The Law of War and Peace (1625)
by Hugo Grotius
Distinction Between Public and Private War;
Explanation of Sovereignty
I. Division of war into public and private.
1. THE first and most essential division of war is that into public war, private war, and mixed war.
A public war is that which is waged by him who has lawful authority to wage it; a private war, that which is waged by one who has not the lawful authority; and a mixed war is that which is on one side public, on the other side private. Let us deal first with private war, as the more ancient.
2. That private wars in some cases may be waged lawfully, so far as the law of nature is concerned, is, I think, sufficiently clear from what was said above, when we showed that the use of force to ward off injury is not in conflict with the law of nature. But possibly some may think that after public tribunals had been established private wars were not permissible. For although public tribunals are the creation not of nature but of man, it is, nevertheless, much more consistent with moral standards, and more conducive to the peace of individuals, that a matter be judicially investigated by one who has no personal interest in it, than that individuals, too often having only their own interests in view, should seek by their own hands to obtain that which they consider right; wherefore equity and reason given to us by nature declare that so praiseworthy an institution should have the fullest support. Says Paul the jurist, ‘Individuals must not be permitted to do that which the magistrate can do in the name of the state, in order that there may be no occasion for raising a greater disturbance.’ ‘The reason,’ King Theodoric said, ‘why laws were clothed with a reverential regard, was that nothing might be done by one’s own hand, nothing on individual impulse. For what difference is there between tranquil peace and the hurly-burly of war, if controversies between individuals are settled by the use of force? ‘
The laws term it a use of force ‘when an individual tries to enforce his claim to what he thinks is due him without having recourse to a judge.’
II. The proposition, that according to the law of nature not all private war is impermissible since the establishment of courts, is defended, illustrations being added.
1. It is surely beyond doubt that the licence which was prevalent before the establishment of courts has been greatly restricted, Nevertheless there are circumstances under which such licence even now holds good, that is, undoubtedly, where judicial procedure ceases to be available. For the law which forbids a man to seek to recover his own otherwise than through judicial process is ordinarily understood as applicable only where judicial process has been possible.
Now judicial procedure ceases to be available either temporarily or continuously. It ceases to be available temporarily when one cannot wait to refer a matter to a judge without certain danger or loss. It ceases to be available continuously either in law or in fact: in law, if one finds himself in places without inhabitants, as on the sea, in a wilderness, or on vacant islands, or in any other places where there is no state; in fact, if those who are subject to jurisdiction do not heed the judge, or if the judge has openly refused to take cognizance.
2. What we said, that even after the establishment of courts not all private wars were in conflict with the law of nature, can be supported also from the law which was given to the Jews; for therein through the agency of Moses God said (Exodus 22:2): ‘If the thief be found breaking in, and be smitten so that he dieth, there shall be no bloodguiltiness for him. If the sun be risen upon him, there shall be bloodguiltiness for him.’
It seems clear that this ordinance, which makes so careful a distinction, not only assures impunity but also explains the law of nature, and that it is not founded upon a special divine mandate, but grounded in common equity. Hence, we see, other nations also followed it. Well known is the provision of the Twelve Tables, undoubtedly taken from the ancient Attic law: ‘If a theft has been committed at night, and any one has killed the thief, be it that the thief was rightly slain.’ Thus by the laws of all peoples known to us the person who in peril of his life has by means of arms defended himself against an assailant is adjudged innocent. An agreement so manifest furnishes in itself the proof that in it there is nothing in conflict with the law of nature.
III. The proposition is defended that private war in some cases is permissible even according to the law of the Gospel, objections being met.
1. In the case of the volitional divine law in its more perfect form, that is, the law of the Gospel, a greater difficulty presents itself. I do not doubt that God, Who has over our lives a more absolute right than we ourselves, might have required of us so great a degree of forbearance that, as individuals, when confronted with danger, it would be our duty to allow ourselves to be killed rather than to kill. But did God purpose to bind us in so extreme a fashion? That is the point which we are to investigate.
On the affirmative side, two passages are commonly brought forward to which, in the discussion of the general question, we have already referred. They are: ‘But I say unto you, Resist not him that is evil’ (Matthew 5:39); and ‘Avenge not yourselves, beloved’ (Romans 12:19), where the Latin translation has ‘Defend not yourselves, beloved.’ A third passage is in the words of Christ to Peter: ‘Put up again thy sword into its sheath; for all they that take the sword shall perish with the sword.’ In this connection some add also the example of Christ, who died for his enemies (Romans 5:8, 10).
2. Among the early Christians there was no lack of those who did not indeed disapprove of public war, but who thought that in the case of an individual self-defense was forbidden. The passages of Ambrose favorable to war we quoted above. Familiar to all are the statements of Augustine, which are even more numerous and more clear. But the same Ambrose says: ‘And perchance He said to Peter, who offered him two swords, ‘ It is enough,’ as if He had said that the use of the sword in self-defense was permissible up to the time of the Gospel; with the implication that the teaching of the law stressed equity, while the teaching of the Gospel stressed truth.’ And in another passage he adds: ‘The Christian, even if he fall in the way of an armed brigand, cannot strike in turn one who strikes him, from fear that, while defending his safety, he mar his piety.’
‘I find no fault,’ says Augustine, ‘with the law which permits the slaying of such people’ (brigands and others who assault with violence), ‘but I do not see how to justify those who put them to death.’ In another connection he declares: ‘The idea of killing men in order not to be killed by them is not acceptable to me, unless, perchance, in the case of a soldier or of a public functionary acting not for himself but on behalf of others, in the exercise of a lawful authority.’ It is plain enough, from Basil’s second letter to Amphilochius, that he held the same view.’
3. The contrary opinion, that no such degree of forbearance is required, is certainly more common, and also seems to me more true. For in the Gospel we are bidden to love our neighbor as ourselves, not above ourselves; further, if a like evil threatens, we are not forbidden to look out for ourselves in preference to others, ‘as we showed above on the authority of Paul when he was explaining the rule of kindness.
Perhaps some one may press the point and say: ‘Even if I may be able to give the preference to my own advantage over the advantage of my neighbor, this would not hold in the case of unequal advantages; wherefore I ought rather to give up my life than to suffer that my assailant fall into eternal damnation.’ But the answer may be made that in many cases even the man who is attacked has need of time for repentance, or probably thinks he has; and the assailant also may have time for repentance before death. Further, from the point of view of morals it is not clear that that ought to be accounted a danger into which a man has thrown himself, and from which he can extricate himself.
