[134] CHAPTER IX.

When Lordship and Ownership cease.

I. WE have sufficiently explained how both private ownership and public authority is acquired, and how it is transferred; let us now consider how it ceases.

That it ceases by derelict, is above shown in passing; because the will ceasing, the ownership does not remain. There is also another mode of its ending: the subject or person in whom the lordship or ownership resides being removed, that is, before alienation either express at least, or tacit, such as there is in successions to intestates. Wherefore if any person die without giving any indication of his will, and without leaving any relative, every right which he had perishes, and therefore his slaves (except some human law prevent it) will be free; the peoples who had been under his authority will be their own masters, because these things (slaves and governments) are not things which can be taken possession of by the first comer; but his other property may be so occupied.

II. The same which we have said of a person may be said of a Family which fails, and which had any rights.

III. 1 The same, if a People fails. Isocrates, and after him the Emperor Julian said, that states are immortal; that is, that they may be so; because a People is that kind of body which consists of separate elements, but is subject to one name, and has one habit, as Plutarch says, one spirit, as Paulus. This spirit or habit in a people is the full and perfect common participation of civil life; the first production of which is the sovereignty, the bond by which the State is held together, the vital breath drawn by so many thousands, as Seneca speaks. And these artificial bodies have plainly an analogy with natural bodies. A natural body does not cease to be the same, though the particles are gradually changed, the Form remaining the same, as Alphenus, after the philosophers, discourses.

2 And thus we can explain what Seneca says, that no one of us is 135the same in age which he was in youth, this being understood of the matter of which we consist; as Heraclitus said, according to the quotation of Plato in the Cratylus, and Seneca in the above cited place, that we cannot bathe twice in the same river: which Seneca rightly corrects, by saying the name of the river remains, the water passes. So Aristotle, comparing a river to a people, says, that rivers are called the same, though new water is constantly coming in, old water going out. Nor is it the empty name which remains; but that habit, which Conon defines as a habit holding the body together, and Philo, as a spiritual bond, and which the Latins also call the spirit of the thing. Thus a People, as Alphenus and Plutarch say, is reckoned the same now as it was a hundred years ago, though none of those who lived then is alive now, As long as that communion which makes a people and binds it together with mutual bonds preserves its unity, as Plutarch expresses it. And hence arises the mode of speaking, that when we address a people now existing, we attribute to it what happened to the same People several generations ago; as we may see both in the historians, and in the Scriptures. [See the passages.] So in Tacitus, Antonius Primus reminds the veterans of the Third Legion, that, Under M. Antonius, they had repelled the Parthians, under Corbulo, the Armenians.

3 It is therefore through spite, and not as speaking truly, that in the same Tacitus, Piso denies that the Athenians of his time are the Athenians, those being extinct by a succession of calamities; and says, that they are a mixture of the dregs of nations. For that accession of strangers had perhaps detracted something from the dignity of the people, but had not made it another people. Nor was he ignorant of this, since on those very Athenians of his time he charged the old faults which they had committed, their failures against the Macedonians, their violence against their own citizens.

But while the change of component parts does not make a people cease to be what it was, even for above a thousand years; it cannot be denied that a people may cease to be: and this may happen in two ways; by the destruction of the body, or by the departure of the form or spirit of which I have spoken.

IV. The body is destroyed, either by the simultaneous removal of the parts, without which the body cannot subsist, or by taking away their connexion as a body. To the former mode, you must refer peoples swept away by the sea, as the peoples of the island of Atlantis, of whom Plato speaks, and others whom Tertullian mentions. Also such as have been swallowed up by an earthquake or a chasm opened in the ground, of which there are examples in Seneca and Ammianus Marcellinus, and elsewhere: and those who voluntarily destroyed themselves, as the Sidonians and the Saguntines. Pliny says that fifty-three Peoples of ancient Latium perished, leaving no trace.

If, of such a people, so few survive that they cannot make a People, what are we to say? In that case, the ownership which the people had in the way of private persons may subsist; but not anything 136which belongs to a people as a people: and the same may be said of a College or Corporation.

V. The connexion of the parts of the body is taken away, if the citizens either break up their society spontaneously on account of pestilence or sedition; or be so distracted by force that they cannot come together; which happens sometimes in war.

