BOOK I. the laws and while it is his duty to restrain each daring CHAP. IV. violator of them, ought he himself to trample them under foot?* 247. He the laws not If the prince be invested with the legislative power, he may, may change according to his wisdom, and when the public advantage refundamen- quires it, abolish those laws that are not fundamental, and make new ones. (See what we have said on this subject in the preceding chapter, § 34.) tal. 248. He ought to maintain and observe laws. But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquillity, and the firmest support of the sovethe existing reign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws; he ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV., one of the most absolute princes that ever reigned in Europe. "Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states."† 249. In he is subject But it is necessary to explain this submission of the prince what sense to the laws. First, he ought, as we have just seen, to follow to the laws, their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, "in his private affairs;" for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. In some countries, formal precautions are taken against the abuse of power.-"Reflecting among other things (says Grotius), that princes are often found to make no scruple of violating their promises under the stale pretext of the public good, the people of Brabant, in order to obviate that inconvenience, established the custom of never admitting their prince to the possession of the government without having previously made with him a covenant, that, whenever he may happen to violate the laws of the country, they shall be absolved from the oath of obedience they had sworn to him, until ample reparation be made for the outrages committed. The truth of this is confirmed by the example of past generations, who formerly made effectual use of arms and decrees to reduce within proper bounds such of their sovereigns as had transgressed the line of duty, whether through their own licentiousness or the artifices of their flatterers. Thus it happened to John the Second; nor would they consent to make peace with him or his successors, until those princes had entered into a solemn engagement to secure the citizens in the enjoyment of their privileges." Annals of the Netherlands, Book II. note, edit. A. D. 1797. † A treatise on the right of the queen to several states of the Spanish monarchy, 1667, in 12mo, Part II. p. 191. BOOK I. CHAP. IV. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity. of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others. the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of [ 17 ] them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws. The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state. cred and in violable. It is not sufficient that the prince be above the penal laws: 50. His even the interest of nations requires that we should go some-person is sathing farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defence. It is impossible even for the most just and wise monarch not to make malcontents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people.* Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.† Since the above was written, France has witnessed a renewal of those horrors. She sighs at the idea of having given birth to a monster capable of violating the majesty of kings in the person of a prince, whom the qualities of his heart entitle to the love of his subjects and the veneration of foreigners. [The author alludes to the attempt made by Damien to assassinate Louis In Mariana's work, above quoted, BOOK I. CHAP. IV. 251. But the nation may curb a tyrant, and with from his obedience. But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank) and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited draw itself those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the House of Orange; and Spain, after several vain [18] and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him; the people become free by the act of the sovereign, and can no longer view him but as a usurper who would load them with oppression. This truth is acknowledged by every sensible writer, whose pen is not enslaved by fear, or sold for hire. But some celebrated authors maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him, much less to curb him, and that naught remains for the nation but to suffer and obey with patience. This is founded upon the supposition that such a sovereign is not accountable to any person for the manner in which he governs, and that if the nation might control his actions and resist him where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose; that, if he abuses it, he does ill indeed, and wounds his conscience; but that his commands are not the less obligatory, as being founded on a lawful right to command; that the nation, by giving him absoulte authority, has reserved no share of it to itself, and has submitted to his discretion, &c. We might be content with answering, that vided it be done without obliging him, person who administered the poison.Ne cogatur tantum sciens aut imprudens sibi conscire mortem; quod esse nefas judicamus, veneno in potu aut cibo, quod hauriat qui perimendus est, aut simili alia retemperato. A fine reason, truly! Was Mariana disposed to insult the understandings of his readers, or only desirous of throwing a slight varnish over the detestable doctrine contained in that chapter?