we have already alleged in treating of civil caufes, and which are of ftill greater weight in regard to thofe of a criminal nature,— to appear in the character of a judge pronouncing fentence on a wretched criminal, would ill become the majesty of the fovereign, who ought in every thing to appear as the father of his people. It is a very wife maxim commonly received in France, that the prince ought to referve to himself all matters of favour, and leave it to the magiftrates to execute the rigour of justice. But then juftice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magiftrates; he will oblige them to obferve fcrupulously the established forms, and will himself take care never to break through them. Every fovereign who neglects or violates the forms of juftice in the prosecution of criminals, makes large ftrides towards tyranny: and the liberty of the citizens is at an end, when once they ceafe to be certain that they cannot be condemned, except in purfuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accufed party to commiffioners chofen at the pleasure of the court, was the tyrannical invention of fome minifters who abused the authority of their master. By this irregular and odious procedure, a famous minifter always fucceeded in deftroying his enemies. A good prince will never give his confent to fuch a proceeding, if he has fufficient discernment to foresee the dreadful abuse his minifters may make of it. If the prince ought not to pafs fentence himself,-for the fame reason, he ought not to aggravate the fentence paffed by the judges.

The very nature of government requires that the executor of § 173. the laws fhould have the power of dispensing with them, when Right of this may be done without injury to any perfon, and in certain pardoning. particular cafes where the welfare of the ftate requires an exception. Hence the right of granting pardons is one of the attributes of fovereignty. But, in his whole conduct, in his feverity as well as in his mercy, the fovereign ought to have no other object in view than the greater advantage of fociety. A wife prince knows how to reconcile juftice with clemency, the care of the public fafety, with that pity which is due to the unfor

tunate.

police.

The internal police confifts in the attention of the prince and § 174. magiftrates to preferve every thing in order. Wife regulations Internal ought to prescribe whatever will beft contribute to the public fafety, utility and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wife police, the fovereign accuftoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magiftrates of Holland are faid to poffefs extraordinary talents in this refpect:-a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.

G 2

Laws

tularies (conformably to the thirteenth canon of the twelfth council of Toledo, held in the year 681) enjoined the priests to admit to their converfation all thofe whom the king's majefty had received into favour, or entertained at his table, though they had been excommunicated by them, or by others,-in order that the church might not appear to reject or condemn those whom the king was pleafed to employ in his fervice *.

§ 154. The excommunications pronounced against the fovereigns 9. And of themselves, and accompanied with the abfolution of their subfovereigns themselves, jects from their oaths of allegiance, put the finishing ftroke to this enormous abuse; and it is almoft incredible that nations fhould have fuffered fuch odious procedures. We have flightly touched on this fubject in §§ 145 and 146. The thirteenth century gives striking inftances of it. Otho IV. for endeavouring to oblige feveral provinces of Italy to fubmit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III. and his fubjects abfolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to refign 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 expofed to the audacious enterprises of the fame pope. Innocent excommunicated the king, laid the whole kingdom under an interdict,-had the prefumption to declare John unworthy of the throne, and to abfolve his fubjects from their oath of fidelity: he ftirred up the clergy against him,excited his fubjects to rebel,-folicited the king of France to take up arms to dethrone him,-publishing at the same time a crufade against him, as he would have done against the Saracens. The king of England at first appeared determined to defend himself with vigour: but foon lofing courage, he suffered himfelf to be brought to fuch an excefs of infamy, as to refign 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 t

The popes were not the only perfons guilty of fuch enormities: there have also been councils who bore a part in them. That of Lyons, fummoned by Innocent IV. in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himfelf 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 fo irregular a proceeding. He faid, "that the "pope aimed at rendering himself both a judge and a fovereign; "but that, from all antiquity, the emperors themselves had "called councils, where the popes and prelates rendered to "them, as to their fovereigns, the refpect and obedience that

*See Letters on the Pretenfions of the Clergy.

Matthew Paris.-Turretin. Compend. Hift. Ecclef, Sacul. XIII.

"was their due." The emperor, however, thinking it neceffary to yield a little to the fuperftition of the times, condefcended to fend ambaffadors 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 fuperior genius, laughed at the empty thunders of the Vatican, and proved himself able to preferve the crown in fpite of the election of Henry, Landgrave of Thuringia, whom the ecclefiaftical electors, and many bithops, had prefumed to declare king of the Romans,-but who obtained little more by that election, than the ridiculous title of king of the priests.

I fhould never have done, were I to accumulate examples: but thofe I have already quoted are but too many for the honour of humanity. It is an humiliating fight to behold the excefs of folly to which fuperftition had reduced the nations of Europe in thofe unhappy times t.

felves, and

By means of the fame fpiritual arms, the clergy drew every 155. thing to themselves, ufurped the authority of the tribunals, and tc. The clergy difturbed the courfe of juftice. They claimed a right to take drawing cognisance of all caufes, on account of fin, of which (fays Inno- every thing cent III.) every man of sense must know that the cognisance be- to thenlongs to our minifiry. In the year 1329, the prelates of France disturbing had the affurance to tell king Philip de Valois, that, to prevent the order caufes of any kind from being brought before the ecclefiaftical of justice. courts, was depriving the church of all its rights, omnia ecclefiarum jura tollere §. And accordingly it was their aim to have to themselves the decifion of all difputes. They boldly oppofed the civil authority, and made themfelves feared by proceeding in the way of excommunication. It even happened fometimes, that, as diocefes were not always confined to the extent of the