VI. The form of a People is taken away, when the participation in common rights no longer subsists, either at all, or at least, perfectly: whether individuals are reduced into a state of personal slavery, as the Myceneans sold by the Argives, the Olynthians by Philip, the Thebans by Alexander, the Bruttians sentenced to slavery at public works by the Romans; or retaining their liberty^* are deprived of their political power. Thus Livy relates of Capua, that the Romans determined that it should be inhabited as a hamlet merely, with no municipal body, no senate, no assembly of the people, no magistrates; a collection of individuals without authority, among whom a judge sent from Rome should administer justice; and accordingly Cicero says, that there was no image of a State left at Capua. The same is to be said of peoples reduced into the form of a province, and of those who are brought under the authority of another people. Thus Byzantium was put under Perinthus by Severus, and Antiochia under Laodicea by Theodosius.

VII. If the People migrate from its place, either of its own will, on account of famine, or other calamity; or under compulsion, as the Carthaginian people in the third Punic war, if the form of which I have spoken remain, the people does not cease to be; still less, if the walls of the city only are thrown down. Therefore when the Lacedæmonians would have excluded the Messenians from being admitted among those who were to swear to the peace of Greece, because their city-walls were destroyed, the matter was decided against them by the common council of the allies.

VIII. 1 Nor does it make any difference how the people is governed, whether by the authority of a king, or that of a number, or that of the multitude. The Roman people was the same under kings, consuls, emperors. Even if the king govern with the most absolute power, the people will be the same which it was before, when it was its own master; provided the king is set over it as the head of that people, not as the head of another people. For the authority which is in the king as the head, is in the people as the whole body, of which the head is a part: and therefore when the king, if he be elective, or the king’s family, is extinct, the supreme authority reverts to the people, as we have shown above.

Nor is the objection from Aristotle valid; when he says that the form of the State being changed, the State is no longer the same; as, says he, the harmony is not the same when we modulate out of the Dorian mood into the Phrygian [though the notes may be the same].

137 2 For it is to be understood that an artificial thing may have several forms; thus, one form of a legion (or regiment) is its government by legati, tribuni, centuriones; (colonels, captains, serjeants, &c.): another form of the same body is its order of march or of battle. Thus one form of a State is the common participation of right and authority; and another is the relation of the parts governing and governed. The politician looks at the latter form, the jurist at the former: and Aristotle was aware of this, when he subjoins, Whether the name (of the State) is to be changed when the form of government is changed, is another inquiry: that is, it belongs to another science [Jus], which Aristotle does not confound with Political Science (Politica), that he may not commit the fault which he blames in others, of passing to another genus.

3 When a People has a king placed over it, it does not cease to owe the moneys which it owed being free: for it is the same people, and retains the ownership of the things which had belonged to the people; and also authority over itself, though this authority is not now to be exercised by the body, but by the head. And hence we see what answer is to be made to a controversy which sometimes arises from circumstances; In what place in a convention ought he to sit who has acquired the sovereignty over a people free before: as in the Amphictyonic council, Philip of Macedon had the place which the Phoceans had had. And so on the other hand, the place which had belonged to the king, shall be filled by the people, made free.

IX. If at any time two Peoples are united, their rights will not be lost, but imparted by each to the other; as the rights, first of the Sabines, and afterwards of the Albans, were imparted to the Romans, and they were made one republic, as Livy speaks. The same is to be conceived of kingdoms which are united, not by league, nor only because they have a common king, but joined by a real union.

X. It may happen, on the contrary, that what had been one State is divided, either by mutual consent, or by war; as the body of the Persian empire was divided among the successors of Alexander. When this happens, there are several sovereignties in the place of one, each having its rights over the separate parts. If there was anything which they had in common, that is either to be administered in common, or to be divided proportionally.

To this head also is to be referred the separation of a Colony from the mother-country. For in this case also there is produced a new people which is its own master: They are sent out not to be slaves, but to have equal rights, says Thucydides. And so he says that the second Colony was sent by the Corinthians to Epidamnus to have fair and equal rights. Tullus in Dionysius of Halicarnassus says, That the mother-country should govern her colonies, as a necessary law of nature, we do not think either true or just.

XI. 1 There is a very celebrated question among historians and 138jurists, To whom now belong the Rights which did belong to the Roman Empire?

