BOOK I. CHAP. V. standing the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry's sister, and wife to Ferdinand, heir of Arragon. The grandees of Jane's party had provided her a powerful [ 30 ] resource, by negotiating a marriage between her and Alphonsus, king of Portugal: but as that prince was Jane's uncle, it was necessary to obtain a dispensation from the pope; and Pius II., who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Every thing succeeded with Isabella, and the unfortunate Jane took the veil, in order to secure, by this heroic sacrifice, the peace of Castile.* If the prince proceeds and marries, notwithstanding the pope's refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the Reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown? A great emperor, Lewis of Bavaria, boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find† two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his lifetime, nor imitated by his successors. Finally, there are states whose sovereign may choose his 68. Of successor, and even transfer the crown to another during his states called I take this historical passage from M. Du Port de Tertre's Conspiracies. To him I refer; for I have not the original historians by me. However, I do not enter into the question relating to the birth of Jane: this would here be of no use. The princess had not been declared a bastard according to the laws; the king acknowledged her for his daughter; and besides, whether she was or was not legitimate, the inconveniences resulting from the pope's refusal still remained the same with respect to her and the king of Portugal.Note, edit. 1797. † P. 154. Forma divortii matrimonialis inter Johannem filium regis Bohemiæ et Margaretham ducissam Karinthiæ. This divorce is given by the emperor on account of the impotency of the husband, per auctoritatem, says he, nobis rite debitam et conces- P. 156. Forma dispensationis super It is only human law, says the emperor, that hinders these marriages intra gradus affinitatis sanguinis, præsertim intra fratres et sorores. De cujus legis præceptis dispensare solummodo pertinet ad auctoritatem imperatoris seu principis Romanorum. He then opposes and condemns the opinion of those who dare to say that these dispensations depend on ecclesiastics. Both this act and the former are dated in the year 1341.Note, edit. A. D. 1797. patrimonial, BOOK I. life: these are commonly called patrimonial kingdoms or CHAP. V. states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shown (61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to [ 31 ] receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I., emperor of Russia, nominated his wife to succeed him, though he had children. 2 69. Every true sove unalienable. But when a prince chooses his successor, or when he cedes the crown to another,-properly speaking, he only nominates, reignty is by virtue of the power with which he is, either expressly or by tacit consent, intrusted-he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shown (§ 60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state. I know that many authors, and particularly Grotius,* give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a * Grotius De jure Belli et Pacis, lib. i. cap, iii. 3 12. SUCCESSIVE, OR HEREDITARY, ETC. BOOK I. people resisting a similar bequest of their sovereign, and Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people.* Neither are we to presume that he possesses a right to nominate his successor or surrender the sceptre to other hands,―a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people. powered to If the power of nominating his successor is intrusted to the 70. Duty sovereign, he ought to have no other view in his choice but of a prince the advantage and safety of the state. He himself was es- who is emtablished only for this end (§ 39); the liberty of transferring nominate his power to another could then be granted to him only with his sucthe same view. It would be absurd to consider it as a prero-cessor. gative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter's, a nation could not adopt a wiser plan, in order to ensure to itself a good government, than to intrust the prince, by a fundamental law, This would be a with the power of appointing his successor. much more certain method than the order of birth. The Roman emperors, who had no male children, appointed a successor by adoption. To this custom Rome was indebted for a The pope, opposing the attempt made upon England by Louis, the son of Philip Augustus, and alleging, as his pretext, that John had rendered himself a vassal of the holy see, received for answer, among other arguments, "that a sovereign had no right to dispose of his states without the consent of his to defend barons, who were bound them." On which occasion the French 99 BOOK I. series of sovereigns unequalled in history,-Nerva, Trajan, CHAP. V. Adrian, Antoninus, Marcus Aurelius. What princes! Does the right of birth often place such on the throne? 