[30] CHAPTER III.

Of War public and private. Of Sovereignty.

I. 1 The first and most necessary partition of War is this, that War is private, public, or mixed. Public war is that which it carried on under the authority of him who has jurisdiction; private, that which is not so; mixed, that which is public on one side and private on the other. Let us speak of private war first, as the more ancient.

2 That private war may be lawful, so far as Natural Law goes, I conceive is sufficiently apparent from what has been said above, when It was shown, that for any one to repel injury, even by force, is not repugnant to Natural Law [Chap. ii.]. But perhaps some may think that after judicial tribunals have been established, this is no longer lawful: for though public tribunals do not proceed from nature, but from the act of man, yet equity and natural reason dictate to us that we must conform to so laudable an institution; since it is much more decent and more conducive to tranquillity among men, that a matter should be decided by a disinterested judge, than that men, under the influence of self-love, should right themselves according to their notions of right. So Paulus the Jurist, and king Theodoric. [See the passages.]

II. 1 It is not to be doubted, indeed, that the licence which existed before the establishment of public justice is much restricted. Yet still it continues to exist; namely when public justice ends: for the law which forbids us to seek our own by other than judicial proceedings, must be understood to apply only when judicial aid can be had. Now judicial aid ceases either momentarily or continuously. It ceases momentarily when the judge cannot be waited for without certain 31danger or loss. It ceases continuously either de jure or de facto: de jure, if any one be in an unsettled place, as at sea, in a desert, in an uninhabited island, or in any other place where there is no political government: de facto, if the subjects do not obey the judge, or if the judge openly refuses to take cognizance.

2 What we have said, that even after judicial tribunals are established, all private war is not repugnant to Natural Law, may also be understood from the Jewish Law, in which God thus speaks by Moses, Exod. xxii. 2: If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him: if the sun be risen upon him, there shall blood be shed for him. For this law, making so nice a distinction, appears not only to give impunity to the slayer, but to explain Natural Law: and not to be founded in any peculiar divine mandate, but in common equity; and accordingly we find that other nations have followed the same. The Law of the Twelve Tables is well known, doubtless taken from the old Attic Law: If a man commits a robbery by night, and if any one kill him, it is justifiable homicide. And thus, by the laws of all nations which we know, he is deemed innocent who defends himself being in peril of life; which manifest consent is a proof that such a course is not at variance with Natural Law.

III. 1 Concerning the more perfect Instituted Divine Law (Chap. i. § xv.), namely the Evangelical Law, there is more difficulty. That God, who has more Right over our lives than we ourselves have, might have demanded from us forbearance to such an extent, that even when brought privately into danger, we should be bound to allow ourselves to be killed rather than kill another, I do not doubt. The question is, whether he did intend to bind us to this. It is usual to adduce for the affirmative two passages which I have already quoted with reference to the general question: I say unto you that ye resist not evil, Matth. v. 39, and Rom. xii. 19, Avenge not yourselves, dearly beloved. A third passage is those words of Christ to Peter, (Matth. xxvi. 52), Put up thy sword within the sheath, for all they that take the sword shall perish with the sword. Some add to these the example of Christ, who died for his enemies, Rom. v.8, 10.

2 Nor are there wanting among the ancient Christians, those who though they did not condemn public wars, thought that private self-defense was forbidden. We have already (Chap. II. § 10, No. 5) adduced the passages of Ambrose in defense of war: there are passages in Augustine more numerous and more clear, known to all. Yet the same Ambrose says, Perhaps when he said to Peter, who offered him two swords, It is enough; it was as if he said, that the use of such weapons was lawful tilt the Gospel: the Law was a teacher of equity, the Gospel, of truth. And the same writer in another place: A Christian, if he should come in the way of an armed robber, may not return his blows; lest in defending his safety he should stain his piety. And Augustine, As to the law which permits such (robbers and other violent transgressors) to be put to death, I reprehend it not, but how am I to defend those who 32put men to death, I do not see. And in another place, As to putting men to death that other men may not be killed by them, I cannot approve of such deeds; except the agent be a soldier, or a public officer, or do this, not for himself, but for others, having received legitimate authority. And Basil was of the same opinion.

3 But the opposite opinion, as it is the more common, so does it seem to us the more true, that such forbearance is not obligatory: for in the Gospel, we are told to love our neighbour as ourselves, but not better than ourselves; nay even, when an equal evil impend over ourselves and another, we are not forbidden to consult our own safety rather than that of others, as we have shewn above from St Paul, when he explains the law of kindness. Perhaps some one may urge In reply, that though I may prefer my own good to the good of my neighbour, this does not hold of unequal goods: and that I must rather give up my life than that the aggressor should be permitted to fall into eternal damnation. But we may answer that the person attacked may also need time for repentance before he dies, or may think so on probable grounds, and that the aggressor may possibly have time for repentance before his death. But in truth we are not to estimate the moral consequences of a danger into which a man throws himself, and from which he can relieve himself.

4 Certainly the Apostles, even to the last, with the knowledge and under the eye of Christ, travelled armed with sword, which also other Galileans, travelling from their country to Jerusalem, did for fear of robbers, as we learn from Josephus; who says also that the Essenes, most blameless men, did the same. Hence when Christ said that a time was at hand such that men should sell a garment to buy a sword, Luke xxii. 36, the Apostles answered that they had two in that company: which company consisted of the Apostles alone. And though what was said by Christ, was in truth, not a command but a proverbial expression, signifying that most grave perils were impending, as clearly appears from the opposition of the former time, which had been safe and prosperous, verse 35, When I sent you without purse, &c.; yet it shows what was customary, and what the Apostles thought lawful.

Now it is rightly said by Cicero, that It would not be lawful to carry a sword if it were not lawful under any circumstances to use it.

5 The other passage, Resist not evil, is more universal than that which follows, Give to every one that asketh: which nevertheless admits of exception, namely, that we are not to overburthen ourselves. Nay more: This precept concerning giving has nothing added to it of a restrictive force, but is limited only by the sense of equity: whereas the precept, not to resist, has the explanation added in the example of a buffet on the cheek; that it may be understood to oblige us precisely then when we are assailed by an injury such as a buffet, or something of the same kind: for otherwise it would have been more suitable to say, Resist not an injurious aggressor, but give up your lives rather than use arms.

