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The Final End of the Well-ordered Commonwealth [CHAPTER I]
A COMMONWEALTH may be defined as the rightly ordered government of a number of families, and of those things which are their common concern, by a sovereign power. We must start in this way with a definition because the final end of any subject must first be understood before the means of attaining it can profitably be considered, and the definition indicates what that end is. If then the definition is not exact and true, all that is deduced from it is valueless. One can, of course, have an accurate perception of the end, and yet lack the means to attain it, as has the indifferent archer who sees the bull's-eye but cannot hit it. With care and attention however he may come very near it, and provided he uses his best endeavours, he will not be without honour, even if he cannot find the exact centre of the target. But the man who does not comprehend the end, and cannot rightly define his subject, has no hope of finding the means of attaining it, any more than the man who shoots at random into the air can hope to hit the mark.
Let us consider more particularly the terms of this definition. We say in the first place right ordering to distinguish a commonwealth from a band of thieves or pirates. With them one should have neither intercourse, commerce, nor alliance. Care has always been taken in well-ordered commonwealths not to include robber-chiefs and their followers in any agreements in which honour is pledged, peace treated, war declared, offensive or defensive alliances agreed upon, frontiers defined, or the disputes of princes and sovereign lords submitted to arbitration, except under the pressure of an absolute necessity. Such desperate occasions however do not come within the bounds of normal conventions. The law has always distinguished robbers and pirates from those who are recognized to be enemies legitimately at war, in that they are members of some commonwealth founded upon that principle of justice that brigands and pirates seek to subvert. For this reason brigands cannot claim that the conventions of war, recognized by all peoples, should be observed in their case, nor are they entitled to those guarantees that the victors normally accord to the vanquished. ...
It is true that we see brigands living amicably and sociably together, sharing the spoil fairly among themselves. Nevertheless the terms amity, society, share cannot properly be used of such associations. They should rather be called conspiracies, robberies, and spoliations. Such associations lack that which is the true mark of a community, a rightly ordered government in accordance with the laws of nature. This is why the ancients define a commonwealth as a society of men gathered together for the good and happy life. This definition however falls short on the one hand, and goes beyond the mark on the other. It omits the three principal elements of a commonwealth, the family, sovereign power, and that which is of common concern, while the term 'happy', as they understood it, is not essential. If it were, the good life would depend on the wind always blowing fair, a conclusion no right-thinking man would agree to. A commonwealth can be well-ordered and yet stricken with poverty, abandoned by its friends, beset by its enemies, and brought low by every sort of misfortune. Cicero saw this happen to the city of Marseilles in Provence, yet he thought it the best-ordered and most civilized city, without exception, of any in the world. On the same showing the commonwealth that is well-situated, wealthy, populous, respected by its allies, feared by its enemies, invincible in war, impregnable, furnished with splendid buildings, and of great reputation, must be considered well-ordered, even if given over to every wickedness and abandoned to vicious habits. But there is surely no more fatal enemy to virtue than worldly success of this sort, fortunate as it is accounted to be, for they are contraries not to be reconciled. Therefore we do not include the term 'happy' as an essential term in our definition. We aim higher in our attempt to attain, or at least approximate, to the true image of a rightly ordered government. Not that we intend to describe a purely ideal and unrealizable commonwealth, such as that imagined by Plato, or Thomas More the Chancellor of England. We intend to confine ourselves as far as possible to those political forms that are practicable. We cannot therefore be blamed if we do not succeed in describing the state which is rightly ordered absolutely, any more than the pilot, blown out of his course by a storm, or the doctor defeated by a mortal disease, is to be blamed, provided he has managed his ship or his patient in the right way.
The conditions of true felicity are one and the same for the commonwealth and the individual. The sovereign good of the commonwealth in general, and of each of its citizens in particular lies in the intellective and contemplative virtues, for so wise men have determined. It is generally agreed that the ultimate purpose, and therefore sovereign good, of the individual, consists in the constant contemplation of things human, natural, and divine. If we admit that this is the principal purpose whose fulfilment means a happy life for the individual, we must also conclude that it is the goal and the condition of well-being in the commonwealth too. Men of the world and princes however have never accepted this, each measuring his own particular well-being by the number of his pleasures and satisfactions. Even those who have agreed that the sovereign good of the individual is contemplation, have not always agreed that the good of the individual and good of the commonwealth are identical, and that to be a good man is also to be a good citizen. For this reason there has always been a great variety of laws, customs, and policies attendant on the desires and passions of princes and governors. Since however the wise man is the measure of justice and of truth, and those reputed wise have always agreed that the end of the individual and the end of the commonwealth are one, without distinction of the good man and the good citizen, we also must conclude that contemplation is the end and form of the good to which the government of the commonwealth should be directed.
Aristotle was not always consistent in what he had to say on the subject. At times he compromised with the views of various people, coupling now riches, now power, now health, with virtue, in order to take into account commonly received opinions. But in moments of greatest insight he made contemplation the height of felicity. It may have been similar considerations which prompted Marcus Varro to say that human felicity springs from the union of action and contemplation. To my mind this is so, because whereas the well-being of a simple organism may be simple in character, that of a dual organism, composed of diverse elements, must itself be of a dual nature. The well-being of the body comes from health, strength, vigour, and the beauty of well-proportioned members. The well-being of the active principle of the soul, which is the link between body and soul, consists in the subordination of appetite to reason, in other words, the exercise of the moral virtues. The well-being of the intellective part of the soul lies in the intellectual virtues of prudence, knowledge, and faith. By the first we distinguish good and evil, by the second truth and falsehood, and by the third piety and impiety, and what is to be sought and what avoided. These are the sum of true wisdom, which is the highest felicity attainable in this world.
If one turns from the microcosm to the macrocosm, it follows by parity of argument that the commonwealth should have a territory which is large enough, and sufficiently fertile and well stocked, to feed and clothe its inhabitants. It should have a mild and equable climate, and an adequate supply of good water for health. If the geography of the country is not in itself its best defence, it should have sites capable of fortification against the danger of attack. These are the basic needs which are the first objects of concern in all commonwealths. These secured, one looks for such luxuries as minerals, medicinal plants, and dyes. Offensive weapons must also be provided if one would extend one's frontiers and subjugate the enemy, for the appetites of men being for the most part insatiable, they desire to secure great abundance not only of what is necessary and useful, but of what is pleasant merely, and redundant. But just as one does not think of educating a child until it is grown and capable of instruction, so commonwealths do not concern themselves with the moral and mental sciences, still less with philosophy, till they are amply furnished with all that they regard as necessities. They are contented to cultivate that modest degree of prudence which is sufficient for the defence of the state against its enemies, the prevention of disorders among its subjects, and the reparation of injuries.
A man of good disposition however who finds himself well provided with the necessities and comforts of life, secure and at peace, turns away from unworthy companions and seeks the society of wise and virtuous men. When he has purged his soul of troubling passions and desires, he is free to give his attention to observing his fellows, and interests himself in the difference that age and temperament makes between them, the causes of the greatness of some and the failure of others, and of the fluctuations of states. From men he turns to the contemplation of nature, and considers the great chain of being, minerals, plants, and animals in their hierarchical order, the forms, qualities, and virtues of all generated things, and their mutual attractions and repulsions. From the world of material things he moves forward to the contemplation of the immaterial world of the heavens, where the splendour, beauty, and power of the stars is manifested in their proud, remote, and majestic movements, comprehending the whole universe in a single harmony. The ecstasy of this vision inspires him with a perpetual longing to penetrate to the first cause and author of this perfect creation. But there he must pause, for the greatness, the power, the wisdom, and goodness of the Supreme Being, being infinite, must for ever remain inscrutable in its essence. By such a progression a wise and thoughtful man reaches the concept of the one infinite and eternal God, and thereby as it were attains the true felicity of mankind.
If such a man is adjudged both wise and happy, so also will be the commonwealth which has many such citizens, even though it be neither large nor rich, for in it the pomps and vanities of proud citizens, given over to pleasure, are contemned. But it must not be assumed from this account that felicity comes from a confusion of many elements. Man is made up of a mortal body and an immortal soul, but his final good pertains to the more noble part of himself... For though those activities such as eating and drinking by which life is supported are necessary, no thoughtful man finds in them his sovereign good. The habit of good deeds is of the first importance, for the soul that is not illumined and purified by the moral virtues cannot enjoy the fruits of contemplation. The moral virtues are therefore ordained to the intellectual. Felicity cannot be found in that imperfect state in which there is still some good yet to be realized; that which is less noble is ordained to that which is more noble as its final end, body to spirit, spirit to intellect, appetite to reason, living to right living. Therefore when Varro found felicity in both contemplation and action, he would have done better, in my opinion, to have said that a man has need of both action and contemplation in this life, but that bis sovereign good lies in contemplation. Nevertheless it is certain that a commonwealth is not rightly ordered which neglects altogether, or even for any length of time, mundane activities such as the administration of justice, the defence of the subject, the provision of the necessary means of subsistence, any more than a man whose soul is so absorbed in contemplation that he forgets to eat and drink can hope to live long. ...
The same principles hold good for the well-ordered commonwealth. It is ordained to the contemplative virtues as its final end, and those things which are least in order of dignity come first in order of necessity. Those material things necessary to the sustenance and defence of the subject must first be secured. Nevertheless such activities are ordained to moral activities, and moral activities to intellectual, or the contemplation of the noblest subjects within the scope of men's imaginations. Thus we see that God allotted six days for all those labours to which the greater part of man's life is dedicated. But He ordained that these labours should cease on the seventh day, and He blessed it above all other days as the holy day of rest, so that men might then have leisure to contemplate His works, His law, and His glory. Such is the final end of well-ordered commonwealths, and they are the more happy the more nearly they come to realizing it. For just as there are degrees of felicity among men, so are there among commonwealths, some greater, some less, in accordance with the end which each sets out to attain. It was said of the Spartans that they were courageous and magnanimous, but for the rest unjust and perfidious, if they could thereby further the public interest. The sole purpose of their laws, their customs, their institutions was to make men brave and indifferent to hardship and pain, contemptuous of ease and pleasure, and totally devoted to the state. The Roman Republic on the other hand was distinguished for its justice, and surpassed that of the Spartans, for its citizens were not only magnanimous, but justice was the mainspring of all their actions.
In treating of the commonwealth we must therefore try and find means whereby it may come as near as possible to realizing the felicity we have described, and conforming to the definition we have postulated. Let us continue with the terms of the definition and pass on to the family.
Concerning the Family [CHAPTERS II-V]
A FAMILY may be defined as the right ordering of a group of persons owing obedience to a head of a household, and of those interests which are his proper concern. The second term of our definition of the commonwealth refers to the family because it is not only the true source and origin of the commonwealth, but also its principal constituent. Xenophon and Aristotle divorced economy or household management from police or disciplinary power, without good reason to my mind ... I understand by domestic government the right ordering of family matters, together with the authority which the head of the family has over his dependants, and the obedience due from them to him, things which Aristotle and Xenophon neglect. Thus the well-ordered family is a true image of the commonwealth, and domestic comparable with sovereign authority. It follows that the household is the model of right order in the commonwealth. And just as the whole body enjoys health when every particular member performs its proper function, so all will be well with the commonwealth when families are properly regulated.
