of the rights of war and peace, lib. 2. c. 8. §5. says, “The people of Germany consulting about making some allowances to their Princes and Kings to support their dignities, thought it proper to begin with such things as might be given without damage to any one, such are those which no person could lay particular claim to, which I find that the Egyptians also practised. For there the King’s Intendant, whom they called ἴδιον λόγον, seized on all such things to the use of the crown.” But what Grotius says here of the Egyptians, as from Strabo, whom he quotes in the margin, Geog. l. 17. p. 1148. edit. noviss. does not relate to the Egyptians, but to the Romans, after they had reduced that country to the form of a province. [[Presumably the “editio novissima” of Strabo’s work is the Rerum geographicarum libri XVII, published in Amsterdam in 1707. The office which Strabo calls ἴδιος λόγος, was the same as the Digest calls Procurator Caesaris, or Rationalis. What Strabo says is this, “There is another officer called ἴδιος λόγος a kind of “special agent” of Caesar (see Strabo, Geography, vol. 8, bk. XVII, chap. 1.12, p. 51) whose business it was to demand such things as had no master, and consequently ought to fall to Caesar.” This is justly observed by Casaubon on this passage of Strabo.]]
[* ] Whether the people originally consented, or afterwards ratified the alienation, of which innumerable instances hath happened in Germany. For the ancient Emperors being so very profuse in giving away their demains, especially to the church, that at present hardly any of them remain; none will say, that the Emperor can now reclaim them, since these alienations have been confirmed long ago by the orders of the Empire; yea, tho’ the Emperor usually promises to recover the rights and revenues of the Empire, Capitul. Caroli 6. art. 10. yet this is understood by the interpreters of the public law of Germany, to mean so far as it can be done consistently with the public laws. [[This refers to the so-called electoral capitulation of Charles VI, Holy Roman Emperor from 1711 to 1740. The electoral capitulation contained the concessions the emperor elect made to the Holy Roman Empire’s electoral princes in return for their votes (see Charles VI, Capitulatio Caroli VI). And the Emperors and Kings, who were sollicitous about this recovery, had very bad success, such as Henry V. Rudolph I. Albert I. and others. See Schweder dissert. de domanio imperii. Schweder (praeses) and Pregitzer (respondens), Dissertatio inauguralis de Domanio S. Romani.]]
[* ] The disputes about the dominion of the sea between Grotius and Selden, Rob. Jonston, Petr. Bapt. Burgus, Guil. Welwood, Jo. Isaac Pontanus, Theod. Graswinckelius, and more lately between Pufendorff, Huber, Jac. Gothofredus, Jo. Hen. Boeclerus, Corn. van Bynkershoek, and Christ. Thomasius, and others, are known; nor need we enter into the controversy. [[These works are Grotius’s Free Sea (1609); Selden, Mare clausum (1635), written around 1618; Robert Johnson, Nova Brittannia (1609); Borgo (Burgus), De dominio serenissimae Genuensis reipublicae in Mari Ligustico libri II (1641); Welwood, “Of the Community and Propriety of the Seas” (1613), in Grotius, Free Sea; Pontanus, Discussionum historicarum libri duo (1637); and Graswinckel, Maris liberi vindiciae (1652), which was directed against Borgo’s treatise. Pufendorf, Huber, and Thomasius did not publish separate treatises on the freedom of the seas, though they referred to this question in their more general juristic works. The jurist Jacques Godefroy (Jacobus Gothofredus, 1587–1652) published De imperio maris deque iure naufragii colligendi (1637). The work by Boecler (1611–72) presumably is a university dissertation for which he acted as praeses, with the title Minos maris dominus (1656); Bynkershoek published De dominio maris dissertatio (1703). It is not clear who “Rob. Jonston” is. We are of opinion, that as none can doubt that the sea is under the dominion of none, so it cannot be questioned but it may be occupied, and falls to the occupant, (lib. 1 §241); especially since that hath been long ago done, and is still, as experience teaches us. But because things of exhaustless use are not occupied, nor is it lawful to exclude others from the use of them by occupancy, (lib. 1. §235), some things in the sea being of exhaustible use, such as the larger kinds of fishes, pearls, tolls, and such other emoluments; and other things being of inexhaustible use, as navigation; others may be excluded from the former, but not from the latter. Much more then have they who have certain territories beyond sea, a right to exclude all others from navigation to them, whether with a view to occupancy or for commerce, unless it be otherwise provided by treaties and pacts; since it depends upon the will of every nation, to permit or not permit commerce with foreigners to its subjects. But navigation to other territories not belonging to us, for the sake of commerce, is as unjustly denied by us as the use of a public road, unless this navigation be hindered by pacts and treaties. This is our opinion about this celebrated question. Nor need we be very anxious about it, since this matter is rather decided by force than by words and arguments; so true is what Horace says, Carm. 1. 3. v. 21.Necquidquam Deus absciditPrudens Oceano dissociabilesTerras, si tamen impiaeNon tangenda rates transiliunt vada.Audax omnia perpetiGens humana ruit per vetitum nefas.