4. Up to the very last some of the Apostles, under the eye of Christ and with his knowledge, certainly seem to have made their journeys armed with swords. From Josephus we learn that other Galileans, when hastening from their country toward Jerusalem, did the same thing, because the roads were infested with highwaymen; and he has reported a similar practice on the part of the Essenes, the most inoffensive of men. Thus it came about that when Christ was saying that the time was at hand when even a garment should be sold in order to buy a sword (Luke 22:36), the Apostles at once answered that among their company there were two swords; and in that company there were none except Apostles.
What Christ said, then, does not in truth embody a command; it is, rather, a proverbial expression, indicating that extremely serious dangers threatened. This is clearly shown by the contrasting reference to the earlier time (verse 35), which had been safe and propitious. Nevertheless the words are such as plainly to suggest what was customary, and what the Apostles considered permissible.
5. Rightly did Cicero declare that ‘It would surely not be permissible to have swords, if it were not in any way permissible to use them.’ Again, the precept ‘Resist not him that is evil’ is not more general in its application than that which follows, ‘Give to every one that asketh thee.’ The latter, nevertheless, is modified by the restriction, provided that we do not overburden ourselves. Nothing is added to the precept about giving which restricts its application, and it is limited by the sense of equity alone; but the precept about not resisting carries with it an explanation in the concrete example of a slap. It is, then, to be understood that the obligation not to offer resistance is absolutely binding upon us only when the injury which threatens us is either a slap, or something in the same class. Otherwise it would have been more in accordance with what is right to say: ‘Resist not him that doeth injury, but give up life itself rather than to make use of weapons.’
6. In the words of Paul to the Romans, ‘Avenge not yourselves,’ the Greek has the meaning ‘avenge,’ not ‘defend’; so also Judith 1:11, and 2:1; Luke 18:7, 8, and 21:22; 2 Thessalonians 1:8; 2 Peter 2:14; Romans 13:4; 1 Thessalonians 4:6.
This is made perfectly plain by the context; for the injunction ‘Render to no man evil for evil’ had preceded, and these words are applicable only to revenge, not to defense. And in support of his contention Paul cites the sentence from Deuteronomy: ‘Justice is mine, I will repay,’ where the Hebrew has ‘to me also vengeance.’ Both the proper use of the term in Hebrew shows that vengeance is meant, and the meaning of the passage does not permit us to suppose that defense can be referred to.
7. What was said to Peter does in fact contain a prohibition of the use of the sword, but not of such use in defense. Peter did not have need to defend himself; for in regard to his disciples Christ had already said (John 18:8, 9): ‘Let these go their way, that the word might be fulfilled which he spake, of those whom thou hast given me I lost not one.’ And there was no need to defend Christ, for he did not wish to be defended. So in the narrative of John Christ adds the reason for the prohibition (John 18:11): ‘The cup which the Father hath given me, shall I not drink it?’ And in Matthew he says: ‘How then should the Scriptures be fulfilled, that thus it must be?’ Peter, then, being impetuous, was impelled by a desire for revenge, not for defense. Further, he was taking up arms against those who were corning as representatives of the public authority; whether under any circumstances resistance should be offered to those representing the public authority is a question by itself, to which we must return later.
Now the sentence which our Lord adds, ‘All they that have taken up the sword shall perish by the sword,’ is either a proverb taken from common usage, signifying that bloodshed is provoked by bloodshed, and that in consequence the use of weapons is never free from hazard; or, in accordance with the opinion held by Origen, Theophylactus, Titus, and Euthymius, it means, that we ought not to forestall God by taking the vengeance which He himself will sufficiently exact in His own time. Evidently of such import is the verse in Revelation (13:10): ‘If any man shall kill with the sword, with the sword must he be killed. Here is the patience and the faith of the saints.’ In agreement therewith is the comment of Tertullian: ‘An all-sufficing Depositary for our patience is God. If you leave with Him a wrong, He is the avenger; if suffering, He is the physician; if death, He raises from the dead. How great is the privilege of patience, to have God as her Debtor!’ At the same time, in these words of Christ there seems to be a prophecy of the punishment which the sword of the Romans was to exact from the blood-guilty Jews.
8. As for the example of Christ, when we are told that He died for His enemies the rejoinder may be made that all the acts of Christ exemplify virtue in fullest measure, that it is praiseworthy to imitate them, so far as possible, and that such imitation will not fail of its reward; nevertheless not all His acts are of such a character that they proceed from a law, or themselves establish a law. For in dying for His enemies and for the ungodly Christ acted not in obedience to any law, but in accordance with a special promise and covenant, as it were, made with the Father; if He should thus die the Father promised to Him not only supreme glory but a people that should endure forever (Isaiah 53:10). That in other respects this act is as it were unique, to which scarcely any parallel can be found, Paul shows (Romans 5:7). Christ, furthermore, bids us expose our lives to danger not for any and every person, but on behalf of them that share the same profession (1 John 3:16).
9. The opinions which are cited from the Christian writers seem in part to embody counsel and exhortation to a lofty purpose rather than a rigid rule; in part they are the personal views of the writers themselves, and do not reflect opinions shared by the whole Church. In fact in the most ancient canons, which are called Apostolic, only he is cut off from the communion who in a quarrel has killed his opponent with the first blow ‘on account of the excess of passion.’ This opinion Augustine himself, whom we have quoted for the opposite view, seems to approve (On Exodus, qu. 84).
IV. Division of public war into formal and less formal.
1. Public war is either formal, according to the law of nations, or less formal.
The word ‘formal’ I use here as equivalent to ‘legal’ (iustum) in the sense in which we speak of a legal will (iustum testamentum) as distinguished from codicils, and a legal marriage as distinguished from the union of slaves (contubernium). This does not mean that it is not permissible for any one to make codicils who may desire to do so, or for a slave to have a woman living with him (in contubernio); but it does mean that from the point of view of the civil law the formal will and the formal marriage have certain peculiar effects. It is useful to note this distinction; for many, having a wrong understanding of the word ‘legal’ (iustum) in such a connection think that all wars, to which the adjective ‘legal’ (iusta) is inapplicable, are under condemnation as inconsistent with justice or not permissible.
