Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter III: The Division of War into Public and Private and the Nature of Sovereign Power
The Division of War into public and privateExamples to prove that all private War is not repugnant to the Law of Nature since the erection of Courts of JusticeThe Division of Public War into formal, and informalWhether the suppression of Tumults by subordinate Magistrates be properly public WarCivil Power, in what it consistsSovereign Power further consideredThe opinion of those, who maintain that the Sovereign Power is always in the people, refuted, and their arguments answeredMutual subjection refutedCautions requisite to understand the nature of Sovereign PowerDistinction of the real differences that exist under similar namesDistinction between the right to Sovereign, Power, and the mode of exercising it.
I. THE FIRST and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry.
The proofs that have been already produced, to shew that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Yet although public trials and courts of justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every ones submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that what can be done by a magistrate with the authority of the state, should never be intrusted to individuals; as private redress would give rise to greater disturbance. And the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force? And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.
II. It is a matter beyond all doubt that the liberty of private redress, which once existed, was greatly abridged after courts of justice were established. Yet there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open. For when the law prohibits any one from redressing his own wrongs, it can only be understood to apply to circumstances where a legal remedy exists. Now the obstruction in the way to legal redress may be either temporary or absolute. Temporary, where it is impossible for the injured party to wait for a legal remedy, without imminent danger and even destruction. As for instance, if a man were attacked in the night, or in a secret place where no assistance could be procured. Absolute, either as the right, or the fact may require. Now there are many situations, where the right must cease from the impossibility of supporting it in a legal way, as in unoccupied places, on the seas, in a wilderness, or desert island, or any other place, where there is no civil government. All legal remedy too ceases by fact, when subjects will not submit to the judge, or if he refuses openly to take cognizance of matters in dispute. The assertion that all private war is not made repugnant to the law of nature by the erection of legal tribunals, may be understood from the law given to the Jews, wherein God thus speaks by the mouth of Moses, Exod. xxii. 2. If a thief be found breaking up, that is, by night, and be smitten that he dies, there shall no blood be shed for him, but if the sun be risen upon him, there shall be blood shed for him Now this law, making so accurate a distinction in the merits of the case, seems not only to imply impunity for killing any one, in self-defence, but to explain a natural right, founded not on any special divine command, but on the common principles of justice. From whence other nations have plainly followed the same rule. The passage of the twelve tables is well known, undoubtedly taken from the old Athenian Law, If a thief commit a robbery in the night, and a man kill him, he is killed lawfully. Thus by the laws of all known and civilized nations, the person is judged innocent, who kills another, forcibly attempting or endangering his life; a conspiring and universal testimony, which proves that in justifiable homicide, there is nothing repugnant to the law of nature.
IV.1 Public war, according to the law of nations, is either SOLEMN, that is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful war is commonly given to what is here called formal, in the same sense in which a regular will is opposed to a codicil, or a lawful marriage to the cohabitation of slaves. This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects. These observations were the more necessary; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.
Now a public war, LESS SOLEMN, may be made without those formalities, even against private persons, and by any magistrate whatever. And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his office; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state. There is such a law as this in the last book of the Plato ON LAWS. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.
In certain cases this authority may be communicated to others. For it is a point settled beyond all doubt that subordinate magistrates may, by their officers, reduce a few disobedient and tumultuous persons to subjection, provided, that to do it, it requires not a force of such enormous magnitude as might endanger the state. Again, if the danger be so imminent as to allow of no time for an application to the sovereign executive power, here too the necessity is admitted as an exception to the general rule. Lucius Pinarius the Governor of Enna, a Sicilian garrison, presuming upon this right, upon receiving certain information that the inhabitants had formed a conspiracy to revolt to the Carthaginians, put them all to the sword, and by that means saved the place. Franciscus Victoria allows the inhabitants of a town to take up arms, even without such a case of necessity, to redress their own wrongs, which the Prince neglects to avenge, but such an opinion is justly rejected by others.