2 71. He at least a tacit ratification. We may go still farther, and boldly assert, that, as the must have safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect,at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appoint[33]ment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders. of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor. CHAP. VI. CHAP. VI. PRINCIPAL OBJECTS OF A GOOD GOVERNMENT; AND FIRST TO PROVIDE FOR THE NECESSITIES OF THE NATION. 872. The out the du ties of the AFTER these observations on the constitution of the state, object of so- let us now proceed to the principal objects of a good governciety points ment. We have seen above (§§ 41 and 42) that the prince, on his being invested with the sovereign authority, is charged sovereign. with the duties of the nation in relation to government. In treating of the principal objects of a wise administration, we at once show the duties of a nation towards itself, and those of the sovereign towards his people. A wise conductor of the state will find in the objects of civil society the general rule and indication of his duties. The society is established with the view of procuring, to those who are its members, the necessaries, conveniences, and even pleasures of life, and, in general, every thing necessary to their happiness,-of enabling each individual peaceably to enjoy his own property, and to obtain justice with safety and certainty, and, finally, of defending themselves in a body He ought to against all external violence (§ 15). The nation, or its conductor, should first apply to the business of providing for all the wants of the people, and producing a happy plenty of all the necessaries of life, with its conveniences and innnocent and laudable enjoyments. (25) As an easy life without lux procure plenty. (25) See the general doctrine, that the happiness of a people depends on the quantity of productive labour and employment, and the consequent return of produce and remuneration, discussed at large, 2 Malthus, 433; 2 Smith, W. N. 200; 2 Paley, Mor. Phil. 345; Sir J. Child on Trade, 167-8; and Tucker on Trade, part ii. sections 4, 7, 8; 1 Chitty's Commercial Law, 1, &c.-C. BOOK I. ury contributes to the happiness of men, it likewise enables them to labour with greater safety and success after their CHAP. VI. own perfection, which is their grand and principal duty, and one of the ends they ought to have in view when they unite in society. be a suffi To succeed in procuring this abundance of every thing, it 3 73. To is necessary to take care that there be a sufficient number of take care able workmen in every useful or necessary profession. (26) An attentive application on the part of government, wise re- cient numgulations, and assistance properly granted, will produce this ber of workeffect, without using constraint, which is always fatal to in- men. dustry. of those Those workmen that are useful ought to be retained in 2 74. To the state; to succeed in retaining them, the public authority prevent the has certainly a right to use contraint, if necessary. (27) emigration Every citizen owes his personal services to his country; and a that are mechanic, in particular, who has been reared, educated, and useful. instructed in its bosom, cannot lawfully leave it, and carry to a foreign land that industry which he acquired at home, unless his country has no occasion for him, (27) or he cannot there obtain the just fruit of his labour and abilities. Em- [ 34 ] ployment must then be procured for him; and, if, while able to obtain a decent livelihood in his own country, he would without reason abandon it, the state has a right to detain him. (28) But a very moderate use ought to be made of this right, and only in important or necessary cases. Liberty is the soul of abilities and industry: frequently a mechanic or an artist, after having long travelled abroad, is attracted home to his native soil by a natural affection, and returns more expert and better qualified to render his country useful services. If certain extraordinary cases be excepted, it is best in this affair to practise the mild methods of protection, encouragement, &c., and to leave the rest to that natural love felt by all men for the places of their birth. & As to those emissaries who come into a country to entice 2 75. Emisaway useful subjects, the sovereign has a right to punish them saries who severely, and has just cause of complaint against the power entice them by whom they are employed. In another place, we shall treat more particularly of the general question, whether a citizen be permitted to quit the (26) There were in England many this rule, 5 Geo. I. c. 27; 23 Geo. II. enactments enforcing this supposed c. 13; 14 Geo. III. c. 71; 4 Bla. Com. policy, and prohibiting various work- 160; but repealed by 5 Geo. IV. c. 97. men from leaving the kingdom. See 5 -C. Geo. I. c. 27; 23 Geo. II. c. 13; 14 Geo. III. c. 71; 4 Bla. Com. 160. But, according to more modern policy, these enactments were repealed by 5 Geo. IV. c. 97.-C. (27) See the English acts enforcing (28) See also the power of preventing a subject, or even a foreigner, going abroad. Flack v. Holm, 1 Jac. & Walk. Rep. 405, and post, 222, and Book II. ? 108.-C. away. |