We have said that a commonwealth is the rightly ordered government of a number of families and of those matters which are their common concern, by a sovereign power. The phrase a number cannot mean just two, for the law requires at least three persons to constitute a college, and the same number to constitute a family in addition to its head, whether they be his children, slaves, freedmen, or free dependants who have voluntarily submitted to his authority. He is the fourth member of the group. Furthermore, since households, colleges and corporate bodies of all sorts, commonwealths, and indeed the whole human race would perish unless perpetuated from generation to generation, no family is complete without the wife, who is therefore called the mother of the family. By this reckoning, a minimum of five persons is required to constitute a family. I think this is the reason why ancient writers, such as Apuleius, said that fifteen persons could become a political community, meaning by that three complete households. Otherwise, even if the head of the family had three hundred wives and six hundred children, like Hermotinus, King of Parthia, or five hundred slaves like Crassus, if all these persons were a single household under the authority of a single head, they would not constitute either a political community or a commonwealth, but only a family. ...
The law says that the people never dies, but that after the lapse of a hundred or even a thousand years it is still the same people. The presumption is that although all individuals alive at any one moment will be dead a century later, the people is immortal by succession of persons, as was Theseus' ship which lasted as long as pains were taken to repair it. But a ship is no more than a load of timber unless there is a keel to hold together the ribs, the prow, the poop and the tiller. Similarly a commonwealth without sovereign power to unite all its several members, whether families, colleges, or corporate bodies, is not a true commonwealth. It is neither the town nor its inhabitants that makes a city state, but their union under a sovereign ruler, even if they are only three households. Just as the mouse is as much numbered among animals as is the elephant, so the rightly ordered government of only three households, provided they are subject to a sovereign authority, is just as much a commonwealth as a great empire. The principality of Ragusa, which is one of the smallest in Europe, is no less a commonwealth than the empires of the Turks and the Tartars, which are among the greatest in the world. ...
But besides sovereign power there must also be something enjoyed in common such as the public domain, a public treasury, the buildings used by the whole community, the roads, walls, squares, churches, and markets, as well as the usages, laws, customs, courts, penalties, and rewards which are either shared in common or of public concern. There is no commonwealth where there is no common interest... It is not desirable however that all things, including women and children, should be possessed in common as Plato advocated in his Republic. His intention was to banish from the city the words 'mine' and 'thine', since he thought them the cause of all the misfortunes and disasters that befall commonwealths. He forgot that even if this could be achieved, then the peculiar mark of a commonwealth would be lost. For nothing could properly be regarded as public if there were nothing at all to distinguish it from what was private. Nothing can be thought of as shared in common, except by contrast with what is privately owned. If all citizens were kings there would be no king. There can be no harmony if the subtle combination of various chords, which is the charm of harmony, is reduced to a monotone. Moreover such a commonwealth would be directly contrary to the law of God and of nature, for that law not only condemns the incests, adulteries, and parricides which would be the inevitable consequence of women being possessed in common, but forbids theft, or even the mere coveting of that which is the private possession of another. We see therefore that commonwealths were ordained of God to the end that men should render to the community that which is required in the public interest, and to each individual that which is proper to him. ...
It is of course possible for all the subjects of a commonwealth to live in common, as did the Cretans and the Spartans in ancient times... or as the Anabaptists attempted to do when they founded their community in the city of Münster. They ruled that all things should be possessed in common save only women and personal belongings, thinking this would promote amity and mutual concord. They soon discovered their mistake however. So far from accomplishing what they expected, and banishing quarrels and animosities, they destroyed affection between husband and wife, and the love of parents for their children, the reverence of children for their parents, and the goodwill of parents towards one another. Such are the consequences of ignoring the tie of blood, the strongest bond there is. It is common knowledge that no one feels any very strong affection for that which is common to all. Common possession brings in its train all sorts of quarrels and antagonisms. They deceive themselves who think that persons and property possessed in common will be much cared for, for it may be observed everywhere, that those things which are public property are habitually neglected, unless someone calculates that he may extract some private advantage from looking after them. The proper organization of the household requires the separation and distinction of the goods, the women, the children, and servants, of one family from another, and that which pertains to each from that which is common to all, or in other words pertains to the public good. ...
So much for the difference and the resemblance that there is between the family and the commonwealth in general. Let us now consider the members of the family. The government of all commonwealths, colleges, corporate bodies, or households whatsoever, rests on the right to command on one side, and the obligation to obey on the other, which arises when the natural liberty which each man has to live as he chooses, is exercised subject to the power of another. The right to command another is either of a public or a private character; public when vested in a sovereign who declares the law, or in the magistrate who executes it, and issues orders binding on his subordinates and private citizens generally; private when vested in heads of households, or in the collective authority which colleges and corporate bodies exercise over their particular members, or the minority of the whole body. Authority in the family rests on the fourfold relationship between husband and wife, father and child, master and servant, owner and slave. And since the rightful government of any society, public or private, depends on a proper understanding of how to command and how to obey, we will consider the household in the order described.
We understand by natural liberty the right under God to be subject to no man living and amenable only to those commands which are self-imposed, that is to say the commands of right reason conformable to the will of God. The first of all commandments was the commandment to subordinate animal appetite to reason, for before a man can govern others he must learn to govern himself, surrendering to reason the power of direction, and schooling the appetites to obedience. In this way each man will achieve that which truly pertains to his nature, which is the original and purest form of justice. The Hebrews expressed this proverbially in their saying 'Charity begins at home', meaning that one should subordinate appetite to reason in accordance with the first express commandment of God, laid upon him who killed his brother. The commandment that He had given the husband to rule over his wife has a double significance, first in the literal sense of marital authority, and second in the moral sense of the soul over the body, and the reason over concupiscence, which the Scriptures always identify with the woman. ...
From the moment a marriage is consummated the woman is subject to her husband, unless he is still living as a dependant in his father's house. Neither slaves nor other dependants have any authority over their wives, still less over their children. They are all subject to the head of the family until such time as he shall have given his married son his independence. No household can have more than one head, one master, one seigneur. If there were more than one head there would be a conflict of command and incessant family disturbances... wherefore a woman marrying a man still living in his father's house is subject to her father-in-law. ...
By a law of Romulus the husband was not only given full authority over his wife but could without any formal process of law take her life on four occasions, when she was taken in adultery, for substituting a child not his own, for having duplicate keys, or for being habitually drunk ... In order to show how general among all people has been this subjection of women, I will add two or three examples. We read that by the laws of the Lombards wives were held in the same subjection as had been customary among the ancient Romans, and their husbands had a power of life and death over them that they were still exercising when Baldus was writing, only two hundred and sixty years ago. As for our ancestors, the Gauls, nowhere in the world have husbands enjoyed a more absolute power than among them. Caesar makes this clear in his Memoirs when he says that they had the same absolute power of life and death over their wives and children as over their slaves. ...
With regard to divorce, the law of God permitted the husband to repudiate his wife, if she did not please him, on condition that he never took her back, but married another. This was at one time a custom common to all peoples, and is still practised in Africa and throughout the East. It was a means of humbling proud wives, while the knowledge that he had repudiated one wife without sufficient provocation made it difficult for an exacting husband to find another. If it is objected that it does not seem right that a man should be able to repudiate his wife without giving any reason, I appeal to the common usage in the matter. There is nothing more ill-advised than to compel two people to go on living together unless they are willing to publish the reason for the separation that they desire. The honour of both parties is at stake, whereas it is safeguarded if no reason has to be alleged. ...
However great the variety, and subsequent changes in law, it has never been customary anywhere to exempt wives from the obedience, and even the reverence which they owe their husbands ... Therefore in all systems of law the husband is regarded as the master of his wife's actions, and entitled to the usufruct of any property she may have, while the wife cannot come into the courts either as plaintiff or defendant save with the consent of her husband, or should he withhold it, the permission of the magistrate. The power, authority, and command that a husband has over his wife is allowed by both divine and positive law to be honourable and right. I know that in marriage alliances and settlements clauses are sometimes included exempting the wife from subjection to her husband. But such stipulations cannot detract from the authority of the husband, for they are contrary to both divine and positive law, as well as to the public interest. They are therefore invalid, and oaths to observe them cannot in consequence bind the husband.
The rightly ordered government of a father over his children lies first in the proper exercise of that power which God gives to a father over his natural children, and the law over his adopted ones, and second in the obedience, love, and reverence that children owe their father. Authority properly belongs to all those who have recognized power to command another. So, says Seneca, the prince commands his subjects, the magistrate the citizens, the master his pupils, the captain his soldiers, and the lord his slaves. But of all these there is none that has a natural right to command save only the father, who is the image of Almighty God, the Father of all things. Therefore Plato, having first defined the laws which touch the honour of God, speaks of them as an introduction to the reverence that a son owes his father, from whom, after God, he draws his life and all he may expect to enjoy in this world. And just as nature impels the father to foster his child so long as he is defenceless, and educate him in honourable and virtuous principles, so the child is prompted, and by an even stronger impulse, to love, honour, serve, and care for his father, to be obedient to his commands, support him, protect him, conceal all his infirmities and imperfections, and to spare neither goods nor life to preserve the life of him from whom he draws his own. This obligation is obvious, and founded in nature. But if one wishes further proof, one has only to remember that it was the first commandment in the second table of the law, and the only one of the ten commandments of the Decalogue that carried with it any promise of reward, for it is not usual to reward one who simply does that which he is under a strict obligation to do by both divine and positive law. Conversely we find the first curse recorded in Scripture was the curse laid on Ham for not concealing his father's shame. ...
In any rightly ordered commonwealth, that power of life and death over their children which belongs to them under the law of God and of nature, should be restored to parents. This most primitive of customs was observed in ancient times by the Persians, and people of Asia generally, by the Romans and the Celts; it was also recognized throughout the New World till the time of the Spanish conquests. If this power is not restored, there is no hope of any restoration of good morals, honour, virtue, or the ancient splendour of commonwealths. Justinian and those who have repeated him are wrong in saying that the Romans alone recognized such power of parents over their children. We have the testimony of the law of God which ought to be regarded as holy and inviolate by all peoples. We also have the evidence of Greek and Roman historians such as Caesar, of the customs of the Persians, the Romans, and the Celts. He said of the Gauls that they had power of life and death as much over their wives and children as over their slaves. Moreover by the laws of Romulus, whereas the power of life and death which a husband had over his wife was restricted to four occasions only, that which he had over his children was unqualified, being a plenary power to dispense life or death to them as he thought fit, and to be seized of all property which they might acquire. Roman fathers had such authority not only over their natural children, but also over their children by adoption. ...
A father is bound to educate and instruct his children, especially in the fear of God. But if he fails of his duty, the son is not excused his, though Solon in his laws acquitted children from the obligation of supporting their father if he had failed to apprentice them to some trade by which they could earn a living. There is no need to enter into any discussion of this particular point since we are only concerned here with the question of paternal authority. One of the greatest benefits which resulted from it in ancient times was the proper upbringing of children. Public courts do not take cognizance of the contempt, disobedience, and irreverence of children towards their parents, nor the vices to which their indiscipline disposes the young, such vices as extravagance, drunkenness, fornication, and gambling, not to mention those graver crimes punishable by law, which their unhappy parents neither dare to discover, nor have the power to punish. For children who stand in little awe of their parents, and have even less fear of the wrath of God, readily set at defiance the authority of magistrates, who in any case are chiefly occupied with the habitual criminal. It is therefore impossible that a commonwealth should prosper while the families which are its foundation are ill-regulated. ...
Yet paternal power was gradually undermined in the time of the decline of the Roman Empire. The antique virtue thereupon vanished and with it the glory of the Republic, and a million vices and evil habits replaced the old loyalty and upright ways. For the paternal power of life and death was gradually restricted by the ambition of the magistrates, who wished to extend their own jurisdiction over all such matters ... Nowadays, fathers having been deprived of their paternal authority, and any claim to property acquired by their children, it is even suggested that the son can defend himself and resist by force any unjust attempt at coercion on the part of his father, and there are those that agree that he can ... But I hold that it is imperative that princes and legislators should revive the ancient laws touching the power of fathers over their children, and restore the usages prescribed by the law of God. ...