In order that a war may be formal, according to the law of nations, two conditions are requisite: first, that on both sides it be waged under the authority of the one who holds the sovereign power in the state; then, that certain formalities be observed, which we shall discuss later in the proper connection. Since both conditions are conjointly requisite, one without the other does not suffice.
2. A less formal public war may lack the formalities referred to, may be waged against private persons, and on the authority of any public official. And surely if the matter be viewed without reference to the laws of particular states, it would seem that every public official has the right to wage war for the protection of the people entrusted to his charge, and also in order to maintain his jurisdiction if assailed by force. But because the whole state is endangered by war, provision has been made by the laws of almost every state that war may be waged only under the authority of him who holds the sovereign power in the state.
Such a provision is to be found in the last book of Plato On Laws. In the Roman law he is declared guilty of treason who has waged war, or made a levy, or brought together an army without the order of the emperor; the Cornelian Law, proposed by Lucius Cornelius Sulla, had said, ‘without the order of the people.’ In the Code of Justinian, there is extant an imperial constitution of Valentinian and Valens bearing on the same point: ‘No person shall have the authority to inaugurate a movement of arms of any sort without our knowledge and without consulting us.’ Here belongs the statement of Augustine: ‘The order which is according to nature and adapted to the maintenance of peace among mortals demands that the authority and the decision in respect to commencing war reside in those who hold the chief authority.’
3. But as all statements, no matter how general, are to be interpreted in the light of justice, so also is this law. For in the first place it cannot be doubted that it is permissible for a public official, who has proper authority over a district, through his subordinates to restrain by force a few that are disobedient, whenever there is no need of larger forces for the purpose, and danger does not threaten the state.
Again, if the danger is so pressing that time does not permit consultation with him who has the supreme authority in the state, in that case also necessity will make an exception. Of such a justification Lucius Pinarius, who was in command of the garrison at Enna, in Sicily, availed himself. Having learned with certainty that the people of the town were planning to revolt to the Carthaginians, he had them massacred, and so held possession of Enna. When no such necessity was present, Franciscus de Victoria presumed to ascribe to citizens of towns the right to carry on war in order to redress wrongs which the king had neglected to prosecute; but his view is deservedly rejected by others.
V. Whether there may be a public war waged by the authority of a public official not having sovereign power, and when.
1. The jurists, however, are by no means agreed regarding the circumstances under which minor public officials may have the right to inaugurate a movement of arms, or whether such a war should be called a public war. The affirmative view is held by some, the negative by others.
Truly if we use the word public as including whatever is done by the authority of an official, there is no doubt that such wars are public, and consequently those who under conditions of this sort oppose public officials expose themselves to the punishment awaiting men that stubbornly resist their superiors. But if the word public is understood in a higher sense as characterizing that which is done with due formality, as beyond question this word often is, such wars are not public, for the reason that both the decision of the sovereign power and other conditions are necessary for the fulfillment of the legal requirements involved. And I am not affected by the consideration that even in disturbances of the kind under consideration men who resist authority are ordinarily deprived of their property, which may even be turned over to the soldiers. For such occurrences are not so peculiar to formal war that they may not also take place under other conditions.
2. This situation, moreover, may arise, whereby in an empire having a wide extent of territory, subordinate authorities may have a delegated power of beginning war. If such a situation does arise, we are to consider that the war is actually being waged by virtue of the sovereign authority; for he who vests another with the right to do anything is himself regarded as doer of it.
3. A more controverted question is whether, in case such an authorization has not been given, the presumption that such an authorization is intended will be sufficient.
The affirmative view ought not, I think, to be conceded. For it is not enough to consider what under such conditions would be acceptable to him who holds the sovereign power if he could be consulted; the real point to be considered is, what he would wish to have done without consulting him in a matter admitting delay, or of doubtful expediency, if a general law covering the case were to be passed. For although in a particular instance a consideration influencing the decision of the head of the state may seem, if examined from a particular point of view, to be inapplicable, yet, generally speaking, the consideration arising from the desire to avoid danger does not cease to apply. This general consideration cannot have its proper weight if every public official takes the decision of such questions into his own hands.
4. Not without just reason, then, was Gnaeus Manlius accused by his legionary commanders because he had made war upon the Galatians without the authorization of the Roman people. For although there had been legions of Gauls in the army of Antiochus, nevertheless, after peace had been made with Antiochus, the question, whether punishment for that offence should be visited upon the Galatians, was not for Gnaeus Manlius to decide but for the Roman people.
Cato wished to have Julius Caesar delivered up to the Germans because he had made war on them; but I believe that he had in mind not so much the question of right as a desire to free the city from the fear of a prospective master. The Germans, in fact, had helped the Gauls, who were enemies of the Roman people, and consequently they had no reason to complain that a wrong had been done to them, provided the Roman people had a just cause for making war on the Gauls. But Caesar ought to have been satisfied with driving the Germans out of Gaul, the province which had been assigned to him; he ought not to have carried war against them into their own territory without first consulting the Roman people, especially since there was no imminent danger from that source. The Germans therefore did not have the right to demand that Caesar be surrendered to them, but the Roman people had the right to punish him, on grounds clearly similar to those which the Carthaginians set forth in their answer to the Romans:
I consider that the question at issue is not whether Saguntum was attacked in accordance with a decision of an individual or of the state, but whether it was attacked rightfully or wrongfully. For the question whether our citizen acted in accordance with our decision, or his own, is our business, and to us belongs the punishment of a citizen of ours. The subject of discussion between you and us is merely, whether under our treaty the attack was permissible.
5. Marcus Tullius Cicero defended the action of Octavius and of Decimus Brutus in taking up arms against Antony on their own initiative. And yet, even if it were settled that Antony deserved to be treated as an enemy, they ought to have waited for the decision of the senate and the Roman people as to whether it was in the public interest to overlook the action of Antony or to avenge it; to come to terms of peace, or rush to arms. No one, in fact, is compelled to avail himself of a right of which the use frequently involves the risk of loss. Again, even if Antony were adjudged a public enemy, it was for the senate and the Roman people to decide to whom they would prefer that the conduct of the war should be entrusted. Thus, when Cassius requested auxiliary troops of the Rhodians in accordance with the treaty, they answered that they would send the forces if the Roman senate should so direct.