V. Whether the circumstances, under which subordinate magistrates are authorised to use military force, can properly be called public war or not, is a matter of dispute among legal writers, some affirming and other denying it. If indeed we call no other public war, but that which is made by magisterial authority, there is no doubt but that such suppressions of tumult are public wars and those who is such cases resist the magistrate in the execution of his office, incur the guilt of rebellion against superiors. But if public war is taken in the higher sense of FORMAL war, as it undoubtedly often is; those are not public wars; because to entitle them to the full rights of such, the declaration of the sovereign power and other requisites are wanting. Nor do the loss of property and the military executions, to which the offenders are subject at all affect the question.2 For those casualties are not so peculiarly attached to formal war, as to be excluded from all other kinds. For it may happen, as in an extensive empire for instance, that persons in subordinate authority, may, when attacked, or threatened with attack, have powers granted to commence military operations. In which case the war must be supposed to commence by the authority of the sovereign power; as a person is considered to be the author of a measure which by virtue of his authority he empowers another to perform. The more doubtful point is, whether, where there is no such commission, a conjecture of what is the will of the sovereign power be sufficient. This seems not admissible. For it is not sufficient to consider, what we suppose would be the sovereigns pleasure, if he were consulted; but what would be his actual will, in matters admitting of time for deliberation, even though he were not formally consulted; if a law was to be passed upon those matters. For though UNDER SOME PARTICULAR CIRCUMSTANCES, it may be necessary to waive consulting the will of the sovereign, yet this would by no means authorise it as a GENERAL PRACTICE. For the safety of the state would be endangered, if subordinate powers should usurp the right of making war at their discretion. It was not without reason, that Cneus Manlius was accused by his Lieutenants of having made war upon the Galatians without authority from the Roman people. For though the Galatians had supplied Antiochus with troops, yet as peace had been made with him, it rested with the Roman people, and not with Manlius to determine in what manner the Galatians should be punished for assisting an enemy. Cato proposed that Julius Caesar should be delivered up to the Germans for having attacked them in violation of his promise, a proposal proceeding rather from the desire to be rid of a formidable rival, than from any principle of justice.
The case was thus; the Germans had assisted the Gauls, enemies of the Roman people, therefore they had no reason to complain of the injury done to them, if the war against the Gauls, in which they had made themselves a party concerned, was just. But Caesar ought to have contented himself with driving the Germans out of Gaul, the province assigned him, without pursuing them into their own country, especially as there was no farther danger to be apprehended from them; unless he had first consulted the Roman people. It was plain, then, the Germans had no right to demand the surrender of Caesars person, though the Romans had a right to punish him for having exceeded his commission. On a similar occasion the Carthaginians answered the Romans; It is not the subject of inquiry whether Hannibal has besieged Saguntum, by his own private or by public authority, but whether justly or unjustly. For with respect to one of our own subjects it is our business to inquire by what authority he has acted; but the matter of discussion with you is, whether he has broken any treaty. Cicero defends the conduct of Octavius and Decimus Brutus, who had taken up arms against Antony. But though it was evident that Antony deserved to be treated as an enemy, yet they ought to have waited for the determination of the Senate and people of Rome, whether it were for the public interest not to take notice of his conduct or to punish it, to agree to terms of peace with him, or to have recourse to arms. This would have been proper; for no one is obliged to exercise the right of punishing an enemy, if it is attended with probable danger.
But even if it had been judged expedient to declare Antony an enemy, the choice of the persons to conduct the war should have been left to the Senate and people of Rome. Thus when Cassius demanded assistance of the Rhodians, according to treaty, they answered they would send it, if the senate thought proper. This refutation of Ciceros opinion will serve, along with many other instances to be met with; as an admonition not to be carried away by the opinions of the most celebrated writers, particularly the most brilliant orators, who often speak to suit the circumstances of the moment. But all political investigation requires a cool and steady judgement, not to be biased by examples, which may rather be excused than vindicated.
Since then it has already been established that no war can lawfully be made but by the sovereign power of each state, in respect to all the questions connected with war, it will be necessary to examine what that sovereign power is, and who are the persons that hold it.