HEISS's Hiftory of the Empire, Book II. Chap. XVI,

f

+ Sovereigns were fometimes found, who, without confidering future confequences, favoured the papal ncroachments when they were likely to prove advantageous to their own interefts. Thus Louis VIII. king of France, wishing to invade the teritories of the count of Toulouse, under pretence of making war on the Albigenfes, requested of the pope, among other things, "that he would iflue a bull, declaring that the two Raymonds, father and fon, together with all their adherents, afiociates, and allies, had been and were deprived of all their poffeffions." VELLY's Hift. of France. Vol V. p. 33. Of a fimilar 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 fubjects abfolved from their oaths of allegiance. He even excommunicated all who fhould acknowledge him as king, or perform towards him any of the duties of a fubject. He then offered Arragon and Catalonia to the count de Valois, fecond fon of Philip the Bold, on condition that he and his fucceffors fhould acknowledge themselves vaffals of the holy fee, take an oath of fealty to the pope, and pay him a yearly tribute. The king o France affembled the barons and prelates of his kingdom to deliberate on the pope's offer; and they advised him to accept it :-" Strange blindnets of kings and their counfellors!" exclaims, with good reason, a modern hiftorian: "they did not perceive, that, by thus accepting kingdoms from the hands of the pope, they ftrengthened and established his pretenfions to the right of depofing themselves." VELLY'S Hift. of France. Vol. VI. p. 199,

In cap. Novit. de Judicis.

Bec Leibnitii Codex Juris Gent. Diplomat. Dipl. LXVII. § 9.

political

§ 156.

drawn to

Rome.

political territory, a bishop would fummon foreigners before his tribunal, for caufes purely civil, and take upon him to decide them, in manifeft violation of the rights of nations. To fuch a height had the diforder arifen three or four centuries ago, that our wife ancestors thought themselves obliged to take serious measures to put a stop to it; and ftipulated in their treaties, that none of the confederates fhould be fummoned before fpiritual courts, for money debts, fince every one ought to be contented with the ordinary modes of juftice that were observed in the country*. We find in history that the Swifs on many occafions repreffed the encroachments of the bishops and their judges.

Over every affair of life they extended their authority, under pretence that confcience was concerned. They obliged new-married husbands to purchase permiffion to lie with their wives, the first three nights after marriage t.

This burlefque invention leads us to remark another abuse, 11. Money manifeftly contrary to the rules of a wife policy, and to the duty a nation owes to herself,-I mean the immenfe fums, which bulls, difpenfations, &c. annually drew to Rome, from all the countries in communion with her. How much might be said on the fcandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, fuffered irreparable loffes.

§ 157. 12. Laws

and customs

of states.

Finally, that independent authority intrufted to ecclefiaftics, who were often incapable of understanding the true maxims of contrary to government, or too careless to take the trouble of ftudying them, the welfare and whofe minds were wholly occupied by a visionary fanaticifm, by empty fpeculations, and notions of a chimerical and overftrained purity, that authority, I fay, produced, under the pretence of fanctity, laws and customs that were pernicious to the ftate. Some of these we have noticed: but a very remarkable instance is mentioned by Grotius. "In the ancient Greek church," fays he, "was long obferved a canon, by which those who had "killed an enemy in any war whatfoever, were excommuni"cated for three years "A fine reward decreed for the heroes who defended their country, inftead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world:-fhe adorned her braveft warriors with crowns. The empire, having embraced christianity, foon became a prey to barbarians:-her fubjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themfelves purfuing the path to heaven, and actually found themselves in the high road to riches and greatness.

*Ibid. Alliance of Zurich with the cantons of Uri, Schweitz, and Underwald, dated May 1, 1351, § 7.

+ See A Regulation of Parliament in an arret of March 19, 1409. Spirit of Laws. Thefe (fays Montefquieu) were the very best nights they could pitch upon : they would have made no great profit of any other.

De Jure Belli & Pacis, Lib. II. Cap. XXIV. He quotes Bafil ad Amphilorb. X. 13. Zonaras in Niceph. Phoc, Vol. III.

CHAP.

NEXT to the care of religion, one of the principal duties of a nation relates to juftice. They ought to employ their utmoft attention in caufing it to prevail in the ftate, and to take proper meafures for having it difpenfed to every one in the most certain, the most speedy, and the leaft burthenfome manner. This obligation flows from the object proposed by uniting in civil fociety, and from the focial compact itself. We have feen ($15) that men have bound themselves by the engagements of fociety, and confented to diveft 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 juftice prevail. This attention the owes to her own happiness, repose, and prosperity. Confufion, diforder, and defpondency, will foon arife in a ftate, when the citizens are not fure of eafily and fpeedily obtaining juftice in all their difputes without this, the civil virtues will become extinguished, and the fociety weakened.

§ 158. A nation ought to uju make juftice reign.

There are two methods of making juftice flourish,-good laws, and the attention of the fuperiors to fee them executed. In To establifa treating of the conftitution of a state (Chap. III.) we have al- good laws. ready fhewn, that a nation ought to eftablifh juft and wife laws, and have alfo pointed out the reafons, why we cannot here enter into the particulars of thofe laws. If men were always equally juft, equitable, and enlightened, the laws of nature would doubt lefs be fufficient for fociety. But ignorance, the illufions of felflove, and the violence of the paffions, too often render these facred laws ineffectual. And we fee, in confequence, that all well-governed nations have perceived the neceflity of enacting pofitive laws. There is a neceffity for general and formal regulations, that each may clearly know his own rights without being milled by felf-deception: fometimes even it is neceffary to deviate from natural equity, in order to prevent abufes and frauds, and to accommodate ourselves to circumstances; and fince the fenfation of duty has frequently fo little influence on the heart of man, a penal fanction becomes neceffary, 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 difcretion of those who are to difpenfe juftice. The legiflator fhould affift the understanding of the judges, force their prejudices and inclinations, and fubdue their will, by fimple, fixed, and certain rules. These again are the civil laws.

♦ See a differtation on this fubject, in the Loifir Philofophique, page 71.

The