33 6 In the words to the Romans, Avenge not yourselves, the Greek word means to avenge, not to defend. [See the passages.] And this is plain from the context: for he had just said, Rom. xii. 17, Recompense no man evil for evil; which is a description of vindictive, not of self-defensive conduct. And Paul supports himself by reference to Deut. xxxii. 35, where the meaning of the word, and the sense of the passage, shews that self-defense cannot be intended.

7 What is said to Peter does contain a prohibition of using the sword, but not in self-defense: for he had no reason to defend himself; since Christ had just said concerning his disciples, Suffer them to depart; and that, in order that the words which he had uttered might be fulfilled: Of those whom thou hast given me I have lost none: John xviii. 8, 9: nor to defend Christ, for he would not allow himself to be defended. And hence in St John he adds the reason for this prohibition: The cup which my Father has given me, shall I not drink it? verse 11; and in Matthew he says, How then shall the Scriptures be fulfilled, which say that so it must be? St Peter then, according to his fervid temper, was moved by the desire of revenge, not of defense. Add to this, that he was using weapons against those who came in the name of the public authorities: and whether these may in any case be resisted, is a peculiar question, to be specially treated hereafter. What the Lord adds, All they that take the sword shall perish by the sword, is either a proverb borrowed from common usage, which meant that blood leads to blood, and therefore that the use of arms is always full of peril; or, as is the opinion of Origen, Theophylact, Titus, and Euthemius, it denotes that we are not to take vengeance out of the bands of God, since it is what he will fully exact in his own time: and this is plainly expressed, Revelation xiii. 10, He that killeth with the sword must be killed with the sword. Here is the patience and the faith of the saints. And this agrees with what Tertullian says, So sufficient is God, as one in whom our patience may trust: if we leave our injuries to him, he is our avenger; if our losses, our recompenser; if our pains, our physician; if our death, our restorer to life. What a privilege of patience it is to make God our debtor! And at the same time the words of Christ seem to contain a prophecy of the punishment which the Roman sword was to exact from the sanguinary Jews.

8 With regard to the example of Christ, who is alleged to have died for his enemies, it may be answered, that all the acts of Christ are full of virtue, and such as may be laudably imitated, as far as is possible, and will not fail of their reward; but they are not all such as proceed from a law, or make a law for us. For that Christ died for his enemies and for the ungodly, was what he did, not in pursuance of any law, but from a special covenant with his Father; who promised, on that condition, not only eternal glory, but also an endless offspring, Isaiah liii. 10. And so Paul describes this as a special and exceptional and unparalleled act, Rom. v.7: Scarcely for a righteous man will one die. 34And Christ commands us to put our life in peril, not for any one, but for the brethren, 1 John iii. 16.

9 As to the opinions adduced from Christian writers, partly they appear to be rather counsels, and the recommendation of an elevated purpose, partly they are the private opinions of those writers, not the common judgment of the Church. For in the very ancient Canons which are called Apostolic, he especially is excluded from the communion, who in a quarrel had slain his adversary at once, in heat of blood. And this opinion Augustine, whom we have quoted on the opposite side [§ ii. Art. 2], appears to approve.

IV. [And now of Public War.] 1 Public War is either formal, according to the Law of Nations, or less formal. What I here call formal, is commonly called legitimate, in that sense in which a legitimate will is opposed to a codicil, and a legitimate marriage, to the cohabitation of slaves: not that a man may not lawfully make codicils, or a slave cohabit with a woman; but because a Will and a Marriage have peculiar effects by the Civil Law, which it is important to note. For many, not understanding the word legitimate, think that all wars which are not legitimate are unlawful and unjust. In order that a war may be formal according to the Law of Nations, two things are required; first, that it be carried on on both sides by the authority of those who have a political sovereignty; next, that certain formalities be employed, of which we shall speak in their place. Since both these conditions are requisite, one alone without the other is not sufficient.

2 An informal public war may both want those formalities, and be made against private persons, and by the authority of any magistrate. And if we look at the matter without reference to civil laws, it would seem that every magistrate has the right of making war, both to protect the subjects committed to his charge, and to exercise his jurisdiction, if opposed by force. But because by war the whole State is brought into danger, therefore it is provided by the laws of almost every nation, that war is not to be made except by the authority of the Sovereign Power. Plato has such a provision in the last book of his Laws. And in the Roman Law, he was held guilty of high treason who without the authority of the Sovereign made war, levied troops, or formed an army: the Cornelian law said, without authority of the People. So it is in the Codex of Justinian: and so argues Augustine. [See the text.]

3 But as all precepts, however universal, are to be interpreted according to equity, so is this law. For in the first place, there can be no doubt that he who is at the head of any jurisdiction may, through the officers of his court, compel by force a few contumacious persons to obey him, when there is no need of major force for the purpose. And again, if the danger be present and pressing, so that there is no time to consult the Sovereign, here also necessity makes an exemption. On the ground of such a right as this, L. Pinarius, the commander 35of the garrison of Enna, being aware that the townsmen had the intention to revolt and join the Carthaginians, by a sudden onslaught on them kept possession of the town. And even without great necessity, in order to obtain satisfaction for injuries which the king neglects to prosecute, Francis Victoria gave the citizens of towns the right of making war. But this opinion is deservedly repudiated by others.

V. 1 In what events the right of using arms is to be allowed to subordinate magistrates, and whether such a war is to be called a public war, the Jurists differ. Some affirm, some deny. If indeed we call that public which is done by the authority of the magistrate, there can be no doubt that such wars are public wars; and that therefore those who in such cases oppose the magistrates, incur the punishment of contumacy against their superiors. But if public be taken in a higher sense, for that which is formal, as beyond controversy it often is, those are not public wars; for the full right of public war requires both the authority of the Sovereign and other conditions. Nor is this disproved by the fact that in such struggles men have their goods taken from them, and licence is granted to soldiers: for those features are not so peculiar to public war that they may not have place in other cases.