VI. The moral power then of governing a state, which is called by Thucydides the civil power, is described as consisting of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and appointing its own magistrates. Aristotle, in the fourth book of his Politics, comprises the sovereignty of a state in the exercise of the deliberative, executive, and judicial powers. To the deliberative branch he assigns the right of deciding upon peace or war, making or annulling treaties, and framing and passing new laws. To these he adds the power of inflicting death, banishment, and forfeiture, and of punishing also for public peculation. In the exercise of judicial power, he includes not only The punishment of crimes and misdemeanors, but the redress of civil injuries.3 Dionysius of Halicarnassus, points out three distinguishing marks of sovereign power; and those are, the right of appointing magistrates, the right of enacting and repealing laws, and the right of making war and peace. To which, in another part, he adds the administration of justice, the supreme authority in matters of religion, and the right of calling general councils.
A true definition comprehends every possible branch of authority that can grow out of the possession and exercise of sovereign power. For the ruler of every state must exercise his authority either in person, or through the medium of others. His own personal acts must be either general or special. He may be said to do GENERAL acts in passing or repealing laws, respecting either temporal matters, or spiritual concerns, as far as the latter relate to the welfare of the state. The knowledge of these principles is called by Aristotle the masterpiece in the science of government.
The particular acts of the Sovereign are either directly of a public nature, or a private, but even the latter bear reference to his public capacity. Now the acts of the sovereign executive power of a directly public kind are the making of peace and war and treaties, and the imposition of taxes, and other similar exercises of authority over the persons and property of its subjects, which constitute the sovereignty of the state. Aristotle calls the knowledge of this practice political and deliberative science.
The private acts of the sovereign are those, in which by his authority, disputes between individuals are decided, as it is conducive to the peace of society that these should be settled. This is called by Aristotle the judicial power. Thus the acts of the sovereign are done in his name by his magistrates or other officers, among whom ambassadors are reckoned. And in the exercise of all those rights sovereign power consists.
VII. That power is called sovereign, whose actions are not subject to the controul of any other power, so as to be annulled at the pleasure of any other human will. The term ANY OTHER HUMAN WILL exempts the sovereign himself from this restriction, who may annul his own acts, as may also his successor, who enjoys the same right, having the same power and no other. We are to consider then what is the subject in which this sovereign power exists. Now the subject is in one respect common, and in another proper, as the body is the common subject of sight, the eye the proper, so the common subject of sovereign power is the state, which has already been said to be a perfect society of men.
Now those nations, who are in a state of subjugation to another power, as the Roman provinces were, are excluded from this definition. For those nations are not sovereign states of themselves, in the present acceptation of the word; but are subordinate members of a great state, as slaves are members of a household. Again it happens that many states, forming each an independent body, may have one head. For political are not like natural bodies, to only one of which the same head can belong. Whereas in the former, one persons can exercise the function of the head to many distinct bodies. As a certain proof of which, when the reigning house has become extinct, the sovereign power returns to the hands of the nation. So it may happen, that many states may be connected together by the closest federal union, which Strabo, in more places than one calls a system, and yet each retain the condition of a perfect, individual state, which has been observed by Aristotle and others in different parts of their writings. Therefore the common subject of sovereign power is the state, taken in the sense already explained. The proper subject is one or more persons according to the laws and customs of each nation. This is called by Galen in the sixth book DE PLACITIS HIPPOCRAT ET PLATONIS, the first power of the state.
VIII. And here is the proper place for refuting the opinion of those, who maintain that, every where and without exception, the sovereign power is vested in the people, so that they have a right to restrain and punish kings for an abuse of their power. However there is no man of sober wisdom, who does not see the incalculable mischiefs, which such opinions have occasioned, and may still occasion; and upon the following grounds they may be refuted.
From the Jewish, as well as the Roman Law, it appears that any one might engage himself in private servitude to whom he pleased. Now if an individual may do so, why may not a whole people, for the benefit of better government and more certain protection, completely transfer their sovereign rights to one or more persons, without reserving any portion to themselves? Neither can it be alledged that such a thing is not to be presumed, for the question is not, what is to be presumed in a doubtful case, but what may lawfully be done. Nor is it any more to the purpose to object to the inconveniences, which may, and actually do arise from a peoples thus surrendering their rights. For it is not in the power of man to devise any form of government free from imperfections and dangers. As a dramatic writer says, you must either take these advantages with those imperfections, or resign your pretensions to both.