6. This illustration and there are many others may serve to remind us that we are not to receive with approval everything which authors, no matter how famous, may, tell us; they are under the influence often of their times, often of their feelings, and they fit ‘their measuring-rule to the stone.’ Wherefore in these matters we must make every effort to use a discriminating judgement and not allow ourselves rashly to seize upon something as a precedent which can be exculpated rather than praised. In the use of such a method vicious errors are commonly committed.
7. Since, then, it has been said that a public war ought not to be waged except by the authority of him who holds the sovereign power, for the understanding both of this subject and of questions relating to formal war, and consequently for the understanding of many other questions, it will be necessary to understand what sovereignty is, and who hold it. This inquiry is all the more necessary because learned men of our own age, treating the matter from the point of view of usage under present conditions rather than from that of the truth, have added greatly to the complexity of the subject, which in itself was far from simple.
VI. In what the civil power consists.
1. The moral faculty of governing a state, which is ordinarily designated by the term civil power, is described by Thucydides as having three characteristics. He speaks of a state, which truly is a state, as ‘having its own laws, courts, and public officials.’
Aristotle distinguishes three parts in the government of a state deliberation in regard to matters of common interest; the choice of officials; and the administration of justice. To the first he refers deliberation in regard to war, peace, the making and abrogation of treaties, and legislation. To this he adds, further, deliberation in regard to the death penalty, exile, confiscation of property, and proceedings in cases of extortion, that is, as I interpret the passage, the administration of justice in criminal cases, since previously in treating the administration of justice he has dealt with cases involving the interests of individuals only.
Dionysius of Halicarnassus notes three principal functions the right to create and appoint to public offices; the right to make and abrogate laws; and the right of decision regarding war and peace. In another passage he adds a fourth, the right to render judicial decisions; elsewhere, again, he includes also the administration of matters pertaining to worship, and the convening of assemblies of the people.
2. Now if one wishes to make an exact division he will find it possible easily to include everything relating to civil power in such a way that there will be nothing omitted and nothing superfluous. For he who governs a state governs it in part through his own agency, in part through others. He governs through his own agency by devoting his attention either to general interests or to particular interests. In devoting himself to general interests he concerns himself with framing and abrogating laws respecting religious matters (so far as the care of religious matters belongs to the state) as well as secular. The branch of the science of government which deals with such matters Aristotle calls architectonic, ‘the architectural.’
The particular interests, with which he who governs concerns himself, are either exclusively public interests, or private interests which have a relation to public interests. Exclusively public interests are either actions, as the making of peace, of war, and of treaties; or things, such as taxes, and other things of a like nature, wherein the right of eminent domain, which the state has over citizens and over the property of citizens for public use, is included. The branch of the science of government which deals with such matters Aristotle designates by the general term ‘political,’ that is ‘civil,’ and ‘deliberative.’
Private interests are controversies between individuals the termination of which by public authority is important for the tranquillity of the state. The branch of the science of government concerned therewith is called by Aristotle ‘the judicial.’
The affairs that are administered through others are administered either through public officials, or through other responsible agents, among whom ambassadors are included.
In these things, then, the civil power consists.
VII. What sovereignty is.
1. That power is called sovereign whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will. When I say ‘of another,’ I exclude from consideration him who exercises the sovereign power, who has the right to change his determinations; I exclude also his successor, ‘who enjoys the same right, and therefore has the same power, not a different power. Let us, then, see who is the subject of sovereignty.
The subject of a power is either common or special. Just as the body is a common, the eye a special subject of the power of sight, so the state, which we have defined above as a perfect association, is the common subject of sovereignty.
2. We exclude from consideration, therefore, the peoples who have passed under the sway of another people, such as the peoples of the Roman provinces. For such peoples are not in themselves a state, in the sense in which we are now using the term, but the inferior members of a great state, just as slaves are members of a household.
Again, it happens that several peoples may have the same head, while nevertheless each of them in itself forms a perfect association. While in the case of the natural body there cannot be one head belonging to several bodies, this does not hold also in the case of a moral body. In the case of a moral body the same person, viewed in different relations, may be the head of several distinct bodies. A clear proof of this may be found in the fact that on the extinction of the reigning house, the right of government reverts to each people separately.
It may also happen that several states are bound together by a confederation, and form a kind of ‘system,’ as Strabo in more than one passage calls it, while nevertheless the different members do not cease in each case to retain the status of a perfect state. This fact was noted by other writers, and by Aristotle also in more than one passage.
3. It may be granted, then, that the common subject of sovereignty is the state, understood as we have already indicated. The special subject is one or more persons, according to the laws and customs of each nation; ‘the first power,’ according to Galen, in the sixth book of his treatise On the Teachings of Hippocrates and Plato.
VIII. The opinion that sovereignty always resides in the people is rejected, and arguments are answered.
1. At this point first of all the opinion of those must be rejected who hold that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make a bad use of their power. How many evils this opinion has given rise to, and can even now give rise to if it sinks deep into men’s minds, no wise person fails to see. We refute it by means of the following arguments.
To every man it is permitted to enslave himself to any one he pleases for private ownership, as is evident both from the Hebraic and from the Roman Law. Why, then, would it not be permitted to a people having legal competence to submit itself to some one person, or to several persons, in such a way as plainly to transfer to him the legal right to govern, retaining no vestige of that right for itself? And you should not say that such a presumption is not admissible; for we are not trying to ascertain what the presumption should be in case of doubt, but what can legally be done.
It is idle, too, to bring up the inconveniences which result, or may result, from such a procedure; for no matter what form of government you may devise, you will never be free from difficulties and dangers. Says the comedy:
- Have this with that, then, if you choose,
Or that with this together lose.
2. Just as, in fact, there are many ways of living, one being better than another, and out of so many ways of living each is free to select that which he prefers, so also a people can select the form of government which it wishes; and the extent of its legal right in the matter is not to be measured by the superior excellence of this or that form of government, in regard to which different men hold different views, but by its free choice.