Many hold that these rights belong to the German Kingdom, as it was formerly called, or the German Empire; (it makes no difference which name you adopt:) and they conceive that, in some way or other, one Empire was put in the place of the other. And yet it is well known that Great Germany, that is, Germany beyond the Rhine, was, for the greater part of the time, entirely without the circle of the Roman Empire. It appears to me that such a change or translation is not to be presumed, except it be proved by certain documents. I therefore hold that the Roman people is still the same people as formerly, before it received the admixture of strangers; and that the Roman Empire remained in it, as in the body in which it existed and lived. For what the Roman people had formerly a right to do, before the Emperors reigned, it had the right of doing the same, when one Emperor was dead, and another not yet created. And even the election of the Emperor belonged to the people; and was sometimes made by the people, by itself, or by the Senate. And the elections which were made by the Legions, sometimes by one and sometimes by another, were not valid by any rights which the Legions had; (for in so vague a name there could be no certain right;) but through the approbation of the people.

2 It does not make any objection to this view, that by a constitution of Antonine, all the inhabitants of the Roman Empire were made Roman citizens. For by that constitution, the subjects of the Roman Empire obtained those rights which the Colonies formerly had, and the Municipalities (Municipia,) and the Togate Provinces, (Provinciæ Togatæ;) namely, that they should participate in the honours of the state, and use the Roman Law (jus Quiritium;) but not that the source of Empire should be in other peoples, as it was in the people of the city of Rome; which to do, was not in the power of the Emperors, because they could not change the manner and cause of holding the imperial authority^*.

Nor did it detract any thing from the right of the Roman people, that the Emperors chose to live at Constantinople rather than Rome. It must be supposed that the election was made by that part of the Roman people which lived at Constantinople (whence Claudian calls the Byzantines Quirites,) and confirmed by the whole people. And the Roman people preserved no small monument of its right, in the prerogatives of the city, in the honour of the consulship, and in other things. And therefore all the right that those who lived at Con139stantinople had to elect the Roman Emperor, depended on the will of the People of Rome. And when the Byzantines had, contrary to the desire and practice of the Roman people, elected a woman, Irene, to the empire, to omit other reasons, the Roman people revoked that concession, express or tacit, and elected an emperor itself; and declared its election by the voice of its First Citizen, that is, its Bishop^*; (as in the Judaic republic before the kings existed, the High­-priest was the first person.)

3 This election was a personal election in the case of Charlemagne and some of his successors: who themselves carefully distinguished the right of authority which they had over the Franks and Lombards, from their right over the Romans, as obtained on new grounds. But afterwards, when the Frank people were divided into a western people, which now holds France, or Gallia, and an eastern, which holds Germany or Alemannia; and when the eastern Franks, (the Germans) had begun to elect kings, (for at that time the succession of Frankish kings was quasi agnatic, but depended more on popular suffrage than on certain right,) it was agreed by the people of Rome, in order that they might be sure of a protector, not to have a king of their own, but the king whom the Germans had elected: yet so that they might retain some power of confirming or annulling the election, so far as they were concerned.

4 This approbation was wont to be proclaimed by the Bishop, and solemnly celebrated by a special coronation, [that of King of the Romans.] Wherefore he who is elected by the Seven Princes who represent Germany, has authority to rule over the Germans according to their usages. But the same person is, by the approbation of the Roman people, made Roman Emperor, or King, or, as historians often speak, King of the kingdom of Italy. And by that title, he has under him whatever belonged to the people of Rome, and that has not passed under the authority of other peoples by compact, or by occupation of derelict, or by the right of conquest.

And hence we easily understand by what right the Bishop of Rome, during the vacancy of the Empire, gives the investitures of the fiefs of the Roman Empire; namely, because he is the first person in the Roman people, which at that time is free. For whatever 140office belongs to any body, is wont to be discharged by the first person of that body, as we have elsewhere said.

Nor is that unsound which Cynus and Raynerius have laid down, that if the Roman Emperor were prevented from discharging his office by disease or captivity, there might be a substitute for him appointed by the Roman People.

XII. That the person of the heir, as to the continuation both of public and private ownership, is to be conceived as the same with the person deceased, is undoubted law.

XIII. How far the Conqueror succeeds to the Conquered, will be explained below in speaking of the effects of war.