Now as there are different ways of living, some of a worse, and some of a better kind, left to the choice of every individual; so a nation, under certain circumstances, WHEN for instance, the succession to the throne is extinct, or the throne has by any other means become vacant, may chuse what form of government she pleases. Nor is this right to be measured by the excellence of this or that form of government, on which there may be varieties of opinion, but by the will of the people.
There may be many reasons indeed why a people may entirely relinquish their rights, and surrender them to another: for instance, they may have no other means of securing themselves from the danger of immediate destruction or under the pressure of famine it may be the only way, through which they can procure support. For if the Campanians, formerly, when reduced by necessity surrendered themselves to the Roman people in the following terms:Senators of Rome, we consign to your dominion the people of Campania, and the city of Capua, our lands, our temples, and all things both divine and human, and if another people as Appian relates, offered to submit to the Romans, and were refused, what is there to prevent any nation from submitting in the same manner to one powerful sovereign? It may also happen that a master of a family, having large possessions, will suffer no one to reside upon them on any other terms, or an owner, having many slaves, may give them their liberty upon condition of their doing certain services, and paying certain rents; of which examples may be produced. Thus Tacitus, speaking of the German slaves, says, Each has his own separate habitation, and his own household to govern. The master considers him as a tenant, bound to pay a certain rent in corn, cattle, and wearing apparel. And this is the utmost extent of his servitude.
Aristotle, in describing the requisites, which fit men for servitude, says, that those men, whose powers are chiefly confined to the body, and whose principal excellence consists in affording bodily service, are naturally slaves, because it is their interest to be so. In the same manner some nations are of such a disposition that they are more calculated to obey than to govern, which seems to have been the opinion which the Cappadocians held of themselves, who when the Romans offered them a popular government, refused to accept it, because the nation they said could not exist in safety without a king. Thus Philostratus in the life of Apollonius, says, that it was foolish to offer liberty to the Thracians, the Mysians, and the Getae, which they were not capable of enjoying. The example of nations, who have for many ages lived happily under a kingly government, has induced many to give the preference to that form. Livy says, that the cities under Eumenes would not have changed their condition for that of any free state whatsoever. And sometimes a state is so situated, that it seems impossible it can preserve its peace and existence, without submitting to the absolute government of a single person, which many wise men thought to be the case with the Roman Republic in the time of Augustus Cæsar. From these, and causes like these it not only may, but generally does happen, that men, as Cicero observes in the second book of his offices, willingly submit to the supreme authority of another.
Now as property may be acquired by what has been already styled just war, by the same means the rights of sovereignty may be acquired. Nor is the term sovereignty here meant to be applied to monarchy alone, but to government by nobles, from any share in which the people are excluded. For there never was any government so purely popular, as not to require the exclusion of the poor, of strangers, women, and minors from the public councils. Some states have other nations under them, no less dependent upon their will, than subjects upon that of of their sovereign princes. From whence arose that question, Are the Collatine people in their own power? And the Campanians, when they submitted to the Romans, are said to have passed under a foreign dominion. In the same manner Acarnania and Amphilochia are said to have been under the dominion of the Aetolians; Peraea and Caunus under that of the Rhodians; and Pydna was ceded by Philip to the Olynthians. And those towns, that had been under the Spartans, when they were delivered from their dominion, received the name of the free Laconians. The city of Cotyora is said by Xenophon to have belonged to the people of Sinope. Nice in Italy, according to Strabo, was adjudged to the people of Marseilles; and the island of Pithecusa to the Neapolitans. We find in Frontinus, that the towns of Calati and Caudium with their territories were adjudged, the one to the colony of Capua, and the other to that of Beneventum. Otho, as Tacitus relates, gave the cities of the Moors to the Province of Baetia. None of these instances, any more than the cessions of other conquered countries could be admitted, if it were a received rule that the rights of sovereigns are under the controul and direction of subjects.