It may be objected that an enraged father may abuse the power which he has over the life and property of his children. The law however puts those who are truly mad under ward, and takes from them any power over others when they do not possess it over themselves. But if a father is not out of his mind, he will never be tempted to kill his own child without cause, and if the son has merited such a fate, it is not for the magistrate to intervene. The affection of parents for their children is so strong, that the law has always rightly presumed that they will only do those things which are of benefit and honour to their children. The real danger lies in the temptation of parents to be too partial. Indeed there are innumerable cases of parents setting at defiance both divine and positive law in order to advance the interests of their children by fair means or foul. Therefore the father who kills his son is not liable to the same penalty as the parricide, for the law presumes he would only commit such an act upon good and just grounds. The law moreover gives him, to the exclusion of all others, the right to kill the adulteress, or his daughter taken in sin. All these instances show that parents are not suspected of being liable to abuse their authority. Even if it be true that there have been cases where such powers have been misused, one cannot refuse to establish a good custom because certain ill consequences might occasionally ensue. No law, however just, natural, and necessary, but carries with it some risks. Anyone who wished to abolish all those laws which were liable to give rise to difficulties would abolish all laws whatsoever. But I hold that the natural affection of parents for their children is incompatible with cruelty and abuse of power. ...
The third type of government in the household is that of the lord over his slaves and the master over his servants ... And seeing that there are slaves all over the world except in that quarter which is Europe, we must necessarily consider the power of masters over their slaves, and the advantages and disadvantages of the institution. It is a matter of moment both to families and to commonwealths everywhere.
Slaves are either naturally so, being born of slave women, or slaves by right of conquest, or in punishment for some crime, or because they have sold or gambled away their liberty to another ... Household servants are in no sense slaves but free men, and both before the law, and in fact, have an equal liberty of action. All the same they are not simply paid employees or day labourers over whom those who have hired their services have no such authority or right of punishment as the master has over his servants. For so long as they are members of their master's household they owe him service, respect, and obedience, and he can correct and punish them, though with discretion and moderation. Such briefly is the power of masters over their servants, for we do not want here to enter into any discussion of the rules which should govern the conduct proper on each side.
But the institution of slavery raises difficulties which have never been satisfactorily resolved. First of all, is slavery natural and useful, or contrary to nature? And second, what power should the master have over the slave? Aristotle was of opinion that servitude was natural, and alleged as proof that it is obvious that some are born fit only to serve and obey, others to govern and command. On the other hand jurists, who are less concerned with philosophical arguments than with commonly received opinions, hold that servitude is directly contrary to nature, and have always done what they could to defend personal liberty, despite the obscurity of laws, testaments, legal decisions, and contracts. ...
Let us consider which of these two opinions is the better founded. There is a certain plausibility in the argument that slavery is natural and useful to the commonwealth. That which is contrary to nature cannot endure, and despite any force and violence that one can use, the natural order will always re-establish itself, as is clear from the behaviour of all natural agents. Slavery appeared suddenly in the world after the flood, and at the very same time that the first commonwealths began to take shape, and has persisted from that day to this. Although in the last three or four hundred years it has been abolished in many places, one continually sees it reappearing in some form. For instance in the West Indies, which are three times as extensive as the whole of Europe, people who have no knowledge of divine and positive laws to the contrary, have always had great numbers of slaves. There is not a commonwealth to be found anywhere that has never known the institution, and wise and good men in all ages have owned and employed slaves. What is more, in all commonwealths the master is always recognized as having absolute power to dispose of the lives and belongings of his slaves as he thinks fit, save in a few cases where princes and lawgivers have restricted this power. It cannot be that so many rulers and legislators have upheld an institution which was unnatural, or so many wise and virtuous men approved of them for doing so, or so many peoples for so many centuries maintained the practice of slavery, and even restricted the right of manumission, and still prospered in peace and war, if it had been against nature.
Again, who would deny that it is laudible and charitable to spare the life of a prisoner taken in legitimate warfare who cannot find a ransom, instead of killing him in cold blood, for this was generally the origin of enslavement. Moreover a man is required by divine and positive law to submit to corporal punishment if he cannot pay the forfeit for any act he has committed. No one doubts that those who make violent assaults upon the goods and lives of others are brigands and robbers, deserving of death. It cannot be against nature in such a case to exact services from the malefactor instead of killing him. If it were against nature to have power of life and death over another, all kingdoms and lordships in the world would be against nature, seeing that kings and princes have the like power over their subjects, noble and simple, if they are proved guilty of a capital crime.
All these arguments tend to prove that slavery is natural, useful, and right. I think however that strong objections can be urged against them all. I agree that servitude is natural where the strong, brutal, rich, and ignorant obey the wise, prudent, and humble, poor though they may be. But no one would deny that to subject wise men to fools, the well-informed to the ignorant, saints to sinners is against nature ... One sees in fact how often quiet and peaceable men are the prey of evildoers. When princes attempt to settle their differences by war, it is always claimed that the victor had right on his side, and the vanquished were in the wrong. If the vanquished did indeed make war without just cause, as do brigands, ought one not rather to make an example of them and put them to death, than to show them mercy? As for the argument that slavery could not have been so enduring if it had been contrary to nature, I would answer that the principle holds good for natural agents whose property it is to obey of necessity the unchanging laws of God. But man, being given the choice between good and evil, inclines for the most part to that which is forbidden, and chooses the evil, defying the laws of God and of nature. So much is such a one under the domination of his corrupt imagination, that he takes his own will for the law. There is no sort of impiety or wickedness which in this way has not come to be accounted virtuous and good. I will be content with one instance. It is sufficiently obvious that there can be no more cruel and detestable practice than human sacrifice. Yet there is hardly a people which has not practised it, and each and all have done so for centuries under the cover of piety. In our own times it was common throughout the Western Isles... Such things show how little the laws of nature can be deduced from the practices of men, however inveterate, and one cannot on these grounds accept slavery as natural. Again, what charity is there in sparing captives in order to derive some profit or advantage from them as if they were cattle? For where is the man who would spare the lives of the vanquished if he saw more profit in killing than in sparing them? ...
I will refrain from setting down in words the base humiliations that slaves have been made to suffer. But the cruelties one reads about are unbelievable, and yet only the thousandth part has been told. For writers only refer to the subject incidentally, and such accounts as we have, come from the most civilized races in the world. Slaves were made to work in the fields chained, as they still do in Barbary, and sleep in the open when work was done, as they still do everywhere in the East, for fear that they would abscond, or fire the house, or murder their masters ... So much have cities and commonwealths always feared their slaves that they have never dared to permit them the use of arms, or to be enrolled for service. It was forbidden on pain of death... Yet they never succeeded so well but that some desperate man, by promising liberty to the slaves, threw the whole state into confusion, as did Viriat the pirate who made himself King of Portugal, Cinna, Spartacus, and others down to Simon Gerson the Jew. All these raised themselves from humble origins to be powerful rulers simply by enfranchising the slaves who joined them. ...
Since the Christian religion was established however the number of slaves has diminished. The process was hastened by the publication of the law of Mahomet, which enfranchised all who professed that faith. By the year 1200 slavery had been abolished nearly everywhere save in the West Indies, where great numbers were found at the time of their discovery... It may be objected that if the Mohammedans really enfranchised their co-religionists, who cover the whole of Asia, the greater part of Africa and even a considerable area of Europe, and the Christians have done the same, how come there to be still so many slaves in the world? For the Jews by the terms of their law may not make slaves of their own people either, nor yet of Christians if they live in a Christian country, still less of Mohammedans among whom they are chiefly settled. The answer is that those who profess all these three religions only partially observe the law of God with regard to slaves, for by the law of God it is forbidden to make any man a slave except with his own entire good will and consent... Seeing that the experience of four thousand years has shown us the insurrections, the civil commotions, the disasters and revolutions that commonwealths have suffered at the hands of slaves, and the homicides, the cruelties and barbarities inflicted on slaves by their masters, it was an unmitigated catastrophe that the institution was ever introduced, and then, that once it had been declared abolished, it should ever have been allowed to persist.
Concerning the Citizen [CHAPTERS VI AND VII]
...WHEN the head of the family leaves the household over which he presides and joins with other heads of families in order to treat of those things which are of common interest, he ceases to be a lord and master, and becomes an equal and associate with the rest. He sets aside his private concerns to attend to public affairs. In so doing he ceases to be a master and becomes a citizen, and a citizen may be denned as a free subject dependent on the authority of another.
Before such things as cities and citizens, or any form of commonwealth whatsoever, were known among men, each head of a family was sovereign in his household, having power of life and death over his wife and children. But force, violence, ambition, avarice, and the passion for vengeance, armed men against one another. The result of the ensuing conflicts was to give victory to some, and to reduce the rest to slavery. Moreover the man who had been chosen captain and leader by the victors, under whose command success had been won, retained authority over his followers, who became his loyal and faithful adherents, and imposed it on the others, who became his slaves. Thus was lost the full and entire liberty of each man to live according to his own free will, without subjection to anyone. It was completely lost to the vanquished and converted into unmitigated servitude; it was qualified in the case of the victors in that they now rendered obedience to a sovereign leader. Anyone who did not wish to abandon part of his liberty, and live under the laws and commands of another, lost it altogether. Thus the words, hitherto unknown, of master and servant, ruler and subject, came into use.
Reason and common sense alike point to the conclusion that the origin and foundation of commonwealths was in force and violence. If this is not enough, it can be shown on the testimony of such historians as Thucydides, Plutarch, Caesar, and even by the laws of Solon, that the first generations of men were unacquainted with the sentiments of honour, and their highest endeavour was to kill, torture, rob, and enslave their fellows. So says Plutarch. We also have the evidence of sacred history, where it is said that Nimrod, the youngest son of Ham, was the first to subject his followers by force and violence. Wherefore he was called the mighty hunter, which to the Hebrews suggests the robber and despoiler. Demosthenes, Aristotle, and Cicero laboured under a misapprehension in repeating the error of Herodotus, who held that the first kings were chosen for their justice and their virtue, in what were believed to be heroic times. I have rebutted this view elsewhere on the grounds that in the first commonwealths, and for a long time after Abraham, there were innumerable slaves, as indeed was also found to be the case in the West Indies. This could hardly be unless there had been some violent forcing of the laws of nature. ...
Such being the origin of commonwealths, it is clear why a citizen is to be defined as a free subject who is dependent on the sovereignty of another. I use the term free subject, because although a slave is as much, or more, subject to the commonwealth as is his lord, it has always been a matter of common agreement that the slave is not a citizen, and in law has no personality. This is not the case with women and children, who are free of any servile dependence, though their rights and liberties, especially their power of disposing of property, is limited by the domestic authority of the head of the household. We can say then that every citizen is a subject since his liberty is limited by the sovereign power to which he owes obedience. We cannot say that every subject is a citizen. This is clear from the case of slaves. The same applies to aliens. Being subject to the authority of another, they have no part in the rights and privileges of the community. ...