2 But this too may happen; that in an extensive empire, the subordinate powers may have, as a matter conceded to them, the right of making war: and if this be the case, the war must then be considered as made by authority of the Sovereign power; for when a superior gives another the right of doing anything, it is held to be done by the authority of the giver.

3 A more difficult controversy is, whether, when there is no such mandate, a conjecture of the will of the Sovereign be sufficient. To me it seems that this is not to be admitted. For in this state of things, it is not enough to consider, What would be the wish of the Sovereign if he were consulted: but rather this: What the Sovereign, in the case when the business admits of delay, or is of doubtful prudence, would wish to be done without consulting him, if a general rule on this subject were to be established. For however in any particular case the reason [for consulting the Sovereign] may seem to vanish on examination, the general rule of not incurring the dangers [which arise from not doing so] does not cease to have weight: and this cannot be done, if every [subordinate] magistrate judges for himself in such cases.

4 [Examples.] Thus Cn. Manlius was rightly accused by his officers of having made war on the Gallo-Grecians without the command of the Roman people: for though there had been legions of those Galli in the army of Antiochus, yet, peace being concluded with Antiochus, the question, whether that offence was to be further visited upon the Gallo-Greclans, was to be decided by the Roman people, not by Cn. Maulius. [Again] because Cæsar had made war on the Germans, Cato advised that he should be given up to the Germans: but in this, I conceive that he did not think of Right, so much as wish the city to 36be delivered from the fear of a master. For the Germans had assisted the Gauls, the enemies of the Romans, and therefore there was an injury to complain of, if the Romans had just cause for their war against the Gauls. But Cæsar, when he had had Gaul assigned him as a province, ought to have been content to expel the Germans from it, and ought not, without having any danger on that side, to have followed the Germans within their own frontier, without first consulting the Roman people. Hence the Germans had not the right of demanding that Cæsar should be surrendered to them, but the Romans had the right of calling Cæsar to account. So the Carthaginians answered the Romans in a similar case; [when Hannibal had besieged Saguntum.] I do not conceive that the question between us is whether Saguntum was besieged by private or by public authority, but whether the siege was justifiable or not. For it is a question between us and our officer whether he acted by our authority or his own; our dispute with you is, whether the treaty allowed the act.

5 Cicero defends the act both of Octavius and of Decimus Brutus who of their own motion made war upon Antony. But, even if Antony had deserved to be treated hostilely, the decision of the Senate and the people should have been waited for, whether it was for the interest of the State to overlook the act [of Antony] or to avenge it; to treat for peace, or to rush into arms. For no one is bound to use his Right to his own loss. And if Antony was judged a public enemy, it was for the Senate and people to determine by whom the war was to be conducted. So when Cassius asked the Rhodians for soldiers to help him according to their treaty, they replied that they would send them if the Senate ordered them.

6 Warned by this and other examples, we must recollect not to give our approval to everything which is said by authors, even of great name; for they are often governed by the time, or by partial affections, and stretch their measure to their block. We must endeavour to form a clear and unbiassed judgment, and avoid setting up as examples cases which ought to be excused rather than praised.

7 Since then it is said that a public war must not be carried on except by the authority of the person in whom the Sovereignty resides; it will be necessary, for the understanding of this question, and in order to decide other points concerning war, that we should understand what this Sovereignty is, and who has it; and this all the more, inasmuch as learned men, in our time, arguing the question rather with a view to some present object than according to the truth, have made a subject, in itself not simple, still more entangled.

VI. [Of Sovereignty.] 1 The Moral Faculty or Attribute of governing a state, which is commonly called the Civil Power, is described in Thucydides by three characters, when he says that a city is αὐτονομος, αὐτοδίκος, αὐτοτελῆς; has its own laws, tribunals, and magistrates. Aristotle makes three parts of the administration of the States consultation concerning public affairs, election of magistrates, and 37administration of justice. To the first part he refers deliberation concerning peace, war, treaties, laws; he adds the infliction of death, or exile, forfeiture, bribery; that is, as I interpret him, public offences, having before spoken of the administration of justice in private cases. Dionysius of Halicarnassus notes three points especially; the Right of creating magistrates, the Right of making and abrogating laws, and the Right of deciding on war and peace: and again in another place, he adds the case of sacred things, and the convocation of the assemblies.

2 We may easily divide this subject in such a way that there shall be neither defect nor redundance. He who rules the State rules it partly by himse1f, partly by others. By himself, he is either employed about general matters, or about particular. He is employed about general matters, in making laws and in rescinding them; both with regard to sacred subjects (so far as the care of those belongs to the State) and secular. The particular matters about which he is employed are either directly public, or private, but with a reference to the public. Directly public, are public acts, as making war, peace, treaties; or money matters, as taxes and commercial duties, and the like; among which is comprehended that dominium eminens which the State has for public uses, over its citizens and the property of its citizens. This art is by Aristotle called by the general name πολιτικὴ, that is civil, and βουλευτικὴ, deliberative. Private matters are controversies between individuals which the public interest requires to be settled by public authority. The art which deals with them is called δικαστικὴ, judicial. The part of government which is executed by others, is executed either by magistrates, or by other commissioned persons, among whom are ambassadors. And in those things consists the Civil Power.

VII. I That Power is called Sovereign, whose acts are not subject to the control of another, so that they can be rendered void by the act of any other human will. When I say any other, I exclude the Sovereign himself, who may change his determination, as may his successor who has the same authority, and therefore the same power, not another power. Let us see then in what subject this Sovereign power resides. The subject in which a power resides is either common or special; as the common subject in which the sight resides is the body, but the special subject is the eye. And in like manner the common subject in which the Sovereignty resides is the State, which we have before described as a perfect [independent] community.

2 We exclude therefore peoples which have put themselves in subjection to another people, such as were the provinces of the Romans. Such peoples are not by themselves a State, as we now take that word, but the inferior members of a great State, as servants are members of a family. Again, it sometimes happens that several peoples have the same head, though each of these peoples constitutes a perfect community; for though several bodies cannot have one head in the natural body, they may in the moral body; for there, the same per38son may be separately regarded as the head in his relation to different bodies. Of which there may be a certain indication in this, that when the reigning house is extinct, the right of government reverts to each people separately. And thus it may happen that several States are combined in a close federal connexion, and make one System, and yet each is a separate State. [Strabo, Aristotle.]