3. In truth it is possible to find not a few causes which may impel a people wholly to renounce the right to govern itself and to vest this in another, as, for example, if a people threatened with destruction cannot induce any one to defend it on any other condition; again, if a people pinched by want can in no other way obtain the supplies needed to sustain life. For if the Campanians, constrained by necessity, once made themselves subject to the Roman people a in the manner indicated by these words: ‘The people of Campania, and the city Capua, the lands, the shrines of the gods and all things of gods and men in our possession we give over, Conscript Fathers, to your dominion’; and if, according to Appian, some peoples desiring to make themselves subject to the Roman people were not even permitted to do so, what is there to prevent any people from giving itself up, in the same way, to one exceedingly powerful man I In Virgil we read:
- Nor when, by terms of unjust peace compelled,
Himself to sovereign power he shall subject.
It may happen, again, that the head of a house possessing great estates may be unwilling under any other conditions to allow permanent residents to come upon his lands; or that the owner of a great number of slaves may set them free upon condition that they submit to his authority and pay him taxes. For these supposed cases we do not lack concrete examples. Of the slaves of the Germans we read in Tacitus:
Each controls his own place of habitation, his own household. The master exacts from him a certain amount of grain, or live stock, or clothing, as from a tenant, and the slave renders obedience up to the limit of this requirement.
4. Further, as Aristotle said that some men are by nature slaves, that is, are suited to slavery, so there are some peoples so constituted that they understand better how to be ruled than to rule. Such an opinion the Cappadocians seem to have entertained in regard to themselves; they preferred life under a king to the freedom offered them by the Romans, declaring that they could not live without a king. So Philostratus, in his Life of Apollonius, says that it is absurd to grant to Thracians, Mysians, and Getans a freedom in which they do not have pleasure.
5. Some, again, cannot fail to be impressed by the example of nations which for a number of centuries have lived happily enough under a form of government clearly monarchical. ‘According to Livy the cities which were under the rule of Eumenes would not have been willing to exchange their lot for that of any free city. Sometimes the condition of a state is such that it seems possible to assure its safety only through the unrestricted rule of one man;’ such, in the view of many discerning persons, was the condition of the Roman state in the time of Augustus Caesar.
For these and similar reasons, then, it not only can happen, but actually does happen, that men make themselves subject to the rule and power of another, as Cicero also observes, in the second book of his treatise On Duties.
6. Just as private property can be acquired by means of a war that is lawful (iustum), according to our use of the term above, so by the same means public authority, or the right of governing, can be acquired, quite independently of any other source. What has been said, again, must not be understood as limited to the maintenance of the rule of a monarch, when that is the type of government concerned; for the same right and the same course of reasoning hold good in the case of an aristocracy which governs with the exclusion of the common people. What shall I say of this fact, that no republic has ever been found to be so democratic that in it there were not some persons, either very poor people or foreigners, also women and youths, who were excluded from public deliberations?
7. Some peoples, moreover, have under their sway other peoples ‘as subject to them as if they obeyed kings.’ Hence the question: ‘Is the people of Collatia its own master?’ Thus it is said of the Campanians, after they had given themselves over to the Romans, that they had become subject to a foreign power; of Acarnania and Amphilochia, that they were under the jurisdiction of the Aetolians; of Peraea and Caunus, that they were under the sway of the Rhodians; and of Pydna, that it was given by Philip to the people of Olynthus.
When the towns which had been subject to the Spartans were delivered from Spartan domination, they received the name of Eleutherolacones, ‘Free Lacedaemonians.’ The city Cotyora is mentioned by Xenophon as having belonged to the people of Sinope. According to Strabo, Nice, in Italy, was assigned to the people of Marseilles, and the island of Ischia to the people of Naples. So we read in Frontinus that the town Calatis was assigned to the colony of Capua, and Caudium to the colony of Beneventum, with their territories. Otho gave the Moorish states as a present to the province of Baetica; the fact is on record in Tacitus. All these territorial adjustments must be set aside as null and void if we take the position that the right to govern is always subject to the judgement and will of those who are governed.
8. That in fact there have been kings who did not derive their power, even in a general way, from the will of the people, sacred and secular history alike bear witness. God says, addressing the people of Israel, ‘If thou shalt say, I will set a king over me’; and to Samuel He said: ‘Show unto them the manner of king that shall reign over them.’ Hence the anointed king is said to be ‘over the people,’ ‘over the Lord’s inheritance,’ ‘over Israel’; and Solomon is said to be ‘king over all Israel.’ Thus David gives thanks to God because he has made his people subject to him; and Christ says,’ The kings of the Gentiles have lordship over them.’ Familiar are the lines of Horace:
O’er their own herds the rule of fearsome kings,
O’er kings themselves the rule of Jove abides.
9. Seneca thus describes three types of government: ‘Sometimes it is the people that we ought to fear; sometimes, if the constitution of the state is such that most of the public business is transacted by the senate, influential men in the state are feared; and sometimes individuals, upon whom the power of the people, and over the people, has been conferred.’ Such are the men of whom Plutarch says that ‘they have supreme power not only in accordance with the laws but also over the laws.’ In Herodotus Otanes thus characterizes sovereignty in the hands of one person: ‘To do whatever one pleases, without being accountable to anyone.’ Dio of Prusa defines the power of the king in similar terms: ‘So to rule as not to be accountable to anyone.’ Pausanias, in his Messenia, contrasts ‘the power of a king with a power which has to assume responsibility for its acts.’
10. Aristotle says that there are some kings who are vested with the same powers that in other cases the nation itself has, over itself and its possessions. Thus after the Roman emperors began to make use of a power veritably royal, it was said that to these the people had transferred all their own authority and power, even over themselves, as Theophilus explains. Hence that saying of Marcus Aurelius the philosopher: ‘No one but God alone can be judge of an emperor.’
Of such an emperor Dio says (Book LIII): ‘He is free, and master of himself and of the laws, so that he both does what he wishes and does not do what he does not wish to do.’ Such in ancient times at Argos, in Greece, was the royal power of the descendants of Inachus; for in the Argive tragedy of the Suppliants, Aeschylus represents the people as thus addressing the king:
- Thou art the city, thou the commonweal,
A sovereign thou not subject to a judge;
Upon thy throne, as on an altar raised,
Thou rulest all things by thy single will.
11. In a far different way Theseus, himself a king, in Euripides speaks of the commonwealth of the Athenians:
- Not ruled
By one man is our city, but ’tis free.
The people rules, bestowing year by year
Office on this or that in turn.