Just as slaves can be slaves either by birth or by convention, so citizens can be either natural or naturalized. The natural citizen is the free subject who is a native of the commonwealth, in that both, or one or other of his parents, was born there... The naturalized citizen is one who makes a voluntary submission to the sovereign authority of another, and is accepted by him as Us subject. An honorary citizen who has been granted certain privileges such as civic rights, either as the reward of merit, or an act of grace and favour, is not properly a citizen because he does not thereby become a subject. The whole body of the citizens, whether citizens by birth, by adoption or by enfranchisement (for these are the three ways in which citizen rights are acquired) when subjected to the single sovereign power of one or more rulers, constitutes a commonwealth, even if there is diversity of laws, language, customs, religion, and race. If all the citizens are subject to a single uniform system of laws and customs they form not only a commonwealth but a commune, even though they be dispersed in divers townships, villages, or the open countryside. The town is not the commune, as some have held, any more than the house is the household, for dependants and children can live in widely separated places, yet still form a household, if they are subject to a single head of the family. The same applies to the commune. It can consist of a number of townships and villages, provided they share the same customs, as is the case with the bailliwicks of this realm. Similarly the commonwealth can include a number of communes and provinces which all have different customs. But so long as they are subject to the authority of a single sovereign, and the laws and ordinances made by it, they constitute a commonwealth. ...
It is a very grave error to suppose that no one is a citizen unless he is eligible for public office, and has a voice in the popular estates, either in a judicial or deliberative capacity. This is Aristotle's view. Later he corrects himself when he observes that it only applies to popular states. But he himself said in another place that a definition is valueless unless it is of universal application ... Plutarch improved on this description when he said that citizenship implied a right to a share in the rights and privileges of a city-state, implying that he meant such a share as accorded with the standing of each, nobles, commoners, women, and children too, according to the differences of age, sex, and condition ... It must however be emphasized that it is not the rights and privileges which he enjoys which makes a man a citizen, but the mutual obligation between subject and sovereign, by which, in return for the faith and obedience rendered to him, the sovereign must do justice and give counsel, assistance, encouragement, and protection to the subject. He does not owe this to aliens... Moreover, although a man can be a slave of more than one master, or a vassal of more than one lord provided they all hold of the same overlord, a citizen cannot be the subject of more than one sovereign, unless they are both members of a federated state. For princes are not subject to any jurisdiction which delimits their claims over their subjects, as are lords and masters in respect of their vassals and slaves. Neglect of this principle is the reason why there are so frequently frontier wars between neighbouring princes. Each claims the population of the march country as his own. These latter recognize one or other disputant as it suits them, or escape dependence on either, and in consequence are invaded and pillaged by both sides equally. ...
It is a generally accepted principle of public right that mere change of domicile from one country to another does not deprive the subject of his citizen rights, nor his prince of his sovereign authority over him. The case is parallel to that of the vassal who under feudal custom cannot escape the faith he owes his lord, any more than his lord can excuse himself from the obligation to protect his vassal, unless there has been agreement between them to this effect, seeing that the obligation is mutual and reciprocal. But if both parties have expressly or tacitly consented, and the prince has suffered his subject to renounce his subjection and submit to another, then the subject is no longer bound in obedience to his former sovereign ... In order then to acquire full rights of citizenship, it is not sufficient to have been domiciled for the statutary period. Letters of naturalization must also have been asked for and obtained. A settlement cannot be made on anyone unless the benefactor has offered, and the beneficiary duly accepted, the gift offered. Similarly an alien does not become a citizen, nor the subject of a foreign prince, until he has been received as such by that prince, but remains the subject of his natural prince. The same is the case if he has asked for admission to citizenship and been refused. ...
It is therefore the submission and obedience of a free subject to his prince, and the tuition, protection, and jurisdiction exercised by the prince over his subject that makes the citizen. This is the essential distinction between the citizen and the foreigner. All other differences are accidental and circumstantial, though it is an almost universal rule in commonwealths that all or certain offices and benefices should be open only to citizens, and aliens debarred from them altogether. ...
As for the differences that distinguish different classes of subjects from each other, they are almost as numerous as those which distinguish citizens from aliens, taking all places into account. I have referred to some, the difference between noble and commoner, adults and children, men and women. There are also distinctions of persons before the law, some being exempt from the taxes, charges, and impositions that others are subject to. In nearly every state in Europe citizens are divided into the three orders of nobles, clergy, and people. In addition to this general division there are special arrangements in certain commonwealths such as the division into gentlemen, citizens, and proletariat in Venice ... Even Plato, although he intended all his citizens to enjoy an equality of rights and privileges, divided them into the three orders of guardians, soldiers, and labourers. All this goes to show that there never was a commonwealth, real or imaginary, even if conceived in the most popular terms, where citizens were in truth equal in all rights and privileges. Some always have more, some less than the rest.
So much for the meaning of the terms subject, citizen, and alien. Let us now consider allies, especially those under protection, for no one who has written about the commonwealth has considered this subject, important as it is for all governments. The term protection can be applied in a general sense to all subjects owing obedience to a sovereign lord or prince. As we have already shown, the prince is obliged to safeguard the persons, possessions, and families of his subjects, by force of arms, and by force of law, while his subjects are under a reciprocal obligation to give their prince loyal and obedient service. This is the first and most effective form of protection there is. The rights of protection that masters have over their slaves, patrons over their freedmen, and lords over their vassals are much inferior. The slave, freedman, vassal, it is true, owes faith, homage, and service to his lord, but subject to the prior claims of his sovereign prince, whose liege man he is. In the same way the soldier owes obedience and assistance to his captain, and merits death if he does not guard his life at the risk of his own.
But in treaties between sovereign princes the word protection is used in a special sense, implying neither subjection on the part of the one who is protected, nor right to command in the one who protects. The latter can only claim honour and reverence from those whose defence he has undertaken; their sovereignty is in no way diminished by the relationship, nor has he any authority over them. This particular right of protection is therefore the best, the most honourable and dignified of all rights. Sovereign princes, masters, patrons, and overlords exact obedience and derive some profit from the defence of their subjects, slaves, freedmen, or vassals as the case may be. But the simple protector is satisfied with the mere honour and gratitude of his protégés. If he takes any profit it is not, properly speaking, simple protection that he gives. If anyone lends any of his belongings to another, or assists him by good offices on his behalf, but sees he makes a profit in so doing, he is no better than a mercenary who hires out his services for gain. In the same way if anyone freely promises assistance to another, he is obliged to redeem his promise without expecting any reward for so doing. There is no promise more binding than the undertaking to defend the goods, the life, and the honour of the weak against the strong, the poor against the rich, or the innocent threatened by the violence of wicked men. ...
Protégés are sometimes called clients, and protectors patrons, because of a similarity in the two relationships. But it is the difference between them that is more important. The freedman owes services to his patron and can be reduced to servitude again if he fails in his obligations. But the protégé owes no services, and cannot be deprived of his liberty however ingrate he may be. The freedman must leave a proportion of his goods to his patron should he predecease him. The protégé owes nothing of his inheritance to his protector. Again the vassal also resembles the protégé to such an extent that some have confused the two. But again, the difference between them is more significant than the resemblance. The vassal owes faith, homage, and honour to his lord. If he commits a felony, renounces his allegiance, or refuses the services due to his lord he loses his fief, which then reverts to his lord by right of escheat. The protégé, holding no fief, has no such penalty to fear. Furthermore if the vassal is his lord's liege man, he is also his natural subject, and owes him not only faith and homage but submission and obedience, and cannot escape from the authority of his sovereign lord without his consent, even should he have been deprived of his fief. The protégé bears no such relationship to his protector, and is not subject to him. ...
But in the case of the sovereign prince who puts himself under the protection of another, does he lose his sovereign authority thereby and become a subject? It would seem that if he recognizes a greater than himself, he is no longer sovereign. Nevertheless I hold that he does remain a sovereign, and in no sense becomes a subject. The point is settled by a passage in the civil law which is unique. There are various readings of it, but I follow the original of the Pandects at Florence, where it is said that in treaties of alliance between sovereign princes, those that put themselves under the protection of one greater than themselves do not become his subjects. Even when, in treaties of an unequal alliance, it is expressly stated that one of the parties will defend the authority of the other, this does not make the latter the subject of the former. Our protégés and clients are as free as we are ourselves, even though they may not be our equals in wealth, in power, or in honour. ...
Here someone may ask why allies bound together by an offensive and defensive alliance against all outsiders without exception, who share the same laws, customs, estates, and diets, should treat one another as foreigners. We have the example of the Swiss who have been leagued together in this way ever since 1315. I hold that such an alliance does not prevent its members remaining foreigners to one another, nor make them citizens of one another's countries... Many have made the mistake of thinking that the Swiss are members of a single commonwealth ... The Confederates and their allies altogether consist of twenty-one republics in all, besides the Abbot of St. Gall who is a prince-bishop. Each Confederate state is a sovereign power with its own distinct magistrates, distinct estates, distinct revenues, distinct domain, distinct territory. The army, the emblem, the name, the coinage, the seal, the jurisdiction, the ordinances of each are separate from those of all the rest. If one of the cantons makes any conquest, the others have no share in it... The fact that there are common estates, a common domain, and general diets, and the fact that they acknowledge the same friends and enemies does not make them one state, even though they have a common treasury derived from certain taxes, for they do not recognize any sovereign power of making law for each and all of their subjects. In like case if a number of heads of families joined together to administer all their property in common, they would not make a single family. We regard the alliances made by the Romans with the other cities of Italy in the same way. They formed an offensive and defensive league against all without exception. Nevertheless they all remained distinct and sovereign states. ...
Concerning Sovereignty [CHAPTER VIII]
SOVEREIGNTY is that absolute and perpetual power vested in a commonwealth which in Latin is termed majestas ... The term needs careful definition, because although it is the distinguishing mark of a commonwealth, and an understanding of its nature fundamental to any treatment of politics, no jurist or political philosopher has in fact attempted to define it. ...
I have described it as perpetual because one can give absolute power to a person or group of persons for a period of time, but that time expired they become subjects once more. Therefore even while they enjoy power, they cannot properly be regarded as sovereign rulers, but only as the lieutenants and agents of the sovereign ruler, till the moment comes when it pleases the prince or the people to revoke the gift. The true sovereign remains always seized of his power. Just as a feudal lord who grants lands to another retains his eminent domain over them, so the ruler who delegates authority to judge and command, whether it be for a short period, or during pleasure, remains seized of those rights of jurisdiction actually exercised by another in the form of a revocable grant, or precarious tenancy. For this reason the law requires the governor of a province, or the prince's lieutenant, to make a formal surrender of the authority committed to him, at the expiration of his term of office. In this respect there is no difference between the highest officer of state and his humblest subordinate. If it were otherwise, and the absolute authority delegated by the prince to a lieutenant was regarded as itself sovereign power, the latter could use it against his prince who would thereby forfeit his eminence, and the subject could command his lord, the servant his master. This is a manifest absurdity, considering that the sovereign is always excepted personally, as a matter of right, in all delegations of authority, however extensive. However much he gives there always remains a reserve of right in his own person, whereby he may command, or intervene by way of prevention, confirmation, evocation, or any other way he thinks fit, in all matters delegated to a subject, whether in virtue of an office or a commission. Any authority exercised in virtue of an office or a commission can be revoked, or made tenable for as long or short a period as the sovereign wills.
These principles accepted as the foundations of sovereignty, it follows that neither the Roman Dictator, the Harmost of Sparta, the Esymnete of Salonika, the Archus of Malta, nor the ancient Balia of Florence (who had the same sort of authority), nor regents of kingdoms, nor holders of any other sort of commission, nor magistrates whatsoever, who have absolute power to govern the commonwealth for a certain term only, are possessed of sovereign authority. ...
But supposing the king grants absolute power to a lieutenant for the term of his life, is not that a perpetual sovereign power? For if one confines perpetual to that which has no termination whatever, then sovereignty cannot subsist save in aristocracies and popular states, which never die. If one is to include monarchy too, sovereignty must be vested not in the king alone, but in the king and the heirs of his body, which supposes a strictly hereditary monarchy. In that case there can be very few sovereign kings, since there are only a very few strictly hereditary monarchies. Those especially who come to the throne by election could not be included.