Now it is plain both from sacred and profane history, that there are kings, who are not subject to the controul of the people in their collective body; God addressing the people of Israel, says, if thou shalt say, I will place a king over me; and to Samuel Shew them the manner of the king, who shall reign over them. Hence the King is said to be anointed over the people, over the inheritance of the Lord, over Israel. Solomon is styled King over all Israel. Thus David gives thanks to God, for subduing the people under him. And Christ says, the Kings of the nations bear rule over them. There is a well known passage in Horace, Powerful sovereigns reign over their own subjects, and the supreme being over sovereigns themselves. Seneca thus describes the three forms of government, Sometimes the supreme power is lodged in the people, sometimes in a senate composed of the leading men of the state, sometimes this power of the people, and dominion over the people themselves is vested in a single person. Of the last description are those, who, as Plutarch says, exercise authority not according to the laws, but over the laws. And in Herodutus, Otanes describes a monarch as one whose acts are not subject to controul. Dion Prusaeensis also and Pausanias define a monarchy in the same terms.
Aristotle says there are some kings, who have the same right, which the nation elsewhere possesses over persons and property. Thus when the Roman Princes began to exercise regal power, the people it was said had transferred all their own personal sovereignty to them, which gave rise to the saying of Marcus Antoninus the Philosopher, that no one but God alone can be judge of the Prince. Dion. L. liii. speaking of such a prince, says, he is perfectly master of his own actions, to do whatever he pleases, and cannot be obliged to do any thing against his will. Such anciently was the power of the Inachidae established at Argos in Greece. For in the Greek Tragedy of the Suppliants, Aeschylus has introduced the people thus addressing the King: You are the state, you the people; you the court from which there is no appeal, you preside over the altars, and regulate all affairs by your supreme will. King Theseus himself in Euripides speaks in very different terms of the Athenian Republic; The city is not governed by one man, but in a popular form, by an annual succession of magistrates. For according to Plutarchs explanation, Theseus was the general in war, and the guardian of the laws; but in other respects nothing more than a citizen. So that they who are limited by popular controul are improperly called kings. Thus after the time of Lycurgus, and more particularly after the institution of the Ephori, the Kings of the Lacedaemonians are said by Polybius, Plutarch, and Cornelius Nepos, to have been Kings more in name than in reality. An example which was followed by the rest of Greece. Thus Pausanias says of the Argives to the Corinthians, The Argives from their love of equality have reduced their kingly power very low; so that they have left the posterity of Cisus nothing more than the shadow of Kings. Aristotle denies such to be proper forms of government, because they constitute only a part of an Aristocracy or Democracy.
Examples also may be found of nations, who have not been under a perpetual regal form, but only for a time under a government exempt from popular controul. Such was the power of the Amimonians among the Cnidians, and of the Dictators in the early periods of the Roman history, when there was no appeal to the people, from whence Livy says, the will of the Dictator was observed as a law. Indeed they found this submission the only remedy against imminent danger, and in the words of Cicero, the Dictatorship possessed all the strength of royal power.
It will not be difficult to refute the arguments brought in favour of the contrary opinion. For in the first place the assertion that the constituent always retains a controul over the sovereign power, which he has contributed to establish, is only true in those cases where the continuance and existence of that power depends upon the will and pleasure of the constituent: but not in cases where the power, though it might derive its origin from that constituent, becomes a necessary and fundamental part of the established law. Of this nature is that authority to which a woman submits when she gives herself to a husband. Valentinian the Emperor, when the soldiers who had raised him to the throne, made a demand of which he did not approve, replied; Soldiers, your election of me for your emperor was your own voluntary choice; but since you have elected me, it depends upon my pleasure to grant your request. It becomes you to obey as subjects, and me to consider what is proper to be done.
Nor is the assumption true, that all kings are made by the people, as may be plainly seen from the instances adduced above, of an owner admitting strangers to reside upon his demesnes on condition of their obedience, and of nations submitting by right of conquest. Another argument is derived from a saying of the Philosophers, that all power is conferred for the benefit of the governed and not of the governing party. Hence from the nobleness of the end, it is supposed to follow, that subjects have a superiority over the sovereign. But it is not universally true, that all power is conferred for the benefit of the party governed. For some powers are conferred for the sake of the governor, as the right of a master over a slave, in which the advantage of the latter is only a contingent and adventitious circumstance. In the same manner the gain of a Physician is to reward him for his labour; and not merely to promote the good of his art. There are other kinds of authority established for the benefit of both parties, as for instance, the authority of a husband over his wife. Certain governments also, as those which are gained by right of conquest may be established for the benefit of the sovereign; and yet convey no idea of tyranny, a word which in its original signification, implied nothing of arbitrary power or injustice, but only the governments or authority of a Prince. Again, some government may be formed for the advantage both of subjects and sovereign, as when a people, unable to defend themselves, put themselves under the protection and dominion of any powerful king. Yet it is not to be denied, but that in most governments the good of the subject is the chief object which is regarded: and that what Cicero has said after Herodotus, and Herodotus after Hesiod, is true, that Kings were appointed in order that men might enjoy complete justice.