For Theseus, as Plutarch explains, was only a military leader and guardian of the laws; in other respects he was on a level with the mass of citizens.’
In the light of such instances, clearly kings who are subject to the people are not properly called kings. Thus according to Polybius, Plutarch, and Cornelius Nepos, after the time of Lycurgus, and especially after the office of ephor was created, the kings of the Lacedaemonians were kings only in name, not in fact. This example was followed also by other peoples in Greece. Says Pausanias, in the part of his work relating to Corinth: ‘The Argives who, from time immemorial, had been devoted to equality and liberty, reduced the royal power to the extreme limit, with the result that they left to the sons and successors of Cisus nothing of kingly power except the name.’ Aristotle declares that such kingships do not constitute a distinct type of government, because in reality they only form a part in a commonwealth controlled by an aristocracy or by the people.
12. Furthermore, even in the case of peoples who are not permanently subject to kings we see examples of a kind of temporary kingship which is not subject to the people. Such was the power of the Amymones among the people of Cnidus, and of the dictator among the Romans in the earliest times, when there was no appeal to the people. Hence Livy says that an edict of the dictator was complied with as a divine decree, and that there was no resource except in obedience. Cicero declares that the dictatorship was invested with royal powers.
13. The arguments which are presented on the other side it is not hard to meet. For, in the first place, the assertion, that he who vests some one with authority is superior to him upon whom the authority is conferred, holds true only of a relationship the effect of which is continually dependent on the will of the constituent authority; it does not hold true of a situation brought about by an act of will, from which a compulsory relationship results, as in the case of a woman giving authority over herself to a husband, whom she must ever after obey. To the soldiers who had made him emperor and were demanding something which did not meet with his approval, the Emperor Valentinian returned this answer’:
Soldiers, when you chose me to be your Emperor, it was in your power to choose. But now that you have chosen me, the decision regarding that which you ask rests with me, not with you. It belongs to you, as subjects, to obey; to me, to ponder what should be done.
It is, however, not true, as is assumed, that all kings are clothed with authority by the people. This can be clearly enough understood from the illustrations given above, of the head of a house receiving strangers only under the stipulation of rendering obedience to him, and that of nations conquered in war.
14. Another argument men take from the saying of the philosophers, that all government was established for the benefit of those who are governed, not of those who govern; from this they think it follows that, in view of the worthiness of the end they who are governed are superior to him who governs.
But it is not universally true, that all government was constituted for the benefit of the governed. For some types of governing in and of themselves have in view only the advantage of him who governs; such is the exercise of power by the master, the advantage of the slaves being only extrinsic and incidental, just as the earnings of a physician bear no relation to medicine as the art of healing. Other types of governing have in view a mutual advantage, as that of marriage. Thus some imperial governments may have been constituted for the benefit of kings, as those which have been secured through victory, and yet are not on that account to be called tyrannical, since the tyranny, at any rate as the word is now understood, connotes injustice. Some, again, may have in view as much the advantage of him who governs as of those who are governed, as when a people powerless to help itself places itself in subjection to a powerful king for its own protection.
Nevertheless I do not deny that in the case of most states the benefit of those who are governed is the primary consideration; and that this is true which Cicero said after Herodotus, and Herodotus after Hesiod, that kings received authority in order that men might enjoy justice. But it does not on that account follow, as our opponents infer, that the peoples are superior to the kings; for guardianship was instituted for the sake of the ward, and yet guardianship includes both a right and power over the ward. Furthermore there is nothing in the objection, which some may urge, that a guardian, in case he administers his trust badly, can be removed, and that, therefore, the same right ought to hold in the case of a king. In the case of a guardian, who has a superior, such procedure is obviously valid; but in the case of a government, because the series does not extend to infinity, it is absolutely necessary to stop with some person, or assembly, whose sins, because it has no judge superior to it, God takes into special consideration, as He himself bears witness. He either metes out punishment for them, if He deems punishment necessary, or tolerates them, for the chastisement or the testing of a people.
15. ‘Endure,’ Tacitus very well says, ‘Endure the luxury or avarice of those who govern, just as you put up with unfruitfulness or too heavy rains, and other scourges of nature. There will be faults so long as there shall be men; but they are not continuous, and are offset from time to time by better things.’ Marcus Aurelius said that private persons are judged by the magistrates, magistrates by the emperor, the emperor by God. There is a striking passage of Gregory of Tours, in which, himself a bishop, he thus addresses the king of the Franks:
If anyone of us, O king, wishes to overstep the bounds of justice, he can be chastised by you; but if you pass beyond them, who shall chastise you? For we speak to you if you wish, you hear; but if you do not wish to hear, who shall condemn you, unless He who has declared that He is justice?
Among the dogmas of the Essenes, Porphyry relates, was this ‘The power of governing falls to the lot of no one without the special care of God.’ Irenaeus very aptly remarks: ‘Kings, too, receive authority at the bidding of Him at whose bidding men are born; and they are fitted to rule over those who in their time are ruled by them.’ The same thought appears in the Constitutions called Clementine: ‘You will fear the king, knowing that he was chosen by the Lord.’
16. What we have said is in no degree invalidated by the fact that we sometimes read of people being punished on account of the sins of their kings. This happens not because the people did not punish their king, or did not restrain him, but because it connived with him in his offences, at least through silence. And yet God, even without the people, could make use of the supreme power and authority, which He has over the life and death of individuals, for the chastisement of the king, for whom it is punishment to be deprived of his subjects.
IX. The argument that there is always a relation of mutual dependence between king and people, is refuted.
1. Some imagine that between king and people there is a relation of mutual dependence, so that the whole people ought to obey the king who governs well, while the king who governs badly should be made subject to the people. If they who hold this opinion should say that anything which is manifestly wrong should not be done because the king commanded it, they would be saying what is true and is acknowledged among all good men; but such a refusal implies no curtailing of power or any right to exercise authority. If it had been the purpose of any people to divide the sovereign power with a king (on this point something will need to be said below), surely such limits ought to have been assigned to the power of each as could easily be discerned from a difference in places, persons, or affairs.
2. The moral goodness or badness of an action, especially in natters relating to the state, is not suited to a division into parts; such qualities frequently are obscure, and difficult to analyze. In consequence the utmost confusion would prevail in case the king on the one side, and the people on the other, under the pretext that an act is good or bad, should be trying to take cognizance of the same matter, each by virtue of its power. To introduce so complete disorder into its affairs has not, so far as I know, occurred to any people.