3 Therefore the common subject of Sovereignty is the State, understood in the way we have described. The special subject is one or more persons according to the laws and customs of each nation.

VIII. 1 And here we must first reject their opinion who say that the Sovereignty everywhere belongs to the People; so that it has the power of controlling kings, and of punishing them if they abuse their power. What evil this opinion has caused, and may cause, any wise man may see. We refute it with these arguments.

A man may by his own act make himself the slave of any one as appears by the Hebrew and the Roman law. Why then may not a people do the same, so as to transfer the whole Right of governing it to one or more persons? And it is not to the purpose to say that we are not to presume such a fact; for this question is not, what is to be presumed in a case of doubt, but what may lawfully be done. Nor is it to the purpose to allege the inconveniences which follow or may follow from such a course: for whatever form of government you take, you will never escape all inconvenience.

2 But as there are many ways of living, one better than another, and each man is free to choose which of them he pleases; so each nation may choose what form of government it will: and its right in this matter is not to be measured by the excellence of this or that form, concerning which opinions maybe various, but by its choice.

3 Nor is it difficult to conceive causes why a people may resign the whole power of its own government, and transfer it to another; as for example, if it be in great peril and cannot find a defender on other conditions: or if it be in want and cannot otherwise obtain sustenance. So the Campanians of old submitted themselves to the Romans, [see the text from Livy] and some peoples, which wished to do so, were not accepted. What then prevents a people from giving itself up to some powerful man in the same manner? Or again, it may happen that a large landowner will not allow persons to dwell on his land on any other condition: or if any one have a large body of slaves, he may manumit them on condition of being his subjects and paying his taxes. So the Germans did. [See the text from Tacitus.]

4 Add to this that, as Aristotle says that some men are slaves by nature, so some nations are more prone to be governed than to govern. So the Cappadocians, when the Romans offered them their liberty, refused it, and declared they could not live without a king. So it was said that it was absurd to give freedom to Thracians, Mysians, Getans, because they had no heart for It.

5 Also many may be moved by the examples of nations which have 39lived happily for many generations under the rule of kings; as the cities of Asia under Eumenes. And sometimes the condition of the State is such that it cannot be safe except under the rule of one; as many prudent men have thought was the case with the Roman State at the time of Augustus. On these and other accounts, it not only may, but does often happen, that many subject themselves to the rule and power of another.

6 Moreover civil authority, or the right of governing, may also be acquired by legitimate war. And all this applies to a government by a body of Nobles, as well as by a single Ruler: and no State was ever so popular, that some were not excluded from public voting; as strangers, paupers, women and children.

7 Some peoples have other peoples under them, not less subject than if they were under kings: and thus that interrogation, Is the Collatine people its own master? And the Campanians, when they had given themselves up to the Romans, are spoken of as not being their own masters. Acarnania and Amphilochia are described subjects of the Etolians; Persea and Caunus, as dependencies of the Rhodians; Pydna, as given by Philip to Olynthus. The towns which had been under the Spartans, after they were taken from their rule, had the name of Eleutherolacones, Free Laconians. Cotyora is spoken of by Xenophon as a city of the Sinopians. Nicæa in Italy was adjudged to the Massilians, as we read in Strabo, and the island Pithecusa to the Neapolitans. So in Frontinus we read that the town Calatia was adjudged to Capua, Caudium to the colony of Beneventum, with their territories. Otho gave the cities of the Mauri to the province of Bætica, as it is recorded in Tacitus. All which acts must be rejected, if we are to hold the doctrine that the right of governing is always subject to the judgment and will of those who are governed.

8 That there are Kings who are not subject to the will of the People, even taken in its totality, both sacred and profane history testify. The kings of Israel were appointed by God, and were said to be anointed over the people, over the Lord’s inheritance, over all Israel. [See the passages quoted O. T.: and also Horace.]

9 Seneca described three forms of government;—by the people, by a senate, or by a monarch: [and the latter is considered as absolute.] So Plutarch speaks of those who have authority not only from the laws, but over the laws. Otanes in Herodotus speaks of irresponsible authority. So Dio Prusæensis and Pausanias oppose kingly power to responsible power.

10 Aristotle says that some kings have the power which, in other places, the nation has over itself. So when the Roman rulers had acquired a really royal power, the People is said to have transferred to them all its authority and power. Hence Antoninus said that God alone is the judge of the Prince. Dio says, of such a Prince, that he is free to do and not to do what he pleases. Such a power was that in 40ancient Greece of the Inachidæ at Argon. [See the Chorus in the Supplices of Æschylus.]

11 Very different was the power of the kings at Athens, as Theseus speaks in the Supplices of Euripides. [See the passage.] For Theseus as Plutarch explains, was only a Leader in war, and Guardian of the laws, being in other respects on a level with the citizens. Hence kings who are subject to the people are only improperly called kings. So after Lycurgus, the kings of the Lacedæmonians are said to be kings in name, not in reality, by Polybius, Plutarch, and Cornelius Nepos. And this example was followed in other parts of Greece, as at Argos. [See the passage from Pausanias.] And so the senate judged of the kings at Cuma, as Plutarch notes. Aristotle denies that such kingly government is a peculiar form of government, since it is only a part in an aristocratical or democratical constitution.

12 Sometimes we find, in peoples not generally governed by kings, examples of a temporary kingly authority, not subject to the people. Such was the authority of the Amymones among the Cnidians, and of the Dictators in the early times of Rome, when there was no appeal to the People: whence Livy says that the edict of the Dictator was obeyed as a divine law, there being no choice but to obey. And Cicero speaks of the Dictature as controlling the regal power.

13 The arguments on the other side [that all kings are responsible to the people] are not difficult to answer: for

(1) First, the assertion that he who constitutes any authority is superior to the person so constituted, is only true in that constitution which depends perpetually on the will of the constituent body: not in that which, though voluntary at first, afterwards becomes compulsory: thus a woman constitutes a person her husband, whom afterwards she is obliged for ever to obey. And in this strain is the speech of Valen- tinian to his soldiers. [See the passage.]

