Otho BOOK I. that nations should have suffered such odious procedures. We have slightly touched on this subject in §§ 145 and 146. CHAP. XII. The thirteenth century gives striking instances of it. IV. for endeavouring to oblige several provinces of Italy to submit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III. and his subjects absolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to resign the crown to Frederic II. John, king of England, endeavouring to maintain the rights of his kingdom in the election of an archbishop of Canterbury, found himself exposed to the audacious enterprises of the same pope. Innocent excommunicated the king-laid the whole kingdom under an interdict-had the presumption to declare John unworthy of the throne, and to absolve his subjects from their oath of fidelity; he stirred up the clergy against him-excited his subjects to rebel-solicited the king of France to take up arms to dethrone him-publishing, at the same time, a crusade against him, as he would have done against the SaraThe king of England at first appeared determined to defend himself with vigour; but soon losing courage, he suffered himself to be brought to such an excess of infamy, as to resign his kingdoms into the hands of the pope's legate, to receive them back from him, and hold them as a fief of the church, on condition of paying tribute.* cens. The popes were not the only persons guilty of such enormities: there have also been councils who bore a part in them. That of Lyons, summoned by Innocent IV., in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himself from the charges brought against him-threatening him with the thunders of the church if he failed to do it. That great prince did not give himself much trouble about so irregular a proceeding. He said "that the pope aimed at rendering himself both a judge and a sovereign; but that, from all antiquity, the emperors themselves had called councils, where the popes and prelates rendered to them, as to their sovereigns, the respect and obedience that was their due." emperor, however, thinking it necessary to yield a little to the superstition of the times, condescended to send ambassadors to the council, to defend his cause; but this did not prevent the pope from excommunicating him, and declaring him deprived of the crown. Frederic, like a man of a superior genius, laughed at the empty thunders of the Vatican, and proved himself able to preserve the crown in spite of the election of Henry, Landgrave of Thuringia, whom the ecclesiastical electors, and many bishops, had presumed to declare * Matthew Paris.-Turretin. Compend. Hist. Eccles. Secul. xiii. The [75] + HEISS'S History of the Empire, book ii. chap. xvi. BOOK I. king of the Romans-but who obtained little more by that CHAP. XII. election, than the ridiculous title of king of the priests. 2.155. 10. The thing to of justice. I should never have done, were I to accumulate examples; but those I have already quoted are but too many for the honour of humanity. It is an humiliating sight to behold the excess of folly to which superstition had reduced the nations of Europe in those unhappy times.* By means of the same spiritual arms, the clergy drew every thing to themselves, usurped the authority of the trielergy draw-bunals, and disturbed the course of justice. They claimed ing every a right to take cognisance of all causes on account of sin, of themselves, which (says Innocent III.†) every man of sense must know and disturb that the cognisance belongs to our ministry. In the year ing the order 1329, the prelates of France had the assurance to tell King Philip de Valois, that, to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere.‡ And accordingly, it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that as dioceses were not always confined to the extent of the [76] political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it, and stipulated, in their treaties, that none of the confederates should be sum Sovereigns were sometimes found, who, without considering future consequences, favoured the papal encroachments when they were likely to prove advantageous to their own interests. Thus, Louis VIII., king of France, wishing to invade the territories of the Count of Toulouse, under pretence of making war on the Albigenses, requested of the pope, among other things, "that he would issue a bull declaring that the two Raymonds, father and son, together with all their adherents, associates, and allies, had been and were deprived of all their possessions." VELLY'S Hist. of France, vol. iv. p. 33. Of a similar nature to the preceding is the following remarkable fact:-Pope Martin IV. excommunicated Peter, king of Arragon, declared that he had forfeited his kingdom, all his lands, and even the regal dignity, and pronounced his subjects absolved from their oath of allegiance. He even excommunicated all who should acknowledge him as king, or perform towards him any of the duties of a subject. He then offered Arragon and Catalonia to the Count de Valois, second son of Philip the Bold, on condition that he and his successors should acknowledge themselves vassals of the holy see, take an oath of fealty to the pope, and pay him a yearly tribute. The king of France assembled the barons and prelates of his kingdom, to deliberate on the pope's offer, and they advised him to accept of it. "Strange blindness of kings and their counsellors!" exclaims, with good reason, a modern historian; "they did not perceive, that, by thus accepting kingdoms from the hands of the pope, they strengthened and established his pretensions to the right of deposing themselves." VELLY'S History of France, vol. vi. p. 190. † In cap. Novit. de Judicis. See Leibnitii Codex, Juris Gent. Diplomat. Dipl. LXVII. 2 9. BOOK I. moned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice CHAP. XII. that were observed in the country.* We find in history, that the Swiss on many occasions repressed the encroachments of the bishops and their judges. Over every affair of life they extended their authority, under pretence that conscience was concerned. They obliged new-married husbands to purchase permission to lie with their wives the first three nights after marriage.† drawn to This burlesque invention leads us to remark another abuse, 156. manifestly contrary to the rules of a wise policy, and to the 11. Money duty a nation owes to herself; I mean the immense sums Rome. which bulls, dispensations, &c., annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, suffered irreparable losses. 66 was and customs contrary to Finally, that independent authority intrusted to ecclesi- 157. astics, who were often incapable of understanding the true 12. Laws maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a the welfare visionary fanaticism, by empty speculations, and notions of of states. a chimerical and overstrained purity,-that authority, I say, produced, under the pretence of sanctity, laws and customs. that were pernicious to the state. Some of these we have noticed; but a very remarkable instance is mentioned by Grotius. "In the ancient Greek church," says he, long observed a canon, by which those who had killed an enemy in any war whatsoever were excommunicated for three years:" a fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world; she adorned her bravest warriors with crowns. The empire, having embraced Christianity, soon became a prey to barbarians; her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness. BOOK I. CHAP. XIII. 2158. A na to make justice reign. CHAP. XIII. OF JUSTICE AND POLITY. NEXT to the care of religion, one of the principal duties tion ought of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§ 15), that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainty. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavour to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened. 2 159. To establish There are two methods of making justice flourish-good laws, and the attention of the superiors to see them executed. good laws. In treating of the constitution of a state (Chap. III.), we have already shown that a nation ought to establish just and wise laws, and have also pointed out the reasons why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights, without being misled by selfdeception. Sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and, since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.* It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dis * See a dissertation on this subject, in the Loisir Philosophique, p. 71. CHAP. XIII. pense justice. The legislator should assist the understanding BOOK I. of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again, are the civil laws. them. [ 78 ] The best laws are useless, if they be not observed. The 3 160. To nation ought then to take pains to support them, and to cause enforce them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity. of the prince We have already observed (§ 41) that the sovereign, who 3 161. represents a nation and is invested with its authority, is also Functions charged with its duties. An attention to make justice flourish and duties in the state must then be one of the principal functions of the in this reprince; and nothing can be more worthy of the sovereign spect. majesty. The emperor Justinian thus begins his book of the Institutes: Imperatoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, et bellorum et pacis, recte possit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body,-it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty. justice. The executive power naturally belongs to the sovereign, 162. How -to every conductor of a people: he is supposed to be in- he is to vested with it, in its fullest extent, when the fundamental dispense laws do not restrict it. When the laws are established, it is the prince's province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible in a great kingdom. appoint en The best and safest method of distributing justice is by ? 163. He establishing judges, distinguished by their integrity and ought to knowledge, to take cognisance of all the disputes that may lightened arise between the citizens. It is impossible for the prince to and upright take upon himself this painful task: he cannot spare sufficient judges. time either for the thorough investigation of all causes, or |