X. Cautions are offered for the right understanding of the true opinion the first is, in regard to the distinguishing of similar words which differ in meaning.
1. Now that the false views have been eliminated, it remains to offer some cautions which may serve to point out to us the road leading to a right decision of the question to whom, in each nation, the sovereign power belongs.
The first caution is, not to allow ourselves to be led astray by the equivocal meanings of words, or by the external appearance of things. For instance, in Latin writers the words principatus, ‘chief authority’; ‘principate,’ and regnum, ‘kingly power,’ ‘monarchy,’ are ordinarily used in contrast, as when Caesar says that the father of Vercingetorix had obtained the chief authority of Gaul but was put to death because he aspired to the kingship. Similarly, Piso, in Tacitus, says that Germanicus is son of him who holds the principate among the Romans, not of a king of the Parthians; and Suetonius declares that Caligula came very near transforming the semblance of a principate into a monarchy. Also in Velleius it is said that Maroboduus aimed to acquire not the chief authority, which rests on the will of those who render obedience, but royal power.
2. We see, nevertheless, that these two words are often con founded. For the Spartan chiefs, descendants of Hercules, after they were made subordinate to the ephors, continued to be called kings, as we just now observed. In ancient Germany there were kings of whom Tacitus says that they exercised authority through persuasion, not through the power to command. Of King Evander Livy says that he ruled more by personal influence than by sovereign power. Aristotle and Polybius called the suffete of the Carthaginians king, as Diodorus also does; in like manner Solinus said that Hanno was king of the Carthaginians. Of the people of Scepsis in the Troad Strabo says that after they had taken the Milesians into their state and had formed a democratic commonwealth, the royal title, and some degree of distinction also, remained to the descendants of the ancient kings.
3. On the other hand, when the Roman emperors had come to hold absolutely unrestricted powers of government, openly and without subterfuge, they were nevertheless called ‘men holding the chief authority’ (principes). In some free states, also, emblems of royal dignity are customarily granted to those in whose hands the chief authority rests.
4. Again, the assembly of the estates, that is, the meeting of those who represent the people as divided into classes those, of course, of whom Gunther speaks:
The clergy, the nobility, and delegates of towns
in some states at any rate serves only this purpose, that they form a greater king’s council; through it the complaints of the people, which are often passed over without mention in the king’s cabinet, reach the ear of the king, who is then free to determine what seems to him best to meet the case. In other states such bodies have the right to pass in review the acts of the ruler, and even to enact laws by which the ruler is bound.
5. Many think that the distinction between sovereign power, and power that is less than sovereign, ought to be made according to the mode of conferring such power, whether by election or by succession. They maintain that that alone is sovereign power which is conferred by succession, that that is not sovereign power which is conferred by election. But surely this cannot be universally true. For succession is not a title of power, which gives character to the power, but a continuation of a power previously existing. The legal right to govern which was founded by selection in a family is continued by succession; in consequence, succession confers only so much power as was granted by the first act of choice.
Among the Spartans the kingship passed to heirs, even after the office of ephor was created. To such a kingship, that is to such a holding of authority, Aristotle makes reference: ‘Some kingships are conferred by right of descent, others by choice.’ Such in the heroic age were most kingships in Greece,’ as both this author and Thucydides observe. Among the Romans, on the contrary, the sovereign power continued to be conferred by election, even after all power had been taken away from the senate and the people.
XI. The second caution, as to distinguishing rights from the manner of possessing rights.
1. The second caution shall be this, that the distinction must be kept in mind between a thing and the mode of its possession. This distinction holds not only for corporeal but also for incorporeal things. Just as a field is a thing, so rights of way over it for pedestrians, for cattle, and for use as a road are also things. These three rights, however, are held by some with full ownership, by others as usufruct, by others still with power of temporary use. Similarly, the Roman dictator held the sovereign power by a right limited in time’; but most kings, both those who are the first to be chosen and those who succeed them in lawful succession, hold it as a usufruct. Some kings, however, possess the sovereign power in full right of ownership, having acquired it in lawful war, or through the submission of a people which, to avoid greater disaster, subjected itself without any reservation.
2. I am unable to agree with those who declare that the dictator was not the bearer of sovereignty because his power was not perpetual. For the character of immaterial things is recognized from their effects, and legal powers which have the same effects ought to be designated by the same name. Now the dictator during his period of office performed all acts by virtue of the same legal right which a king has who possesses absolute power; and his acts could not be rendered null and void by any one. Duration, moreover, does not change the nature of a thing.
If, as we may grant, question is raised as to the prestige which is commonly called majesty, there is no doubt that this is to be found in fuller measure in him to whom the perpetual right has been given than in him upon whom a temporary right has been conferred; the manner of holding does effect prestige. I maintain, further, that the same holds true of him who is made regent of a kingdom before a king has attained to his majority, or while the king is prevented from reigning by madness or captivity. Under such conditions regents are not subject to the people, and their power is not revocable before a time fixed by law.
3. We must consider as altogether different the case of those who received a power revocable at any moment, that is resting on sufferance. Such the kingship of the Vandals in Africa once was, and that of the Goths in Spain, where the people deposed their kings whenever these failed to please them. Single acts of such rulers can be annulled by those who conferred upon them their power subject to revocation; and as the effect is not the same, so the right is not the same.
XII. It is shown that in some cases the sovereign power is held absolutely, that is with right of transfer.
1. What I have said, that in some cases sovereign power is held with full proprietary right, that is in patrimony, some learned men oppose, using the argument that free men cannot be treated as property. But just as the power of the master is one thing, that of the king another, so also personal liberty is different from civil liberty, the liberty of individuals from the liberty of men in the aggregate. The Stoics said that one form of slavery was ‘subjection,’ and in the Holy Scriptures subjects are called servants of the king. Just as personal liberty, then, excludes subjection to a master, so civil liberty excludes subjection to a king and any other form of control properly so called.
Livy contrasts the two points of view thus: ‘Not having yet tasted the sweetness of liberty, they were demanding a king.’ The same writer elsewhere says: ‘It seemed a pity that the Roman people, so long as it was in subjection under kings, was not beset by war and by enemies, and that the same people, when it had become free, was besieged by the Etruscans.’ In still another passage Livy remarks ‘The Roman people was not under the power of a king, but was free.’ Elsewhere, again, he contrasts nations which were in a condition of liberty with those that lived under the rule of kings.