Nor is it true, as is assumed, that all kings are constituted by the people; which we have already shown by the example of a landowner accepting tenants on condition of their obeying him; and of nations conquered in war.

14 (2) The other argument is taken from the maxim of the philosophers, that all government exists for the sake of the governed, not of the governors; whence they conceive it follows that, the end being more noble than the means, the governed are superior to the governors.

But it is not universally true that all government is for the sake of the governed: for some kinds of government are for the sake of the governor, as that of the master in his family; for there the advantage of the servant is extrinsic and adventitious; as the gain of the physician is extrinsic to the art of medicine. Other kinds of government are for the sake of common utility, as the marital. So some kingly governments may be established for the good of the kings, as those which are won by victory: and these are not therefore to be called tyran41nies; since tyranny, as we now understand it, implies injustice. Some governments too may have respect to the utility both of the governor and the governed; as when a people in distress places a powerful king over it to defend it.

But I do not deny that in most governments, the good of the governed is the object; and that, as Healed, Herodotus and Cicero say, kings are constituted for the sake of justice. But it does not follow, as our opponents infer, that peoples are superior to kings: for guardianship is for the sake of the ward, and yet the guardian has authority over the ward. And we are not to allow them to urge that if a guardian neglects his duty to his ward, he may be superseded; and that therefore kings may be so. For this is the case with a guardian, because he has a superior, (the State); but in political government, because we cannot have an infinite gradation of superiors, we must stop at some person or body, whose transgressions, having no superior judge, are the province of God; as he himself declares. And he punishes them, if he deem fit to do so; or tolerates them, in order to punish or to try the people.

15 So Tacitus says that the vices of Princes are to be tolerated like bad seasons; and may alternate with better. And M. Aurelius said that the magistrates judge private men; Princes, the magistrates; God, Princes. In Gregory of Tours is a passage to the same effect. So the Essenes hold, in Porphyry: so Irenæus, and the Clementine Constitutions. [See the text.]

16 Nor is it an objection to this, that peoples are described as being punished for the faults of kings: for that does not happen because the people did not punish the king or control him, but because it consented, at least tacitly, to his transgressions^*. Although indeed, God might punish the King by his supreme power without the help of the people.

IX. 1 Some assert that there is a mutual subjection, so that the whole people ought to obey the king when he rules rightly, but when a king rules ill, he is subject to the people. If these reasoners were to say that those things which are manifestly iniquitous are not to be done, though commanded by the king, they would say what is true, and confessed by all good men: but this [resistance or disobedience] does not include any authority, or right of control.

If any people intended to share the power of government with the king, (on which point we shall have something to say hereafter,) such limits ought to be assigned to the power on each side as might easily be recognized by distinctions of places, persons, and matters.

2 But the goodness and badness of an act, [the allegation that the king rules well or ill,] which are often matters of great doubt, especially in political affairs, are not fit marks to make such distinctions. Whence 42the most extreme confusion must follow, if the king and the people claim cognisance of the same matter by the allegation of good and evil conduct. Such a disturbed state of things no people, so far as I know, ever thought of introducing.

X. 1 Having thus removed the opinions which are false, it remains that we lay down some cautions, which may skew us how to judge rightly in whom the Sovereign authority in each nation resides.

The first caution is this: that we are not to be deceived by ambiguous names or mere external appearances. For example, in the Latin there is a customary opposition of Governor (Princeps,) and King; as where Cæsar says that the father of Vincetorex acquired the government of Gaul, but was put to death because he aimed at the kingly power; and where Piso, in Tacitus, says that Germanicus was the son of a Roman governor, not of a Parthian king; and where Suetonius says that Caligula was within a little of converting the office of a Governor into a royal estate; and where in Velleius, Maroboduus is said to have imagined to himself, not a government constituted by the choice of subjects, but royal authority.

2 Yet we often find these two names confounded: for the Lacedæmonian governors of the posterity of Hercules, after they were subjected to the Ephori, were called nevertheless Kings, as we have seen. And in ancient Germany there were Kings whom Tacitus asserts to have held their authority by force of persuasion, not of command: and Livy says that King Evander governed more by personal might than by legal office; and Aristotle and Polybius call the Suffete of the Carthaginians, King; as also Diodorus; so likewise Solinus calls Hanno King of the Carthaginians: and Strabo says of Scepsia in the Troad, when, joining the Milesians, they formed a republic, that the posterity of the old Kings retained the royal name and something of the royal honour.

3 On the other hand, the Roman emperors, when they had acquired. unquestioned and unconcealed absolute powers, continued to be called Principes, not Kings.

Also the ensigns of royal power are assigned to the Governor in some cities which are free; [as to the Doge at Venice. Gronovius.]

4 The Estates of the Realm, or assemblies which represent the various classes of the community, “Prelates, Nobles, and Burgesses,” are sometimes only a Great Council of the King, serving to make him acquainted with the complaints of the people, which are often not urged in the Privy Council; and to enable him to decide what is best on such subjects. But in other places these Estates have the right of taking cognisance of the acts of the Prince, and even of prescribing laws by which he is bound.

5 Many think that the distinction of Sovereignty and subordinate authority is to be found in the difference of succession and election: what comes by succession they hold to be sovereign; not what comes by election. But this is certainly not universally true. For succession Is not a charter which determines the force of authority, but a con43tinuation of authority already existing. The authority bestowed by the election of the family is continued by succession: whatever amount of right the first election gives, the succession transmits the same. So the Lacedæmonian kings, though not absolute, were hereditary. The distinction is noted by Aristotle and Thucydides. On the other hand, the Roman empire was absolute, yet elective.

XI. 1 A second caution is this. We must distinguish between what a thing is, and what is the kind of possession of it. A thing is, for example, a piece of land; also, in this sense, a road, an act, a right of way. Now such a thing maybe held pleno jure, in full right of property; or jure usufructuario, as tenant for life; or jure temporario, as tenant for a time only. Thus the Roman Dictator held his authority as temporary tenant; most kings, both elected and hereditary, by usufructuary right; but some kings, in full right of property; as those who have acquired their power in a legitimate war, or in whose power any people has put itself absolutely, for some sufficient motive.