A perpetual authority therefore must be understood to mean one that lasts for the lifetime of him who exercises it. If a sovereign magistrate is given office for one year, or for any other predetermined period, and continues to exercise the authority bestowed on him after the conclusion of his term, he does so either by consent or by force and violence. If he does so by force, it is manifest tyranny. The tyrant is a true sovereign for all that. The robber's possession by violence is true and natural possession although contrary to the law, for those who were formerly in possession have been disseized. But if the magistrate continues in office by consent, he is not a sovereign prince, seeing that he only exercises power on sufferance. Still less is he a sovereign if the term of his office is not fixed, for in that case he has no more than a precarious commission. ...
What bearing have these considerations on the case of the man to whom the people has given absolute power for the term of his natural life? One must distinguish. If such absolute power is given him simply and unconditionally, and not in virtue of some office or commission, nor in the form of a revocable grant, the recipient certainly is, and should be acknowledged to be, a sovereign. The people has renounced and alienated its sovereign power in order to invest him with it and put him in possession, and it thereby transfers to him all its powers, authority, and sovereign rights, just as does the man who gives to another possessory and proprietary rights over what he formerly owned. The civil law expresses this in the phrase 'all power is conveyed to him and vested in him'.
But if the people give such power for the term of his natural life to anyone as its official or lieutenant, or only gives the exercise of such power, in such a case he is not a sovereign, but simply an officer, lieutenant, regent, governor, or agent, and as such has the exercise only of a power inhering in another. When a magistrate institutes a perpetual lieutenant, even if he abandons all his rights of jurisdiction and leaves their exercise entirely to his lieutenant, the authority to command and to judge nevertheless does not reside in the lieutenant, nor the action and force of the law derive from him. If he exceeds his authority his acts have no validity, unless approved and confirmed by him from whom he draws his authority. For this reason King John, after his return from captivity in England, solemnly ratified all the acts of his son Charles, who had acted in his name as regent, in order, as was necessary, to regularize the position.
Whether then one exercises the power of another by commission, by institution, or by delegation, or whether such exercise is for a set term, or in perpetuity, such a power is not a sovereign power, even if there is no mention of such words as representative, lieutenant, governor, or regent, in the letters of appointment, or even if such powers are a consequence of the normal working of the laws of the country. In ancient times in Scotland, for instance, the law vested the entire governance of the realm in the next of kin, if the king should be a minor, on condition that everything that was done, was done in the king's name. But this law was later altered because of its inconvenient consequences.
Let us now turn to the other term of our definition and consider the force of the word absolute. The people or the magnates of a commonwealth can bestow simply and unconditionally upon someone of their choice a sovereign and perpetual power to dispose of their property and persons, to govern the state as he thinks fit, and to order the succession, in the same way that any proprietor, out of his liberality, can freely and unconditionally make a gift of his property to another. Such a form of gift, not being qualified in any way, is the only true gift, being at once unconditional and irrevocable. Gifts burdened with obligations and hedged with conditions are not true gifts. Similarly sovereign power given to a prince charged with conditions is neither properly sovereign, nor absolute, unless the conditions of appointment are only such as are inherent in the laws of God and of nature. ...
If we insist however that absolute power means exemption from all law whatsoever, there is no prince in the world who can be regarded as sovereign, since all the princess of the earth are subject to the laws of God and of nature, and even to certain human laws common to all nations. On the other hand, it is possible for a subject who is neither a prince nor a ruler, to be exempted from all the laws, ordinances, and customs of the commonwealth. We have an example in Pompey the Great who was dispensed from the laws for five years, by express enactment of the Roman people, at the instance of the Tribune Gabinius ... But notwithstanding such exemptions from the operations of the law, the subject remains under the authority of him who exercises sovereign power, and owes him obedience.
On the other hand it is the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes law for the subject, abrogates law already made, and amends obsolete law. No one who is subject either to the law or to some other person can do this. That is why it is laid down in the civil law that the prince is above the law, for the word law in Latin implies the command of him who is invested with sovereign power. Therefore we find in all statutes the phrase 'notwithstanding all edicts and ordinances to the contrary that we have infringed, or do infringe by these present'. This clause applies both to former acts of the prince himself, and to those of his predecessors. For all laws, ordinances, letters patent, privileges, and grants whatsoever issued by the prince, have force only during his own lifetime, and must be expressly, or at least tacitly, confirmed by the reigning prince who has cognizance of them ... In proof of which, it is the custom of this realm for all corporations and corporate bodies to ask for the confirmation of their privileges, rights, and jurisdictions, on the accession of a new king. Even Parlements and high courts do this, as well as individual officers of the crown.
If the prince is not bound by the laws of his predecessors, still less can he be bound by his own laws. One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one's own free exercise of will. As the law says, 'there can be no obligation in any matter which proceeds from the free will of the undertaker'. It follows of necessity that the king cannot be subject to his own laws. Just as, according to the canonists, the Pope can never tie his own hands, so the sovereign prince cannot bind himself, even if he wishes. For this reason edicts and ordinances conclude with the formula 'for such is our good pleasure', thus intimating that the laws of a sovereign prince, even when founded on truth and right reason, proceed simply from his own free will.
It is far otherwise with divine and natural laws. All the princes of the earth are subject to them, and cannot contravene them without treason and rebellion against God. His yoke is upon them, and they must bow their heads in fear and reverence before His divine majesty. The absolute power of princes and sovereign lords does not extend to the laws of God and of nature. He who best understood the meaning of absolute power, and made kings and emperors submit to his will, defined his sovereignty as a power to override positive law; he did not claim power to set aside divine and natural law.
But supposing the prince should swear to keep the laws and customs of his country, is he not bound by that oath? One must distinguish. If a prince promises in his own heart to obey his own laws, he is nevertheless not bound to do so, any more than anyone is bound by an oath taken to himself. Even private citizens are not bound by private oaths to keep agreements. The law permits them to cancel them, even if the agreements are in themselves reasonable and good. But if one sovereign prince promises another sovereign prince to keep the agreements entered into by his predecessors, he is bound to do so even if not under oath, if that other prince's interests are involved. If they are not, he is not bound either by a promise, or even by an oath.
The same holds good of promises made by the sovereign to the subject, even if the promises were made prior to his election (for this does not make the difference that many suppose). It is not that the prince is bound either by his own laws or those of his predecessors. But he is bound by the just covenants and promises he has made, whether under oath to do so or not, to exactly the same extent that a private individual is bound in like case. A private individual can be released from a promise that was unjust or unreasonable, or beyond his competence to fulfil, or extracted from him by misrepresentations or fraud, or made in error, or under restraint and by intimidation, because of the injury the keeping of it does him. In the same way a sovereign prince can make good any invasion of his sovereign rights, and for the same reasons. So the principle stands, that the prince is not subject to his own laws, or those of his predecessors, but is bound by the just and reasonable engagements which touch the interests of his subjects individually or collectively.
Many have been led astray by confusing the laws of the prince with covenants entered into by him. This confusion has led some to call these covenants contractual laws. This is the term used in Aragon when the king issues an ordinance upon the petition of the Estates, and in return receives some aid or subsidy. It is claimed that he is strictly bound by these laws, even though he is not by any of his other enactments. It is however admitted that he may override even these when the purpose of their enactment no longer holds. All this is true enough, and well-founded in reason and authority. But no bribe or oath is required to bind a sovereign prince to keep a law which is in the interests of his subjects. The bare word of a prince should be as sacred as a divine pronouncement. It loses its force if he is ill-thought of as one who cannot be trusted except under oath, nor relied on to keep a promise unless paid to do so. Nevertheless it remains true in principle that the sovereign prince can set aside the laws which he has promised or sworn to observe, if they no longer satisfy the requirements of justice, and he may do this without the consent of his subjects. It should however be added that the abrogation must be express and explicit in its reference, and not just in the form of a general repudiation. But if on the other hand there is no just cause for breaking a law which the prince has promised to keep, the prince ought not to do so, and indeed cannot contravene it, though he is not bound to the same extent by the promises and covenants of his predecessors unless he succeeds by strict hereditary right.
A law and a covenant must therefore not be confused. A law proceeds from him who has sovereign power, and by it he binds the subject to obedience, but cannot bind himself. A covenant is a mutual undertaking between a prince and his subjects, equally binding on both parties, and neither can contravene it to the prejudice of the other, without his consent. The prince has no greater privilege than the subject in this matter. But in the case of laws, a prince is no longer bound by his promise to keep them when they cease to satisfy the claims of justice. Subjects however must keep their engagements to one another in all circumstances, unless the prince releases them from such obligations. Sovereign princes are not bound by oath to keep the laws of their predecessors. If they are so bound, they are not properly speaking sovereign. ...
The constitutional laws of the realm, especially those that concern the king's estate being, like the salic law, annexed and united to the Crown, cannot be infringed by the prince. Should he do so, his successor can always annul any act prejudicial to the traditional form of the monarchy, since on this is founded and sustained his very claim to sovereign majesty. ...
As for laws relating to the subject, whether general or particular, which do not involve any question of the constitution, it has always been usual only to change them with the concurrence of the three estates, either assembled in the States-General of the whole of France, or in each bailiwick separately. Not that the king is bound to take their advice, or debarred from acting in a way quite contrary to what they wish, if his acts are based on justice and natural reason. At the same time the majesty of the prince is most fully manifested in the assembly of the three estates of the whole realm, humbly petitioning and supplicating him, without any power of commanding or determining, or any right to a deliberative voice. Only that which it pleases the prince to assent to or dissent from, to command or to forbid, has the force of law and is embodied in his edict or ordinance.
Those who have written books about the duties of magistrates and such like matters are in error in maintaining that the authority of the Estates is superior to that of the prince. Such doctrines serve only to encourage subjects to resist their sovereign rulers. Besides, such views bear no relation to the facts, except when the king is in captivity, lunatic or a minor. If he were normally subject to the Estates, he would be neither a prince nor a sovereign, and the commonwealth would not be a kingdom or a monarchy, but a pure aristocracy where authority is shared equally between the members of the ruling class. ...
Although in the Parliaments of the kingdom of England, which meet every three years, all three orders use great freedom of speech, as is characteristic of northern peoples, they still must proceed by petitions and supplications ... Moreover Parliaments in England can only assemble, as in this kingdom and in Spain, under letters patent expressly summoning them in the king's name. This is sufficient proof that Parliaments have no independent power of considering, commanding or determining, seeing that they can neither assemble nor adjourn without express royal command ... It may be objected that no extraordinary taxes or subsidies can be imposed without the agreement and consent of Parliament. King Edward I agreed to this principle in the Great Charter, which is always appealed to by the people against the claims of the king. But I hold that in this matter no other king has any more right than has the King of England, since it is not within the competence of any prince in the world to levy taxes at will on his people, or seize the goods of another arbitrarily, as Philippe de Comines very wisely argued at the Estates at Tours, as we may read in his Memoirs.
We must agree then that the sovereignty of the king is in no wise qualified or diminished by the existence of Estates. On the contrary his majesty appears more illustrious when formally recognized by his assembled subjects, even though in such assemblies princes, not wishing to fall out with their people, agree to many things which they would not have consented to, unless urged by the petitions, prayers, and just complaints of a people burdened by grievances unknown to the prince. After all, he depends for his information on the eyes and ears and reports of others.