Horace, Odes 1.3.21ff. in Odes and Epodes: “All to no avail did God deliberately separate countries by the divisive ocean if, in spite of that, impious boats go skipping over the seas that were meant to remain inviolate.”
[* ] This appeared most equal to Serv. Tullius King of the Romans, and by that means he was very popular, Dion. Halicar. antiq. Rom. lib. 4. p. 215. He declared he would not suffer the poor to be over-loaded with taxes, and to be obliged to contract debt; and therefore, that he would rather make a valuation (census) of the estates of his subjects, and make every one contribute according to his fortune, as used to be done in well constituted and regulated states. “For (said he) I reckon it just that he who has large possessions should contribute largely, and that little should be exacted from those who have but little.” [[Dionysius of Halicarnassus, Roman Antiquities, vol. 2, bk. IV, chap. 9.7, p. 297.]]
[* ] But an unfraudulent counsel or design, disappointed by the event, is not punishable, since none can be obliged to answer for the event of things. Nor does he deserve punishment who executes the commands of his prince or country, if it be not contrary to justice and morality. See V. A. Corn. van Bynkersh. Quaest. jur. publ. 2. 2. p. 196. & seq. [[Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 196. It was therefore a barbarous custom of the Carthaginians to punish their best Generals, if their designs missed of success. Nor is that custom of the Turks and other eastern nations less detestable, who measuring a counsel by the event, condemn those whose designs prove successless. For this is not only contrary to justice, but to prudence. “If any one,” says that excellent writer, “desire advice in difficult affairs; there are many who are capable of giving it; but none will answer for the event; and if you require this, none will assist you with their counsel, no, not one.”]]
[* ] Such are usually called (ministrissimi) chief ministers; and concerning these, two questions are commonly asked; first, whether it be for the interest of a state to entrust the care of the whole state to one: And secondly, whether it can be lawfully done. The first is a question of civil prudence or expediency, upon which it is worth while to read Hert. Elem. prud. civil. 1. 10. 11. Guil. Schroeter and Jac. Thomas their dissertations on this subject. [[Jacob Thomasius (praeses) and Georg Heinrich Groer (respondens), De ministrissimo. Wilhelm Schroeter’s (d. 1689) treatise on chief ministers continued to appear in several editions in the early eighteenth century, including one in 1737 (Fürstliche Schatz- und Rent-Kammer). The latter may be easily answered by any who have considered with any attention the principles of the law of nations. For since we may delegate to another what we do not think ourselves sufficient to manage, why may not princes likewise delegate their office to others, especially when age, the weight of government, and other just reasons induce to it: And if it be not unjust to put a Kingdom under tutorage, while the King is not of an age to take the reins of government into his own hands, why should it be deemed unjust for a King to commit it to a minister? However, a prince would act most unjustly, if he should devolve the care of the public upon a first minister, merely that he might pursue his pleasure, and not be troubled with it, since he ought to use him as a minister, and not transfer the government absolutely to him. The Persians seem to have been sensible of this, when they called ministers the eyes and ears of the King, Xenophon Cyrop. 8. 2. 7. p. 483. of which Brisson. de regno Persic. has discoursed at large, lib. 1. §190. p. 264.]]
[* ] Therefore this right belongs to a Sovereign as Sovereign, and not as Bishop, as some have said, who have been solidly refuted by Hen. Boehmer. dissert. de jure Episcop. princip. evangel. [[Boehmer (praeses) and de Becquer (respondens), Doctrina de jure episcopali principum evangelicorum. And therefore that distinction of Constantine the great (in Eusebius vita Constant. mag. 4. 24) between the oversight of things without the church and within the church, is without any foundation. Eusebius of Caesarea (260–339), author of the Vita Constantini (Life of Constantine). Nor do they come nearer to the truth, who attribute this right about sacred things to a Sovereign, as the primary member of the church; or they who derive it from compact; the first of which opinions is defended by Jaeger. de jure suprem. potest. circa sacra, cap. 3. p. 74. & seq. Jäger, De concordia imperii [et] sacerdotii sive de jure potestatum supremarum circa sacra. For it being a right of majesty or sovereignty, a Sovereign wants no other title to the exercise of it but his sovereignty; whence the Roman lawyers have pronounced long ago, “Jus publicum etiam in sacris & sacerdotibus consistere,” “That public law also extends to sacred affairs and priests,” trans. T. A. l. 1. §2. D. de inst. & jur.]]
