Part 8

The Division of War Into Public and Private and the Nature of Sovereign Power

July 20, 2022

Part 8

Some maintain that, everywhere 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.

This is refuted by the fact that no one is wise to have not done wrong.

The Jewish and Roman Law lets anyone 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 alleged 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 people’s 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 why a people would 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.

The Campanians were reduced by necessity. They surrendered to the Romans in the following terms:

“Senators of Rome, we consign to your dominion the people of Campania, and the city of Capua,64 our lands, our temples, and all things both divine and human,”

If the Campania surrendered, 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 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 Caesar. 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.

Property may be acquired by just war in the same way as the rights to sovereignty. “Sovereignty” here means that of the 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 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.

There are kings, who are not subject to the control 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.

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 supreme66 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 Herodotus, 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 Plutarch’s 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,67 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 control.

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 a68 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 government or authority of a Prince. Again, some governments 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 was69 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 Lord’s 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.

Part 9

Some 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 control.

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 Prince’s 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 promoting70 good or averting evil measures, the people might struggle for the Prince’s jurisdiction: a turbulent state of affairs, which no sober minded people ever wished to experience.

Part 10

Where does the sovereign power, in every state, reside?

We should be careful about definitions.

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;

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 are71 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 form a body with power to inquire into the prince’s 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.

Part 11

The matter of a right is not the same thing as 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 way, 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 unqualified72 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.