From all this it is clear that the principal mark of sovereign majesty and absolute power is the right to impose laws generally on alt subjects regardless of their consent ... And if it is expedient that if he is to govern his state well, a sovereign prince must be above the law, it is even more expedient that the ruling class in an aristocracy should be so, and inevitable in a popular state. A monarch in a kingdom is set apart from his subjects, and the ruling class from the people in an aristocracy. There are therefore in each case two parties, those that rule on the one hand, and those that are ruled on the other. This is the cause of the disputes about sovereignty that arise in them, but cannot in a popular state ... There the people, rulers and ruled, form a single body and so cannot bind themselves by their own laws. ...
When edicts are ratified by Estates or Parlements, it is for the purpose of securing obedience to them, and not because otherwise a sovereign prince could not validly make law. As Theodosius said with reference to the consent of the Senate, 'it is not a matter of necessity but of expediency'. He also remarked that it was most becoming in a sovereign prince to keep his own laws, for this is what makes him feared and respected by his subjects, whereas nothing so undermines his authority as contempt for them. As a Roman Senator observed 'it is more foolish and ill-judged to break your own laws than those of another'.
But may it not be objected that if the prince forbids a sin, such as homicide, on pain of death, he is in this case bound to keep his own law The answer is that this is not properly the prince's own law, but a law of God and nature, to which he is more strictly bound than any of his subjects. Neither his council, nor the whole body of the people, can exempt him from his perpetual responsibility before the judgement-seat of God, as Solomon said in unequivocal terms. Marcus Aurelius also observed that the magistrate is the judge of persons, the prince of the magistrates, and God of the prince. Such was the opinion of the two wisest rulers the world has ever known. Those who say without qualification that the prince is bound neither by any law whatsoever, nor by his own express engagements, insult the majesty of God, unless they intend to except the laws of God and of nature, and all just covenants and solemn agreements. Even Dionysius, tyrant of Syracuse, said to his mother that he could exempt her from the laws and customs of Syracuse, but not from the laws of God and of nature. For just as contracts and deeds of gift of private individuals must not derogate from the ordinances of the magistrate, nor his ordinances from the law of the land, nor the law of the land from the enactments of a sovereign prince, so the laws of a sovereign prince cannot override or modify the laws of God and of nature. ...
There is one other point. If the prince is bound by the laws of nature, and the civil law is reasonable and equitable, it would seem to follow that the prince is also bound by the civil law. As Pacatius said to the Emperor Theodosius 'as much is permitted to you as is permitted by the laws'. In answer to this I would point out that the laws of a sovereign prince concern either public or private interests or both together. All laws moreover can be either profitable at the expense of honour, or profitable without involving honour at all, or honourable without profit, or neither honourable nor profitable. When I say 'honour' I mean that which conforms with what is natural and right, and it has already been shown that the prince is bound in such cases. Laws of this kind, though published by the prince's authority, are properly natural laws. Laws which are profitable as well as just are even more binding on him. One need hardly concern oneself about the sanctity of laws which involve neither profit nor honour. But if it is a question of weighing honour against profit, honour should always be preferred. Aristides the Just said of Themistocles that his advice was always very useful to the people, but shameful and dishonourable.
But if a law is simply useful and does not involve any principle of natural justice, the prince is not bound by it, but can amend it or annul it altogether as he chooses, provided that with the alteration of the law the profit to some does not do damage to others without just cause. The prince then can annul an ordinance which is merely useful in order to substitute one more or less advantageous, for profit, honour, and justice all have degrees of more and less. And just as the prince can choose the most useful among profitable laws, so he can choose the most just among equitable laws, even though while some profit by them others suffer, provided it is the public that profits, and only the private individual that suffers. It is however never proper for the subject to disobey the laws of the prince under the pretext that honour and justice require it. ...
Edicts and ordinances therefore do not bind the ruler except in so far as they embody the principles of natural justice; that ceasing, the obligation ceases. But subjects are bound till the ruler has expressly abrogated the law, for it is a law both divine and natural that we should obey the edicts and ordinances of him whom God has set in authority over us, providing his edicts are not contrary to God's law. For just as the rear-vassal owes an oath of fealty in respect of and against all others, saving his sovereign prince, so the subject owes allegiance to his sovereign prince in respect of and against all others, saving the majesty of God, who is lord of all the princes of this world. From this principle we can deduce that other rule, that the sovereign prince is bound by the covenants he makes either with his subjects, or some other prince. Just because he enforces the covenants and mutual engagements entered into by his subjects among themselves, he must be the mirror of justice in all his own acts ... He has a double obligation in this case. He is bound in the first place by the principles of natural equity, which require that conventions and solemn promises should be kept, and in the second place in the interests of his own good faith, which he ought to pre-serve even to his own disadvantage, because he is the formal guarantor to all his subjects of the mutual faith they owe one another. ...
A distinction must therefore be made between right and law, for one implies what is equitable and the other what is commanded. Law is nothing else than the command of the sovereign in the exercise of his sovereign power. A sovereign prince is not subject to the laws of the Greeks, or any other alien power, or even those of the Romans, much less to his own laws, except in so far as they embody the law of nature which, according to Pindar, is the law to which all kings and princes are subject. Neither Pope nor Emperor is exempt from this law, though certain flatterers say they can take the goods of their subjects at will. But both civilians and canonists have repudiated this opinion as contrary to the law of God. They err who assert that in virtue of their sovereign power princes can do this. It is rather the law of the jungle, an act of force and violence. For as we have shown above, absolute power only implies freedom in relation to positive laws, and not in relation to the law of God. God has declared explicitly in His Law that it is not just to take, or even to covet, the goods of another. Those who defend such opinions are even more dangerous than those who act on them. They show the lion his claws, and arm princes under a cover of just claims. The evil will of a tyrant, drunk with such flatteries, urges him to an abuse of absolute power and excites his violent passions to the pitch where avarice issues in confiscations, desire in adultery, and anger in murder. ...
Since then the prince has no power to exceed the laws of nature which God Himself, whose image he is, has decreed, he cannot take his subjects' property without just and reasonable cause, that is to say by purchase, exchange, legitimate confiscation, or to secure peace with the enemy when it cannot be otherwise achieved. Natural reason instructs us that the public good must be preferred to the particular, and that subjects should give up not only their mutual antagonisms and animosities, but also their possessions, for the safety of the commonwealth. ...
It remains to be determined whether the prince is bound by the covenants of his predecessors, and whether, if so, it is a derogation or his sovereign power ... A distinction must be made between the ruler who succeeds because he is the natural heir of his predecessor, and the ruler who succeeds in virtue of the laws and customs of the realm. In the first case the heir is bound by the oaths and promises of his predecessors just as is any ordinary heir. In the second case he is not so bound even if he is sworn, for the oath of the predecessor does not bind the successor. He is bound however in all that tends to the benefit of the kingdom.
There are those who will say that there is no need of such distinctions since the prince is bound in any case by the law of nations, under which covenants are guaranteed. But I consider that these distinctions are necessary nevertheless, since the prince is bound as much by the law of nations, but no more, than by any of his own enactments. If the law of nations is iniquitous in any respect, he can disallow it within his own kingdom, and forbid his subjects to observe it, as was done in France in regard to slavery. He can do the same in relation to any other of its provisions, so long as he does nothing against the law of God. If justice is the end of the law, the law the work of the prince, and the prince the image of God, it follows of necessity that the law of the prince should be modelled on the law of God.
Concerning Feudatory and Tributary Princes [CHAPTER IX]
A CHAPTER must be devoted to this subject, since formerly the rights of sovereignty were identical with feudal rights, such as are found throughout Europe and Asia ... We have already said that an absolute sovereign is one who, under God, holds by the sword alone. If he holds of another he is not sovereign. But this raises a difficulty. If those who hold anything at all of another in faith and homage are not sovereigns, there are hardly any sovereign princes in the world. On the other hand if we concede that those who do so hold in faith and homage are sovereigns, we are in effect saying the vassal and his lord, the servant and his master, are equals in honour, power, and authority. But it is a fact that civilians have treated the Dukes of Milan, Mantua, Ferrara, Savoy, and even certain counts as sovereigns, though this is not in the least consistent with the principle we have laid down. It is clear therefore that the matter needs examining, since it touches so closely upon the question of sovereignty, and the standing and honour of princes.
We have already shown in the chapter on protection that princes who are under the protection of, but not subject to another, remain sovereign, even though the alliance is an unequal one in that the protected must needs defer to the protector. But there is a great difference between being simply under the protection of another, and owing him faith and homage, by which I mean the oaths of fidelity, submission, service, and duty owed by a vassal to his lord.
There are in fact six degrees of dependence below the status of an absolute prince who holds of none and is dependent on none. First there is the tributary prince who is the inferior of him to whom he pays tribute, but nevertheless is a sovereign prince, since he is not in subjection to him. Though he may be more heavily burdened than a prince who is under protection, his status is nevertheless the higher, in that once the tribute which he has promised in order to secure peace is paid, he is quit of all further obligations, and may take what steps he pleases for the defence of his rights. Next in order is the prince who has commended himself to another for protection. His status is lower than that of either his protector or a tributary prince, for he cannot defend his rights save with the assistance of his protector, whose protégé and dependant he is, as has been shown in an earlier chapter. The third type is that of the prince who is a sovereign in his own realm and under no man's protection, but at the same time is the vassal of another prince for some fief, in respect of which he owes him the honour and service due on that fief. The fourth is the simple vassal who owes faith and service for his fief, but is neither a sovereign himself, nor the natural subject of the man of whom he holds the fief. The fifth is the liege-vassal of a sovereign prince but not his subject. The last is the natural subject, whether vassal or tenant, who holds his feudal or peasant holding of a sovereign prince who is his natural lord and has jurisdiction over him; it includes those who have neither fief nor lands, but are nevertheless justiciable by and subject to the prince of their native country.
I have made all these distinctions in order to clear up the very common confusion between the subject and the vassal, and between the simple vassal and the liege-vassal. The liege-vassal owes obedience to his lord in relation to and against all. The simple vassal reserves the rights of his lord's superior. But only the subject owes absolute obedience. The vassal, whether liege or simple, if he is not a subject, only owes the service and homage promised at his investiture, and can be quit of it by abandoning his fief without breach of faith. But the subject, whether vassal, tenant, free proprietor, or landless man cannot be quit of the authority of his prince against his prince's will, or without his consent, as has been shown in the chapter on the citizen. The simple vassal only takes the oath of submission to his lord once and there are even vassals who take no oath, for there are fiefs on which no homage is due. But a subject, whoever he is, whether vassal, tenant, free proprietor, landless man, or even a bishop without temporalities, must take an oath of submission to his sovereign prince whenever, and as often as, he chooses to demand it. As for liege-homage, one need not be the subject of the man to whom it is due, for a sovereign prince can hold a fief of another in respect of which he owes him liege-homage. ...
These considerations suggest that the only ruler who is sovereign in an absolute sense is one who holds nothing of any other prince, for the vassal, even if he is the Pope or the Emperor himself, if he holds any kind of fief, owes personal service to the man of whom he holds it. This term 'service', when used in relation to fiefs, is in no country prejudicial to the personal liberty of the vassal. Nevertheless it implies obligations, duties, honour, and reverence owed to the feudal overlord. These do not at all imply real servitude, but they are inseparably attached to the person of the vassal, so that he cannot escape them save by abandoning his fief, and only then if he is not the natural subject of his lord. In that case he cannot escape his subjection even in abandoning his fief... Can then a prince really be regarded as an absolute sovereign who takes the oath of homage, who is obliged to serve another, who is the man, or to speak more exactly, the servitor of another? ...