2 The Dictator was Sovereign, though temporary. For the nature of moral things [such as power] is known from their operations, and those faculties or powers which have the same effect must be called by the same name. Now the Dictator, during his office, performed all the acts which the most absolute king can perform; nor could his acts be rendered void by any one. And the duration of a thing does not alter its nature. If indeed you ask concerning the dignity, the majesty of the office, undoubtedly it is greater in a perpetual office. In the same manner those Regents are Sovereigns for the time, who govern during the nonage, insanity, or captivity of the king, and whose power is not revocable before a certain legitimate period.

3 The case is different with governors whose authority may be revoked at any time; as the kings of the Goths and the Vandals. These are not sovereign.

XII. [There are monarchies pleno jure.]

1 Some oppose this, because, they say, men are not things, and cannot be possessed pleno jure, as things. But personal liberty is one thing, civil liberty, another. Man may have personal liberty, so as not to be slaves; and yet not have civil liberty, so as to be free citizens. Libertas and regnum are constantly opposed in the Roman writers. [See the passages.] The question is not concerning the liberty of individuals, but of a people: and a people which is not thus free, is said to be non sui juris, non suæ potestatis. [See the passages.]

2 When a people is transferred from one Sovereign to another, it is properly, not the persons, but the right of governing them, which is transferred; as a freedman (libertus) may be assigned by his patron to one of his sons.

3 Again, they object that if the king has conquered another nation [and so made them his, pleno jure,] he has won them by the dangers and labours of his citizens, and therefore the acquisition is theirs. But this will not hold. For the king may have supported the army out of 44his own property or patrimony. For though he has only the usufruct of his patrimony, he may do what he likes with that. So in the Civil Law, when a property is adjudged from a tenant to the heir, the yearly fruit is not refunded, because that belongs not to the heir, but to the property.

A king then may have authority over a people proprio jure, so that he can even alienate the kingdom to another. This has even been done: as by Solomon to Hiram (or Hierom) king of Tyre.

4 And Often in Grecian history. [See the examples]

5 And in Roman history. Attalus left his kingdom, Asia, to the Romans by will: so did Nicomedes, Bithynia; so did Appion, Cyrenaica.

6 [Other examples.]

XIII. 1 Some sovereignties are not held pleno jure: namely, those which are bestowed by the will of the people. In this case, the king is not to be presumed to have the right of alienation. So Crantzius notes, as a thing without precedent, Unguin giving Norway by testament. The bequests of kingdoms by Charlemagne, Louis, and others, were to be taken rather as a commendation than an alienation: and accordingly Charlemagne desired to have his testament confirmed by the Frankish nobles. So Philip, king of Macedon, commended his nephew as king to the cities of Macedonia.

2 Louis restoring the city of Rome to Pope Paschal is not to the point; for the Franks might properly restore to the Roman people that authority over the city of Rome which they had received from the Roman people; and the Pope might be considered as representing the people.

XIV. Some powers lower than sovereignty are held pleno jure: as marquisates, counties, baronies, are sold, bequeathed, or otherwise alienated, much more commonly than kingdoms.

XV. 1 The distinction between patrimonial and non-patrimonial kingdoms is seen in the mode of appointing a Regent or Guardian, when the king, from age or disease, cannot act. In non-patrimonial kingdoms this in done by public law, or that failing, by consent of the people: in patrimonial kingdoms, by the father, or the family. Thus In Epirus, the Regents were appointed by the consent of the people: in the kingdom of Asia, by the will or testament of the sovereign.

2 Whether the king be, in addition, the owner of the land, as the king of Egypt after Joseph, and the kings of the Indian nations, makes no difference in this matter.

XVI. [Sovereignty is not destroyed by grants of rights from the Sovereign.]

1 The third observation is, that the authority does not cease to be sovereign, although the Ruler makes certain promises to his subjects, or to God, even of matters relating to the government. I do not now speak of promises to observe Natural Law and Divine Law, or the Jus gentium, to which all kings are bound, even without promise; but of 45the concession of rules to which they could not be bound without promise. The truth of this appears from the analogy of the master of a family, who, though he should have promised to do something which pertains to the government of the family, does not thereby cease to have the supreme power in the family, so far as family matters are concerned. Nor does a husband lose his marital power, by making certain promises to his wife.

2 But still it must be confessed, that when this in done, the sovereignty is in some degree limited, whether the obligations respect the exercise of certain acts, or directly affect the power. In the first case, an act done against the promise becomes unjust, because, as we shall elsewhere shew, a legitimate promise gives a Right to the promisee: in the second case, the promise is null by reason of defect of the power of making it. But it does not follow from this that the person so promising has a superior; for the promise is null, in this case, not by the act of superior power, but by Natural Law.

3 Thus the Persian king was absolute and irresponsible; yet he took an oath on his accession, and could not change laws duly made. [See the examples.] So the kings of the Ethiopians. So the kings of the Egyptians, who were absolute, were obliged to many observances: if they violated these, they could not be accused in their lifetime; but after their death they were accused, and buried with certain solemnities. So those Hebrew kings who had reigned ill were buried in places out of the Royal burial-ground. 2 Chron. xxiv. 25; xxviii. 27. And this was an excellent institution, preserving the sacredness of the kingly power, and yet restraining kings from violating their faith by the fear of a future judgment. So the kings of Epirus swore to reign according to the Laws.

4 But suppose the condition to be added, that if the king violate his promise he should lose his kingdom? Even so, his sovereignty does not cease; it becomes a mode of possessing the kingdom, narrowed by the condition, and not unlike to a temporary sovereignty. So the king of the Sabæans, as Agatharcides related, was completely absolute, but if he quitted his palace, was liable to be stoned.

5 So an estate which we enjoy by a trustee is ours no less than if it were possessed in full property; but it ceases to be ours when the conditions of the trust direct. Such conditions belong to other contracts, as well as to the tenure of government. Some leagues with neighbours seem to have been made with such a sanction.