Now this admission by no means goes to establish the inference that kings are amenable to the people. For though guardianships were invented for the benefit of wards, yet the guardian has a right to authority over the ward. Nor, though a guardian may for mismanagement be removed from his trust, does it follow that a king may for the same reason be deposed. The cases are quite different, the guardian has a superior to judge him; but in governments, as there must be some dernier resort, it must be vested either in an individual, or in some public body, whose misconduct, as there is no superior tribunal before which they can be called, God declares that he himself will judge. He either punishes their offences, should he deem it necessary; or permits them for the chastisement of his people.
This is well expressed by Tacitus: he says, you should bear with the rapacity or luxury of rulers, as you would bear with drought, or excessive rains, or any other calamities of nature. For as long as men exist there will be faults and imperfections; but these are not of uninterrupted continuance, and they are often repaired by the succession of better times. And Marcus Aurelius speaking of subordinate magistrates, said, that they were under the controul of the sovereign: but that the sovereign was amenable to God. There is a remarkable passage in Gregory of Tours, where that Bishop thus addresses the King of France, If any of us, Sir, should transgress the bounds of justice, he may be punished by you. But if you exceed them, who can call you to account? For when we address you, you may hear us if you please; but if you will not, who can judge you except him, who has declared himself to be righteousness? Among the maxims of the Essenes, Porphyry cites a passage, that no one can reign without the special appointment of divine providence. Irenaeus has expressed this well, Kings are appointed by him at whose command men are created; and their appointment is suited to the condition of those, whom they are called to govern. There is the same thought in the Constitutions of Clement, You shall fear the King, for he is of the Lords appointment.
Nor is it an objection to what has been said, that some nations have been punished for the offences of their kings; for this does not happen, because they forbear to restrain their kings, but because they seem to give, at least a tacit consent to their vices, or perhaps, without respect to this, God may use that sovereign power which he has over the life and death of every man to inflict a punishment upon the king by depriving him of his subjects.
IX. There are some who frame an imaginary kind of mutual subjection, by which the people are bound to obey the king, as long as he governs well; but his government is subject to their inspection and controul. If they were to say that his duty to the sovereign does not oblige any one to do an act manifestly unjust and repugnant to the law of God; they would say nothing but what is true and universally admitted, but this by no means includes a right to any controul over the Princes conduct in his lawful government. But if any people had the opportunity of dividing the sovereign power with the king, the privileges of the one, and the prerogatives of the other ought to be defined by certain bounds, which might easily be known, according to the difference of places, persons, or circumstances.
Now the supposed good or evil of any act, especially in political matters which admit of great variety of opinions and much discussion, is not a sufficient mark to ascertain these bounds. From whence the greatest confusion must follow, if under pretence of promoting good or averting evil measures, the people might struggle for the Princes jurisdiction: a turbulent state of affairs, which no sober minded people ever wished to experience.