Bartolus once wrote that it was a kind of heresy to reject the claims of the Emperor to lordship of the world. Such a statement hardly requires refutation, seeing that Rome itself never ruled more than a thirtieth part of the globe, and the German Emperors only a tenth part of the Roman Empire ... Nevertheless the partisans of the Emperor on the one hand, and the Church on the other have claimed, the one for the Emperor, the other for the Pope, final sovereign authority over all Christian princes. Some have argued that all anointed kings are vassals of the Pope, others that the Pope is the guardian of all kings incapable of discharging their functions. Innocent IV, hearing that the King of Portugal neglected the interests of his realm, commanded the princes and barons of Portugal to choose a regent to take over the management of the finances and the administration, 'not', he said, 'that I intend to do anything to the prejudice of the crown, but rather to preserve its rights'. But his acts belied his words. Urban V presumed to legitimatize Henry, bastard of Castile, in order to give him grounds for expelling his legitimate brother Pedro from the kingdom, as he did. For Popes claimed the right of legitimization in respect of all princes. Others were prepared to go even further and ascribe to the Pope jurisdiction over the Emperor, and over all kings and princes, of right, and in fact, excepting only the Kings of France. Even canonists have admitted that in fact the latter acknowledge no superior save God alone. ...
But all these various claims rested on no surer foundation than the authority of Pope Gelasius, who wrote that Popes could deprive kings of their authority. It was also claimed that there was an appeal from all kings and peoples to the Pope; that only an Emperor or a Pope could revoke their tides and deprive kings; that there was no prince rightly instituted unless the Pope had confirmed him in his principality; that the Pope could grant privileges, exemptions, and immunities to the subject regardless of the laws and customs of the realm, and that he was the sole judge of all exemptions. Finally it has been claimed that in virtue of the phrase de plenitudine potestatis used in Papal rescripts, the Pope can set aside the laws of all princes whatsoever. ...
I do not wish to enter into matters of religion, but to confine myself to the question of temporal sovereignty which is the subject of my discourse. This subject has not been discussed in a way which makes clear which princes are absolute sovereigns, and whether the rest are the subjects of either Pope or Emperor.
From the time that Pope Gregory, the one who first described himself as servant of the servants of God, obtained from Phocas the Emperor in Constantinople authority over all the other bishops, his successors by using spiritual weapons for temporal ends gradually extended their power. Princes in their turn, more from piety towards God than respect for the Papal office, came to reverence its authority more and more ... In the end the Popes came to claim sovereignty not only in respect of spiritual matters, but also in temporal affairs, over all Christian princes. They acquired such rights in some cases by agreements and concessions, in others by usurpation and prescription, excepting only the kingdom of France, which always withstood such attempts, hard as the Popes tried to subject it to their authority. ...
[The rest of this very long chapter is devoted to a survey of the actualities of the political scene. Therefore, though he manifestly disapproved of the way the temporal power of the Popes had been built up, he admitted it as a fact. He regarded the Spanish kingdoms, Naples, Hungary, and Jerusalem together with many of the Italian city states as Papal fiefs. The rest of the Italian states, with the exception of Venice were Imperial fiefs. The New World was also held of the Pope in consequence of the Bull of Alexander VI. The Emperor he would not allow to be a sovereign prince anywhere. He either held of the Pope, or in Germany itself was subject to the Diet, for he regarded Germany as an aristocracy. His views on England are not so clear. It was a Papal fief till Henry VIII repudiated Papal authority. He says however in another place that feudal dependence was imprescriptible unless the fief was abandoned. Yet whereas in one place he speaks of the Swiss Cantons as originally fiefs of the Empire, he ends by describing them as absolute sovereign states, admitting no overlord. Of the Mohammedan world he says he has not enough evidence to discuss it, but he notices a passage in the Koran which forbids the title of Seigneur to any but the Caliph, and supposes that this is why no Mohammedan ruler wears a crown.
Tributary princes he hardly discusses, since by his own account it is a temporary status. He gives a few examples such as the tribute paid by Carthage to Rome, or by the Emperor Ferdinand to the Sultan in respect of the kingdom of Hungary. France alone emerges from this survey with an unqualified claim to be a sovereign state with no limitation whatsoever. In II. v [p. 67] however he lists France, Spain, England, Scotland, Ethiopia, Turkey, Persia, and Muscovy as absolute and sovereign monarchies.]
The True Attributes of Sovereignty [CHAPTER X]
BECAUSE there are none on earth, after God, greater than sovereign princes, whom God establishes as His lieutenants to command the rest of mankind, we must enquire carefully into their estate, that we may respect and revere their majesty in all due obedience, speak and think of them with all due honour. He who contemns his sovereign prince, contemns God whose image he is. ...
Aristotle, Polybius, and Dionysius Halicarnassus alone among the Greeks discussed the attributes of sovereignty. But they treated the subject so briefly that one can see at a glance that they did not really understand the principles involved. I quote Aristotle. 'There are', he says, 'three parts of a commonwealth. There must be provision for the taking and giving of counsel, for appointing to office and assigning to each citizen his duties, for the administration of justice.' If he did not mean by parts attributes of sovereignty, he never treated of the subject at all, since this is the only passage which has any bearing. Polybius does not define the rights and duties of sovereignty either, but he says of the Romans that their constitution was a mixture of monarchy, aristocracy, and popular government, since the people made law and appointed to office, the Senate administered the provinces and conducted great affairs of state, the consuls enjoyed the pre-eminence of honour accorded to kings, especially in the field, where they exercised supreme command. This passage appears to imply a treatment of sovereign rights, since he says that those who enjoyed those rights had sovereign power. Dionysius Halicarnassus however had a clearer and better understanding of the matter than the others. When he was explaining how the King Servius deprived the Senate of authority, he observed that he transferred to the people the power to make and unmake law, to determine war and peace, to institute and deprive magistrates, and the right of hearing appeals from all courts whatsoever. In another passage, when describing the third conflict between the nobles and the people, he reported how the Consul Marcus Valerius rebuked the people and said that they should be content with the powers of making law, appointing to office and hearing appeals. Other matters should be left to the Senate.
Since ancient times civilians, and especially those of more recent years, have elaborated these rights, especially in their treatises on what they call regalian rights. Under this heading they have collected an immense number of particular rights and privileges enjoyed by dukes, counts, bishops, and various officials, and even subjects of sovereign princes. As a result they describe dukes, such as those of Milan, Mantua, Ferrara, and Savoy, and even counts, as sovereign princes. However reasonable it may appear, this is an error. How can these rulers be regarded as anything but sovereign, they argue, when they make law for their subjects, levy war and conclude peace, appoint to all office in their dominions, levy taxes, make a free man of whom they please, pardon those who have forfeited their lives. What other powers has any sovereign prince? But we have already shown above that the Dukes of Milan, Mantua, Ferrara, Florence, and Savoy hold of the Empire. Their most honourable title is that of Imperial Vicar and Prince of the Empire ... We have also pointed out the absurdities that ensue if one makes sovereigns of vassals, since the lord and his subject, the master and his servant, the man who makes the law and the man on whom it is imposed, the man who issues orders and the man who obeys them, are thereby placed on an equal footing. Since this cannot be, it follows that dukes, counts, and all those who hold of another, or are bound by his laws and subject to his commands, whether of right or by constraint, are not sovereign. The same holds good of the highest officers of state, lieutenant-generals of the king, governors, regents, dictators, whatever the extent of their powers. They are not sovereigns since they are subject to the laws and commands of another and may be appealed against.
The attributes of sovereignty are therefore peculiar to the sovereign prince, for if communicable to the subject, they cannot be called attributes of sovereignty ... Just as Almighty God cannot create another God equal with Himself, since He is infinite and two infinities cannot co-exist, so the sovereign prince, who is the image of God, cannot make a subject equal with himself without self-destruction.
If this is so, it follows that rights of jurisdiction are not attributes of sovereignty since they are exercised by subjects as well as the prince. The same is true of the appointment and dismissal of officials, for this power also the prince shares with the subject, not only in regard to the lesser offices of justice, of police, of the armed forces, or of the revenues, but also in regard to responsible commanders in peace and war ... The infliction of penalties and the bestowing of awards is not an attribute of sovereignty either, for the magistrate has this power, though it is true he derives it from the sovereign. Nor is taking counsel about affairs of state an attribute of sovereignty, for such is the proper function of the privy council or senate in the commonwealth, a body always distinct from that in which sovereignty is vested. Even in the popular state, where sovereignty lies in the assembly of the people, so far from it being the function of the assembly to take counsel, it ought never be permitted to do so, as I shall show later.
It is clear therefore that none of the three functions of the state that Aristotle distinguishes are properly attributes of sovereignty. As for what Halicarnassus says about Marcus Valerius' speech to the people of Rome, when trying to pacify them, that they should be content with the prerogatives of making law and appointing magistrates, he does not make the point sufficiently clear. As I have already said, appointing to office is not an attribute of sovereignty. Moreover some further explanation is necessary of the nature of the law-making power. A magistrate can make laws binding on those subject to his jurisdiction, provided such laws do not conflict with the edicts and ordinances of his sovereign prince.
Before going any further, one must consider what is meant by law. The word law signifies the right command of that person, or those persons, who have absolute authority over all the rest without exception, saving only the law-giver himself, whether the command touches all subjects in general or only some in particular. To put it another way, the law is the rightful command of the sovereign touching all his subjects in general, or matters of general application ... As to the commands of the magistrate, they are not properly speaking laws but only edicts. 'An edict', says Varro, 'is an order issued by a magistrate.' Such orders are only binding on those subject to his jurisdiction, and are only in force for his term of office.
The first attribute of the sovereign prince therefore is the power to make law binding on all his subjects in general and on each in particular. But to avoid any ambiguity one must add that he does so without the consent of any superior, equal, or inferior being necessary. If the prince can only make law with the consent of a superior he is a subject; if of an equal he shares his sovereignty; if of an inferior, whether it be a council of magnates or the people, it is not he who is sovereign. The names of the magnates that one finds appended to a royal edict are not there to give force to the law, but as witnesses, and to make it more acceptable ... When I say that the first attribute of sovereignty is to give law to all in general and each in particular, I mean by this last phrase the grant of privileges. I mean by a privilege a concession to one or a small group of individuals which concerns the profit or loss of those persons only. ...
It may be objected however that not only have magistrates the power of issuing edicts and ordinances, each according to his competence and within his own sphere of jurisdiction, but private citizens can make law in the form of general or local custom. It is agreed that customary law is as binding as statute law. But if the sovereign prince is author of the law, his subjects are the authors of custom. But there is a difference between law and custom. Custom establishes itself gradually over a long period of years, and by common consent, or at any rate the consent of the greater part. Law is made on the instant and draws its force from him who has the right to bind all the rest. Custom is established imperceptibly and without any exercise of compulsion. Law is promulgated and imposed by authority, and often against the wishes of the subject. For this reason Dion Chrysostom compared custom to the king and law to the tyrant. Moreover law can break custom, but custom cannot derogate from the law, nor can the magistrate, or any other responsible for the administration of law, use his discretion about the enforcement of law as he can about custom. Law, unless it is permissive and relaxes the severity of another law, always carries penalties for its breach. Custom only has binding force by the sufferance and during the good pleasure of the sovereign prince, and so far as he is willing to authorize it. Thus the force of both statutes and customary law derives from the authorization of the prince ... Included in the power of making and unmaking law is that of promulgating it and amending it when it is obscure, or when the magistrates find contradictions and absurdities. ...
All the other attributes and rights of sovereignty are included in this power of making and unmaking law, so that strictly speaking this is the unique attribute of sovereign power. It includes all other rights of sovereignty, that is to say of making peace and war, of hearing appeals from the sentences of all courts whatsoever, of appointing and dismissing the great officers of state; of taxing, or granting privileges of exemption to all subjects, of appreciating or depreciating the value and weight of the coinage, of receiving oaths of fidelity from subjects and liege-vassals alike, without exception of any other to whom faith is due. ...