XVII. I The Sovereignty may be divided according to its potential or its subjective parts.

The Sovereignty consists of the parts which we have mentioned [see § vi.], with the addition of irresponsibility: but it may be divided either according to the powers [deliberative, judicial, &c.] or the subjects who are governed. Thus the Roman Empire, though one, was often divided, so that one Ruler had the East, another the West; or into three parts. So too it may happen that a people when it 46chooses a king, may reserve certain acts to itself and may commit others to the king, pleno jure. This is not the case whenever the king is bound by certain promises, as we have shown; [§ xvi.] but is to be understood to happen then, when either the partition of power is expressly instituted, concerning which we have already spoken; or if a people, hitherto free, lay upon the king some perpetual precept; or if anything be added to the compact, by which it is understood that the king can be compelled or punished. For a precept is the act of a superior, at least in the thing commanded: to compel, is not always the act of a superior; for by Natural Law every creditor has the Right of compelling his debtor to pay; but to compel is at variance with the nature of an inferior. Therefore in the case of such compulsion, a parity of powers at least follows, and the Sovereignty is divided.

2 Many persons allege many inconveniences against such a two-headed Sovereignty; but in political matters nothing is quite free from inconveniences; and Rights arise, not from what seems to one or another convenient, but from the will of him who is the origin of Rights. For example, the kings established by the Heraclidæ in Argos, Messena and Sparta, were bound to govern within the rules of the law; and so long as they did so, the people were bound to preserve the throne to them.

Also such engagements have been made, not only between the king and his people, but among different kings, and among different peoples; and between kings and neighbouring peoples; each giving such a guarantee to the other.

XVIII. 1 There is no partition of the Sovereignty, in cases when kings allow their own acts not to be valid except when approved by some assembly^*. For acts which are thus rescinded are to be understood to be rescinded by the authority of the king; who provided such a caution against fallacious representations. So Antiochus the Third sent a rescript to the magistrates, that if he commanded anything contrary to the Laws, they should not obey him: and Constantine directed that widows and orphans should not be compelled to come to the Emperor’s court for judgment, though a rescript of the Emperor to that effect should be produced.

2 The case is like that of a testament in which it is added that no subsequent testament shall be valid; for this clause has the effect of making a later testament presumed not to be the real will of the testator. But as this clause may be rescinded by an express and special signification of the will of the writer, so may that direction of the king.

XIX. I do not here use the authority of Polybius, who refers the Roman State to the class of mixed Sovereignty. For at that time, if we look, not at the acts, but at the right of acting, it was merely democratical: for both the authority of the Senate, which he regards as an aristocracy, and that of the Consuls, whom he considers as kings, was 47subject to the People. And the same is to be said with respect to other political writers, who regard external appearances and daily administration, rather than the question of Rights.

XX. Examples of mixed Sovereignty. [See the text.]

1 The Hebrew kings were absolute, like other oriental monarchs

2 The Hebrew king had peculiar exceptions from the law:

3 Yet some cases were reserved to the Sanhedrim.

4 Mixed sovereignty among the Macedonians: the Gothones: the Pheacians:

5 Under the Roman kings:

6 In Rome under the early Consuls:

7 In Athens at the time of Solon.

These points being settled, let us examine certain questions which often occur in this matter.

XXI. 1 First, Whether one who is bound by an unequal alliance can have sovereign power.

By an unequal alliance, or unequal league, I do not mean one in which the parties have a different amount of power; as the league of the Thebans with the Persians at the time of Pelopidas; and of the Romans with the Massilians, and afterwards with king Masanissa; nor a league which has a transient operation, as when he who was an enemy is received into amity, on condition of paying the expences of the war, or any other consideration; but a league which by the force of the compact gives a permanent precedence to one of the parties: when for instance, the one party is bound to preserve the authority and majesty of the other, as was the case in the league of the Etolians with the Romans. [See the explanation in the text.] To this relation are referred what are called the Rights of Protectorate, Advocacy, Patronage, and the Rights of the Mother-cities in Greece over their Colonies. [See Thucydides.] So the league between Alba and Rome.

2 This is the characteristic of an alliance between unequals; that the greater share of power goes to the stronger, the greater share of advantage to the weaker. [Andronicus Rhodius.] And a people is free which is not under the power of any other, even though there be a league in which it is stipulated that it shall preserve the majesty of another people: [as Proculus pronounced.] Since therefore a people bound by such a league is free, it follows that it preserves its sovereignty.

The same may be said of a king; for there is an entire analogy between a free people, and a king who is truly a king. Proculus adds, that though one of the peoples be superior, both are free; superior is hero understood not of power, but of authority and dignity. So Clients are free, yet inferior to Patrons.

3 Clients are under the protection of their Patrons (in fide patronorum); so in an unequal alliance, the inferior people is under the protection of the people superior in dignity. They are under their patronship, not under their authority, sub patrocinio, non sub ditione. There are many examples of this distinction, in Appian, Livy, Cicero, 48Strabo. [See the text.] As private patronship does not take away personal liberty, so public patronship does not take sway public liberty, which cannot exist without sovereignty. Other kings, on the contrary, were really subjects of the superior power, as the kings of Armenia to the Romans, the kings of Cyprus to the Persian king. [See the authorities: Gronovius adds, for the Armenians, Florus, 4, 12.]

4 Proculus adds that We (the Romans) take cognisance of criminals in the federate cities; which seems at variance with what we have said. To understand this, we must know that there may be four kinds of controversies in such cases. First, if the subjects of the people or king which is under the protection of another, be charged with violation of the terms of the league: secondly, if the peoples or kings themselves be so charged: thirdly, if the allies, who are under the protection of the same people or king, have a dispute among themselves: fourthly, if the subjects complain of wrong done them by those under whose authority they are.

In the first case, if the offence be apparent, the king or people is bound either to punish the offender, or to give him up to the party whom he has wronged; but this holds good, not only in unequal, but in equal alliances, and even when there is no league in existence, as we shall hereafter shew. They are also bound to see that compensation be made, which was the office of the Recuperatores at Rome. [See the definition of Recuperatio from Festus.] But one of the allied states has not a direct Right of seizing or punishing the subject of another. So when Annibal seized Decius Magius the Campanian, he pleaded against this as contrary to the federal Rights, and was set at liberty.