[* ] The doctrine of Hobbes and others is therefore monstrous, which subjects the consciences of subjects to a Sovereign (§129). [[Heineccius’s harsh criticism of Hobbes is unfounded, since Hobbes clearly makes the distinction between conscience (foro interno) and external actions (foro externo); cf. Hobbes, On the Citizen, 3.27, p. 54, and Hobbes, Leviathan, chap. 16, p. 110. See also Leviathan, chap. 46, p. 471: “There is another Errour in [. . .] Civill Philosophy [. . .] to extend the power of the Law, which is the Rule for Actions only, to the very Thoughts, and Consciences of men.” For not to insist upon what was just now said, that the understanding cannot be forced; and that a Sovereign can no more command it to believe or not believe, than he can command the eye not to see what it sees; what horrible butchery would these principles occasion, if a Nero or a Domitian, possessed of sovereignty, should take it into his head that the Pagan or Mahometan religion was better for society than the Christian, or to forge a new one? Nay, who does not see, that this doctrine, despising the true, the sole end of religion, perverts it into an engine of tyranny.]]
[* ] Hence it is plain, that the supreme magistrate has no right to hinder any one from praising God with hymns, and offering prayers to him, or performing other such religious actions; but he hath a right to prescribe the order and manner in which these actions ought to be publickly performed. Therefore, the command of Darius, that none should dare to petition either God or man during thirty days, was most absurd, Dan. iv. 7. But the care of David and other pious Kings, to order the worship of God in such a manner, that the people might neither want hymns to sing to God, nor be ignorant of the most serious and decent way of singing them, was most reasonable.
[* ] They are called for various reasons; as to confirm doctrines called into doubt by new decrees and creeds, and to consult about indifferent rites; and in fine, to settle matters relating to discipline. Synods of the first kind are contrary to the nature and genius of religion; first, because that is not always true, which appears to be such to the greater number; and in matters of opinion and belief, ’tis not the plurality of votes but the weight of arguments that ought to preponderate and determine. Next, because these decrees of councils are obtruded upon the members of a church by way of laws, with public authority, whereas laws cannot be given to the understanding. Besides, it often happens, that one part of the judges usurps power over the rest, and thus the wounds of the church are not so likely to be healed as to be festered; which is so confirmed by experience, that Gregory Nazianzenus, ep. 55. ad Procopium, says, “That he never expected any good from councils, and that they generally rather exasperated than cured any evil.” [[Gregory of Nazianzus (ca. 330–ca. 389), Greek saint and theologian. The other synods may be sometimes of use to the church; but only when the church has no legislative power without the direction and authority of the supreme magistrate.]]
[* ] The mischief scholastic wars do to youth, and to useful learning, cannot be expressed. They are frequently occasioned by stupid sluggish men, to whom the learning and industry of others in their proper business is an eye-sore. For the more learned men are, the further they are removed from a spirit of contention. And the scufle is carried on with calumnies, libels, and fraudulent arts, by which they hope to bear down their enemy, or render him suspected by his auditors. And hence it comes about, that the hours which ought to be devoted to the education and instruction of youth, are consumed in writing controversial pamphlets, and that the students, tho’ not capable of judging of the dispute, and unacquainted with the true nature and rise of it, are divided into factions; so, that from words it not seldom comes to blows. But how prejudicial such feuds must be to the most flourishing universities, is very manifest.
[* ] This whole subject is well illustrated by two dissertations: one by Jo. Fridr. L. B. Bachovius ab Echt dissert. de eo quod justum est circa commercia inter gentes, Jenae 1730. [[Bachovius, i.e., Johann Friedrich Freiherr Bachoff von Echt (1643–1726), German jurist and civil servant (1680, Geheimrat) at the court of Sachsen-Gotha (Bachoff von Echt, De eo quod Iustum est). Another by Jo. Jac. Mascovius de foederibus commerciorum, Lip. 1735. Johann Jacob Mascov (1689–1761), German jurist and historian, Ratsherr (councillor) in Leipzig; see Mascov (praeses) and Plessen (respondens), De foederibus commerciorum. To which, if we add the writings pro and con with regard to the disputes between the Dutch and the Imperial Netherlands, about the Ostend Company, we shall not need to look further into this subject. See Refutation des argumens avancés de la part de Mrs. les Directeurs de Compagnies d’ orient & d’ occident des provinces-unies, contre la liberté du commerce des habitans des Pais-bas, Hague 1723, and Jo. Barbeyrac Defense du droit de la compagnie Hollandoise des Indes orientales, contre les nouvelles pretensions des habitans des Paisbas Autrichiens. Macneny, Réfutation des argumens avancés de la part de MM les directeurs des Compagnies d’Orient et d’Occident des Provinces-Unies contre la liberté du commerce des habiters des Pays-Bas; Barbeyrac, Defense du droit de la Compagnie Hollandoise des Indes Orientales contre les nouvelles prétensions des habitans des Pays-Bas Autrichiens.]]