But because law is an imprecise and general term, it is as well to specify the other attributes of sovereignty comprised in it, such as the making of war and peace. This is one of the most important rights of sovereignty, since it brings in its train either the ruin or the salvation of the state. This was a right of sovereignty not only among the ancient Romans, but has always been so among all other peoples... Sovereign princes are therefore accustomed to keep themselves informed of the smallest accidents and undertakings connected with warfare. Whatever latitude they may give to their representatives to negotiate peace or an alliance, they never grant the authority to conclude without their own express consent. This was illustrated in the negotiations leading up to the recent treaty of Câteaux-Cambrésis, when the king's envoys kept him almost hourly informed of all proposals and counter-proposals ... In popular states and aristocracies the difficulty of assembling the people, and the danger of making public all the secrets of diplomacy has meant that the people have generally handed responsibility over to the council. Nevertheless it remains true that the commissions and the orders that it issues in discharge of this function proceed from the authority of the people, and are despatched by the council in the name of the people. ...
The third attribute of sovereignty is the power to institute the great officers of state. It has never been questioned that the right is an attribute of sovereignty, at any rate as far as the great officers are concerned. I confine it however to high officials, for there is no commonwealth in which these officers, and many guilds and corporate bodies besides, have not some power of appointing their subordinate officials. They do this in virtue of their office, which carries with it the power to delegate. For instance, those who hold feudal rights of jurisdiction of their sovereign prince in faith and homage have the power to appoint the judges in their courts, and their assistants. But this power is devolved upon them by the prince ... It is therefore not the mere appointment of officials that implies sovereign right, but the authorization and confirmation of such appointments. It is true however that in so far as the exercise of this right is delegated, the sovereignty of the prince is to that extent qualified, unless his concurrence and express consent is required.
The fourth attribute of sovereignty, and one which has always been among its principal rights, is that the prince should be the final resort of appeal from all other courts... Even though the prince may have published a law, as did Caligula, forbidding any appeal or petition against the sentences of his officers, nevertheless the subject cannot be deprived of the right to make an appeal, or present a petition, to the prince in person. For the prince cannot tie his own hands in this respect, nor take from his subjects the means of redress, supplication, and petition, notwithstanding the fact that all rules governing appeals and jurisdictions are matters of positive law, which we have shown does not bind the prince. This is why the Privy Council, including the Chancellor de l'Hôpital, considered the action of the commissioners deputed to hold an enquiry into the conduct of the President l'Alemant irregular and unprecedented. They had forbidden him to approach within twenty leagues of the court, with the intention of denying him any opportunity of appeal. The king himself could not deny this right to the subject, though he is free to make whatsoever reply to the appeal, favourable or unfavourable, that he pleases ... Were it otherwise, and the prince could acquit his subjects or his vassals from the obligation to submit their causes to him in the last instance, he would make of them sovereigns equal with himself... But if he would preserve his authority, the surest way of doing so is to avoid ever devolving any of the attributes of sovereignty upon a subject. ...
With this right is coupled the right of pardoning convicted persons, and so of overruling the sentences of his own courts, in mitigation of the severity of the law, whether touching life, property, honour, or domicile. It is not in the power of any magistrate, whatever his station, to do any of these things, or to make any revision of the judgement he has once given ... In a well-ordered commonwealth the right should never be delegated either to a special commission, or to any high officer of state, save in those circumstances where it is necessary to establish a regency, either because the king is abroad in some distant place, or in captivity, or incapable, or under age. For instance, during the minority of Louis IX, the authority of the Crown was vested in his mother Blanche of Castile as his guardian ... Princes however tend to abuse this right, thinking that to pardon is pleasing to God, whereas to exact the utmost punishment is displeasing to Him. But I hold, subject to correction, that the sovereign prince cannot remit any penalty imposed by the law of God, any more than he can dispense any one from the operation of the law of God, to which he himself is subject. If the magistrate who dispenses anyone from obedience to the ordinance of his king merits death, how much more unwarrantable is it for the prince to acquit a man of the punishment ordained by God's law? If a sovereign prince cannot deny a subject his civil rights, how can he acquit him of the penalties imposed by God, such as the death penalty exacted by divine law for treacherous murder?
It may be objected that the prince can never show the quality of mercy if he cannot remit punishments prescribed by divine law. But in my opinion there are other means of showing clemency, such as pardoning breaches of positive laws. For instance, if the prince forbids the carrying of arms, or the selling of foodstuffs to the enemy in time of war, on pain of death, he can very properly pardon the offence of carrying arms if it was done in self-defence, or the selling of provisions if done under the pressure of extreme poverty. Again, the penalty for larceny under the civil law is death. A merciful prince can reduce this to fourfold restitution, which is what is required by divine law. It has always been the custom among Christian kings to pardon unpardonable offences on Good Friday. But pardons of this kind bring in their train pestilences, famine, war, and the downfall of states. That is why it is said in the law of God that in punishing those who have merited death one averts the curse on the whole people. Of a hundred criminals only two are brought to justice, and of those brought to justice only one half are proved guilty. If the few proven cases of guilt are pardoned, how can punishment act as a deterrent to evil-doers?... The best way for a prince to exercise his prerogative of mercy is to pardon offences against his own person. Of all exercises of mercy none is more pleasing to God. But what can one hope of the prince who cruelly avenges all injuries to himself, but pardons those inflicted on others? ...
Faith and homage are also among the most important attributes of sovereignty, as was made clear when the prince was described as the one to whom obedience was due without exception.
As for the right of coinage, it is contained within the law-making power, for only he who can make law can regulate currency. This is illustrated in the very terms used by Greeks, Romans, and French alike, for the word nummus comes from the Greek nomos signifying both law and alloy. There is nothing of more moment to a country, after the law, than the denomination, the value, and the weight of the coinage, as we have already shown in a separate treatise. Therefore in every well-ordered commonwealth the prince reserves this right exclusively to himself... And although in this kingdom many private persons, such as the Vicomte de Touraine, the Bishops of Meaux, Cahors, Agde, Ambrun and the Counts of St. Pol, de la Marche, Nevers, Blois, and others enjoyed this right, Francis I in a general edict cancelled all such rights whatsoever, declaring the concessions null and void. This right and attribute of sovereignty ought not ever to be granted to a subject. ...
The right of levying taxes and imposing dues, or of exempting persons from the payment of such, is also part of the power of making law and granting privileges. Not that the levying of taxation is inseparable from the essence of the commonwealth, for as President Le Maître has shown, there was none levied in France till the time of Louis IX. But if any necessity should arise of imposing or withdrawing a tax, it can only be done by him who has sovereign authority ... It is true that many seigneurs have prescriptive rights of levying tallages, dues, and imposts. Even in this kingdom many seigneurs can levy tallage on four occasions in virtue of privileges confirmed by judgements in the courts, and by custom. Even seigneurs who have no rights of jurisdiction enjoy this privilege. But in my opinion the privilege started as an abuse which in consequence of long years of enjoyment acquired the dignity of a prescriptive right. But there is no abuse, of however long standing, that the law cannot amend, for the law exists to amend all abuses. Therefore, by the Edict of Moulins it was ordained that all rights of tallage claimed by seigneurs over their dependants could no longer be levied, nothwithstanding immemorial prescription. ...
I have left out of this discussion those lesser prerogatives that individual sovereign princes claim in their own particular realms, as I have confined myself to those general attributes of sovereignty proper to all sovereign princes as such, but which, being inalienable and imprescriptible, cannot, of their very nature, be communicated to subordinate persons such as feudal lords, magistrates, or subjects of any degree whatsoever. Whatever grant a sovereign prince makes of lands or jurisdiction, the rights of the crown are always reserved. This was implied in a judgement of the High Court relating to appanages in France, that no passage of time could justify the usurpation of royal rights. If common lands cannot be acquired by prescription, how can the rights and attributes of sovereignty? It is certain, on the evidence of various edicts and ordinances, that the public domain is inalienable, and cannot be acquired by prescription. Over two thousand years ago Themistocles, in recovering common lands occupied by private persons, said in his speech to the people of Athens that men could acquire no prescriptive rights against God nor private citizens against the commonwealth. ...
Such are the principal characteristics of sovereign majesty, treated as briefly as possible, since I have already written at greater length on the subject in my book De Imperio. It is most expedient for the preservation of the state that the rights of sovereignty should never be granted out to a subject, still less to a foreigner, for to do so is to provide a stepping-stone whereby the grantee himself becomes the sovereign.
1. The Anabaptist movement in the Low Countries and in Germany in the sixteenth century caused widespread fear and anger out of all proportion to its real threat, because the doctrine that the visible Church consisted of a congregation of the elect, or those illuminated by the inner light, under a shepherd, challenged all officially organized and inclusive Churches whether Catholic, Lutheran, or Calvinist. Attention centred on Münster where there was such a congregation of Anabaptists that they established control over the nominally episcopal city. They took as their second leader in 1534, John of Leyden, who established a régime of communism and polygamy. It took an army raised by the Diet, and a seige of eighteen months, to capture the city, when John of Leyden was executed and the community dissipated. Bodin returns several times to the episode as a good illustration of all that he disapproved of. See p. 112 and p. 143.
2. Methodus ad facilem historiarum cognitionem, chap. VI (1566). Translated by B. Reynolds in the Records of Civilization, No. XXXVII, published by Columbia University as The Method for the Easy Comprehension of History.
3. The term used is cité in the sense of the Latin civitas or the contemporary Italian città, a city-state centred in a town, but including all the inhabitants of the surrounding district under its jurisdiction.
4. Ei et in eum omnem potestatem contulit.
5. Nulla obligatio consistere potest, quae a voluntate promittentis statum capit.
6. There is a marginal reference to Innocent IV.
7. The term used is 'lois royales'.
8. A reference to Théodore Béza, Du droit des Magistrats, 1576?
9. These Estates met in 1484 after the death of Louis XI. Despite the opportunity offered by the dispute over the regency, the only matter pressed by them was a reduction of the tailles to the lower scale of the times of Charles VII. Though concessions were made to this effect, the government made no surrender in principle of its absolute control of finance. The stand made by de Comines earned him dismissal from office and five years' imprisonment.
10. This must be a reference to Gelasius I, 493-96, whose pronouncements on the separation of powers were incorporated in the Canon Law. Bodin was however ascribing to St. Gelasius views developed by medieval popes, for he only claimed priority in dignity not in power for the spiritual authority, and spoke of priestly authority and imperial authority as such, and not popes and kings. Gelasius II, 1118-19, held the views Bodin described, but when he declared the Emperor Henry V deposed, he was no innovator, but only acting upon the precedent set by Gregory VII in deposing Henry IV,
11. Gregory I, 590-603.
12. I have been unable to identify this episode.
13. This treatise was published three times under different titles. In 1568 as Réponse au paradoxe de Monsieur de Malestroict, in 1574 as Discours sur les causes de l'extrème cherté qui est aujourd'hui en France, and in 1578 as Discours de Jean Bodin sur le rehaussement et diminution des Monnaies. In 1591 a Latin translation appeared.
14. The Ordinance of Moulins, 1566, was an important measure dealing with many aspects of the administration of justice, including feudal and ecclesiastical privilege.
15. This has not survived. In his will Bodin directed that many of his earlier or less important works should be destroyed. The De Imperio belongs to the Toulouse period, and was probably a sketch of parts of the Six books of the Commonwealth.
- Jean Bodin: Six Books of the Commonwealth: Contents
- Jean Bodin: Six Books of the Commonwealth: Introduction