5 In the second case, one ally has the power of compelling another to abide by the terms of the league, and even of punishing, if this be not done. But this also is not peculiar to unequal alliances; for the same holds in an equal alliance. For in order to justify any party in doing himself justice upon a wrong-doer, it is sufficient that he be not himself the subject of the offender; a case elsewhere to be treated. And therefore this is practised between kings and peoples not federate.

6 In the third case, as, in equal alliances, the dispute is commonly referred to a convention of the allies who are not interested in the dispute, as we read that the Greeks, antient Latins, and Germans used to do; or otherwise, to arbiters, or to the Head of the League as a common arbiter: so, in unequal alliances, it is commonly agreed that disputes are to be settled by reference to him who is the superior in the alliance. But this also does not prove superior authority; for even kings are accustomed to have pleas before judges appointed by themselves.

7 In the fourth case, the allies have no Right of Cognisance. So when Herod made accusations against his sons to Augustus, they pleaded that he himself, both as father and as king, had cognisance of them. So when some of the Carthaginians complained to Rome 49against Annibal, Scipio said that the Senate ought not to interfere in the interior matters of Carthage. And so Aristotle says that an Alliance differs from a single State in this; that Allies provide against their own mutual injuries, but not against the mutual injuries of the citizens of one of the Allied States.

8 In unequal alliances, the words command and obedience are some­times used with reference to transactions between the superior and inferior: but this does not refute what we have said. Such terms are either used of things tending to the common good of the alliance, or to the private advantage of the superior.

In common things, at times when the common convention is not assembled, the Head of the League usually gives commands to the allies; as Agamemnon to the Greek kings; and the Lacedæmonians, and afterwards the Athenians, to the Greek States. [See Thucydides and Isocrates.] The Latins call this commanding; (imperare;) the Greeks, more modestly, ordering; (τάσσειν.) [See Thucydides, Pliny.] This being done by the Head of an equal Alliance, may naturally be done by the Superior in an unequal Alliance. This kind of imperium, ἡγεμόνια, does not take away liberty. So the Rhodians say in Livy: so the Greek cities are described in Diodorus; so Dio Prusæensis says of the Athenians; so Cæsar of the Suevi.

9 In matters relating to the utility of the Superior in an unequal alliance, his requirements are called commands, not of Right, but as producing the effect of commands: as the requests of kings are often called commands; [so Livy] and as the patient is said to command his physician: [more commonly the physician is said to command the patient. J. B.]

10 But yet, true it is, that he who is superior in an alliance, if he be much the more powerful, often gradually obtains a real imperium, especially if the alliance be perpetual, with the Right of introducing garrisons into the towns; as the Athenians did when they allowed appeals to be made to them by their allies, which the Lacedæmonians never did; at which time Isocrates compares the power of the Athenians to an empire. So the Latins complained that under the figment of an alliance with Rome they were in slavery. So the Etolians spoke of the vain pretence and empty name of liberty; and the Achæans afterwards, that the alliance was a slavery, having no security of liberty. So Civilis, in Tacitus, complains that it was not an alliance, as formerly, but that they were treated like slaves; and again, that their wretched slavery was falsely called peace. Eumenes, in Livy, says that the allies of the Rhodians were allies in name only; in reality, subjects and under command: and the Magnesians say that Demetrias, free in appearance, is really at the beck of the Romans; and Polybius says that the Thessalians, in pretence free, were really under the power of the Macedonians.

11 When this happens, and such Power becomes a Right, a case which we shall have to treat hereafter, then those who had been Allies 50become Subjects; or at least there is a partition of the Sovereignty; which, as we have above said, may take place in certain circumstances.

XXII. The payment of money to the Superior does not destroy Sovereignty; whether it be a compensation for injury done, or a consideration for protection. Such cases happened among the Greeks; and to the kings of the Hebrews and of the neighbouring nations after the time of Antonius: but such payment is a confession of weakness, and may derogate something from the dignity of the State which makes it.

XXIII. 1 The question of the Feudal Relation is more difficult; but it may be easily solved by what precedes. This contract is peculiar to the German nations, and is nowhere found except where the Germans have established themselves. In it two things are to be considered, the Personal Obligation, and the Right of Real Property.

2 The Personal Obligation is the same, whether any one [the Superior Lord] by the Feudal Law possesses the Right of Lordship, or any other Right, over a thing situated at a distance from him. As such an Obligation would not take away the Right of personal liberty [in the person subject to such command], so neither does it take away from a king or a people the Right of Sovereignty, which is civil liberty. This is most apparent in those Free Fiefs which are called Frank Fiefs, which consist solely in the Personal Obligation, without any Right to Real Property. For these are only a kind of unequal alliance, such as we have spoken of; in which one party promises to the other aid, [for instance, Military Service,] and the other party promises Protection and Guardianship. Even if the condition be aid promised [by the Vassal] against every other party, which is what is now called a Liege Fief, that does not detract anything from his [the Vassal’s] sovereignty; not to mention that there is always included a tacit condition, that the war be just; which we shall treat of elsewhere.

3 As to the Right of Real Property [belonging to the Feudal Vassal], that is doubtless such, that the Right of Lordship, if it be held in virtue of the Fief, may be lost by the extinction of the Tenant’s family, and also for certain crimes. But in the mean time it does not cease to be Sovereign; for, as we have repeatedly said, (§ xi. 1) we must distinguish between what a thing is, and the kind of possession of it. And we find that many kings were established by the Romans on that condition, that if their family failed, the authority should revert to the Romans; as in Paphlagonia.

XXIV. And thus in political authority, as in private property, we must distinguish Right from the use of Right; or [in the language of the Schoolmen] the actus primus from the actus secundus. A king who is an infant has the Right, but cannot exercise it; so one who is insane, captive, or who lives in the territory of another so that his 51actions with regard to the exercise of his remote kingdom are not freely done. In all these cases there are to be established Guardians or Regents. So Demetrius, when he was living under constraint in the power of Seleucus, forbad that credence should be given to his Seal or his Letters, and directed every thing to be administered as if he were dead.