-Note, edit. A.D. 1797. BOOK I. in this light there is not any sovereign who is completely and fully absolute. But in order to remove all these vain subtle- CHAP. IV. ties, let us remember the essential end of civil society. Is it not to labour in concert for the common happiness of all? Was it not with this view that every citizen divested himself of his rights, and resigned his liberty? Could the society make such use of its authority as irrevocably to surrender itself and all its members to the discretion of a cruel tyrant? No, certainly, since it would no longer possess any right itself, if it were disposed to oppress a part of the citizens. When, therefore, it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin. If he becomes the scourge of the state, he degrades himself; he is no better than a public enemy, against whom the nation may and ought to defend itself; and if he has carried his tyranny to the utmost height, why should even the life of so cruel and perfidious an enemy be spared? Who shall presume to blame the conduct of the Roman senate, that declared Nero an enemy to his country? But it is of the utmost importance to observe, that this [ 19 ] judgment can only be passed by the nation, or by a body which represents it, and that the nation itself cannot make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them. It is the person of the sovereign, not that of an unnatural tyrant and a public enemy, that the interest of the nation declares sacred and inviolable. We seldom see such monsters as Nero. In the more common cases, when a prince violates the fundamental laws; when he attacks the liberties and privileges of his subjects; or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation; it may resist him, pass sentence on him, and withdraw from his obedience; but though this may be done, still his person should be spared, and that for the welfare of the state.* It Dissimulandum censeo quatenus Henrico hujus abnepote ob ignaviam salus publica patiatur, privatimque pravosque mores abdicato procerum corruptis moribus princeps contingat; suffragiis, primum Alfonsus ejus frater, alioquin si rempublicam in periculum recte an secus non disputo, sed tamen vocat, si patriæ religionis contemptor in tenera ætate rex est proclamatus: existit, neque medicinam ullam re- deinde defuncto Alfonso, Elisabetha cipit, abdicandum judico, alium sub- ejus soror, Henrico invito, rerum sumstituendum; quod in Hispania non mam ad se traxit, regio tantum nomine semel fuisse factum seimus: quasi fera abstinens dum ille vixit. Mariana, de irritata, omnium telis peti debet, cum, Rege et Regis Institut. Lib. I. c. iii. humanitate abdicata, tyrannum induit. Sic Petro rege ob immanitatem dejecto publice, Henricus ejus frater, quamvis ex impari matre, regnum obtinuit. Sic To this authority, furnished by Spain, join that of Scotland, proved by the letter of the barons to the pope, dated April 6, 1320, requesting him to pre BOOK I. is above a century since the English took up arms against CHAP. IV. their king, and obliged him to descend from the throne. A set of able, enterprising men, spurred on by ambition, took advantage of the terrible ferment caused by fanaticism and party spirit; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself discovered its former blindness. If, to this day, it still annually makes a solemn atonement, it is not only, from the opinion that the unfortunate Charles I. did not deserve so cruel a fate, but, doubtless, from a conviction that the very safety of the state requires the person of the sovereign to be held sacred and inviolable, and that the whole nation ought to render this maxim venerable, by paying respect to it when the care of its own preservation will permit. One word more on the distinction that is endeavoured to be made here in favour of an absolute sovereign. Whoever has well weighed the force of the indisputable principles we have established, will be convinced, that when it is necessary to resist a prince who has become a tyrant, the right of the people is still the same, whether that prince was made absolute by the laws, or was not; because that right is derived vail on the king of England to desist quam nemo, bonus nisi simul cum vita amittit. "In the year 1581" (says Grotius, Ann. Book III.) "the confederated provinces of the Netherlands-after having for nine years continued to wage war against Philip the Second, without ceasing to acknowledge him as their sovereign-at length solemnly deprived him of the authority he had possessed over their country, because he had violated their laws and privileges." The author afterwards observes, that "France, Spain herself, England, Sweden, Denmark, furnish instances of kings deposed by their people; so that there are at present few sovereigns in Europe whose right to the crown rests on any other foundation than the right which the people possess of divesting their sovereign of his power when he makes an ill use of it." Pursuant to this idea, the United Provinces, in their justificatory letters on that subject, addressed to the princes of the empire and the king of Denmark-after having enumerated the oppressive acts of the king of Spain, added-"Then, by a mode which has been often enough adopted even by those nations that now live under kingly government, we wrested the sovereignty from him whose actions were all contrary to the duty of a prince." Ibid.-Note, edit. A. D. 1797. |