X. After refuting false opinions, it remains to apply some cautions, which may point out the way to ascertain correctly the person to whom sovereign power, in every state, of right belongs. The first caution necessary is to avoid being deceived by ambiguous terms, or appearances foreign to the real subject. For instance, among the Latins, although the terms PRINCIPALITY and KINGDOM are generally opposed to each other, when Caesar says, that the father of Vercingetorix held the principality of Gaul, and was put to death for aiming at sovereign power; and when Piso, in Tacitus calls Germanicus the son of a Roman Prince, not of a Parthian King; and when Suetonius says, that Caligula was on the point of converting the power of a prince into that of a king; and Velleius asserts that Maroboduus not contented with the authority of a prince over voluntary adherents and dependents, was grasping in his mind at regal power; yet we find these terms though in reality very distinct were often confounded. For the Lacedaemonian chiefs, the descendants of Hercules, though subject to the controul of the Ephori, were nevertheless called kings: and Tacitus says, that among the ancient Germans there were kings, who governed more by the influence of persuasion than by the authority of power. Livy too, speaking of king Evander, describes him as reigning more by personal authority than by his regal power; and Aristotle, Polybius, and Diodorus give the names of Kings to the Suffetes or Judges of the Carthaginians. In the same manner Solinus also calls Hanno King of the Carthaginians. Strabo speaks of Scepsis in Troas, that having incorporated the Milesians into the state, it formed itself into a Democracy, leaving the descendants of the ancient kings the title, and something of the dignity of kings.
On the other hand, the Roman emperors, after they had exercised openly, and without any disguise, a most absolute monarchical power, were notwithstanding called Princes. And in some popular states the chief magistrates are graced with ensigns of royalty.
Again the states general, that is the convention of those who represent the people, divided into classes according to Gunther, consist of three orders, which are the Prelates, the Nobles, and Deputies of large towns. In some places, they serve as a greater council to the king, to communicate to him the complaints of his people, which might otherwise be kept from his ears; leaving him at the same time full liberty to exercise his own discretion upon the matters so communicated. But in other places they from a body with power to inquire into the princes measures, and to make laws.
Many think that in order to know whether a prince be sovereign or not, it is proper to inquire whether his title to the crown is by election or inheritance. For they maintain that hereditary monarchies alone are sovereign. But this cannot be received as a general criterion. For sovereignty consists not merely in the TITLE to the throne, which only implies that the successor has a right to all the privileges and prerogatives that his ancestors enjoyed, but it by no means affects the nature or extent of his powers. For right of election conveys all the powers, which the first election or appointment conferred. Among the Lacedaemonians the crown was hereditary even after the institution of the Ephori. And Aristotle describing the chief power of such a state, says, Of these kingdoms, some are hereditary, and others elective. In the heroic times most of the kingdoms in Greece were of this description, as we are informed by Thucydides. The Roman empire, on the contrary, even after the power of the Senate and people was abolished, was given or confirmed by election.
XI. Another caution is necessary. For to inquire into the matter of a right is not the same thing as to examine the nature of its tenure. A distinction which takes place not only in corporeal but in incorporeal possessions. For a right of passage or carriage through a ground is no less a right than that which entitles a man to the possession of the land itself. Now some hold these privileges by a full right of property, some by an usufructuary, and others by a temporary right. Thus the Roman Dictator had sovereign power by a temporary right. In the same manner kings, both those who are the first of their line elected to the throne, and those who succeed them in the lawful order, enjoy an usufructuary right, or inalienable right. But some sovereigns hold their power by a plenary right of property; when for instance it comes into their possession by the right of lawful conquest, or when a people, to avoid greater evils, make an unqualified surrender of themselves and their rights into their hands.
The opinion of those can never be assented to, who say that the power of the Dictator was not sovereign, because it was not permanent. For in the moral world the nature of things is known from their operations. The powers attended with equal effects are entitled to equal names. Now the Dictator for the time being performed all acts with the same authority as the most absolute sovereign; nor could any other power annul his acts. The permanence therefore of uncertainty alters not the nature of a right, although it would undoubtedly abridge its dignity, and diminish its splendour.4
Note 1. As the topics of the third section have been so fully stated in the second chapter, that section has been omitted, and the translation goes on from the second of the original to the fourth. (Translator.) [back]
Note 2. In case of rebellion, the subjects taken in arms, have no right to be treated as prisoners of war, but are liable to punishment as criminals. [back]
Note 3. Wrongs are divisible into two sorts or species, PRIVATE WRONGS, and PUBLIC WRONGS. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are therefore frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community, and are distinguished by the harsher appellation of crimes and misdemeanors.Blackst. Com. b. iii. c. i. [back]
Note 4. The translation proceeds from hence to the second book of the original, which seems to follow this part without any material break in the chain of argument: the intermediate sections relating to instances in the Roman Republic, which do not directly apply to the practice of modern governments.TRANSLATOR. [back]