Cicero had said: ‘Either the kings ought not to have been driven out, or liberty ought to have been given to the people in fact, not in words.’ After the time of both Cicero and Livy Tacitus said ‘At the beginning the city of Rome was in the power of kings; Lucius Brutus established liberty and the consulship.’ And in another place he declares: ‘The liberty of the Germans is a keener foe than the absolutism of Arsaces.’ Arrian in his account of the peoples of India refers to ‘kings and free states.’ Caecina in Seneca says ‘There are royal thunderbolts, whose force smites either the spot where elective assemblies meet or the governmental headquarters of a free city; the prognostication of such thunderbolts is that the state is threatened by the rule of a king.’
With similar underlying thought those of the Cilicians who were not subject to kings were called Free Cilicians. Of Amisus Strabo says that it was at times free, at times under the rule of kings. In various places in the Roman laws relating to war and to proceedings of recovery foreigners are distinguished as under kings or belonging to free peoples. Here, then, the liberty of a people is concerned, not that of individuals. Moreover, just as in the case of private servitude, so also in the case of peoples in subjection, some are said to be not their own masters, not under their own control. Hence these forms of expression: ‘What cities, what territories, what men once belonged to the Aetolians’; and ‘Is the people of Collatia its own master? ‘
2. Nevertheless, when a people is transferred this is not, strictly speaking, a transfer of the individuals but of the perpetual right of governing them in their totality as a people. Similarly, when a freedman is allotted to one of the children of a patron, this is not a transfer of ownership of a free man but the transfer of a right which is valid over the man.
3. Equally devoid of foundation is the assertion that if a king has acquired any peoples in war, since he has not acquired them without blood and sweat of his citizens, they ought in consequence to be considered as acquired for the citizens rather than for the king. For it might happen that a king had supported an army from his private means,’ or even from the income of the estate which came to him as holding the position of chief authority. For a king may have over such an estate only the right of usufruct, in the same way that he holds the right of ruling over the people who chose him; nevertheless the income is absolutely his own. The case is like that in the civil law, when the restitution of an inheritance has been ordered; the income is not restored, because the income is considered not as forming a part of the inheritance but as a part, rather, of the property.
It can happen, then, that a king may have the sovereign power in his own right over certain peoples; in such cases, then, he can transfer it. Strabo says that the island of Cythera, lying over against Cape Matapan, belonged to Eurycles, a leading man among the Lacedaemonians, ‘in his individual right.’ Thus King Solomon gave to Hiram, king of the Phoenicians (Hiromos in Greek, for so he is named by Philo of Byblos, who translated the history of Sanchoniathon), twenty cities. These cities were not among those which belonged to the Jewish people; for Cabul such is the name given to them lay outside the Jewish territory (Joshua 19:27). They were a portion of the cities which conquered peoples, enemies of the Jews, had held up to that time; part of them had been conquered by the king of Egypt, Solomon’s father-in-law, and given to Solomon as dowry, part had been vanquished by Solomon himself. That they were not at that time inhabited by Israelites is indicated by the fact that Solomon began to colonize them with Jews only after Hiram had given them back to him.
4. In like manner we read that the sovereignty over Sparta, which had been captured in war, was given by Hercules’ to Tyndareus subject to the condition that if Hercules should leave any children, it should revert to them. Amphipolis was given as dowry to Acamas, the son of Theseus. In Homer, too, Agamemnon promises that he will give seven cities to Achilles. The King Anaxagoras presented two thirds of his kingdom to Melampus. Of Darius Justin speaks as follows: ‘By will he left his kingdom to Artaxerxes; to Cyrus, the cities of which Cyrus was governor.’ Similarly, we are to believe, the successors of Alexander, each for his own part, succeeded to the full and proprietary right to rule the peoples which had been subject to the Persians, or themselves acquired sovereignty by right of victory; it is not, therefore, to be wondered at if they assumed to themselves the right of transfer.
5. In like manner when King Attalus, son of Eumenes, had by will made the Roman people heir to his property, the Roman people under the designation ‘property’ included also his kingdom. In regard to this procedure Florus remarks: ‘After taking possession of this inheritance, the Roman people held it as a province, not by right of war or of arms but as is fairer by testamentary disposition.’ Afterward, again, when Nicomedes, king of Bithynia, dying, had made the Roman people his heir, his kingdom was reduced to the form of a province. To this Cicero refers, in his second speech Against Rullus: ‘We have entered upon an inheritance, the kingdom of Bithynia.’ Similarly a part of north-eastern Africa, the Cyrenaica, was left by Apion the king to the same people by will.
6. Tacitus, in the fourteenth book of his Annals, makes mention of the domains which had once belonged to King Apion and had been left to the Roman people with his kingship. ‘Who does not know,’ says Cicero in his speech On the Agrarian Law, ‘that the kingdom of Egypt, by the will of the Alexandrian king, has been made a possession of the Roman people?’ Justin represents Mithridates as saying in a speech about Paphlagonia that ‘this country had come into the possession of his father not by force, not by arms, but by the acceptance of a will.’ Of Orodes, king of the Parthians, the same author relates that for a long time he was in doubt which of his sons he should designate to succeed him as king. Polemon, ruler of the Tibareni and of the adjacent country, made his wife heiress of his sovereignty; the same thing had previously been done by Mausolus, in Caria, although he left brothers surviving him.
XIII. It is shown that in some cases the sovereign authority is not held absolutely.
1. In the case of kingships which have been conferred by the will of the people the presumption is, I grant, that it was not the will of the people to permit the king to alienate the sovereign power. Wherefore we have no reason to criticize Krantz because in the case of Unguin, who had bequeathed Norway by will, he comments on such procedure as lacking precedent, if we assume that he had in mind the customs of the Germans, among whom the sovereign power is held with no such right. Charlemagne, Louis the Pious, and other kings after them, even among the Vandals and the Hungarians, did, as we read, dispose of their kingdoms by will; but such action had rather the character of a recommendation to the people than of a transfer in the true sense. Of Charlemagne in particular Ado relates that he wished to have his will confirmed by the Frankish nobles. We read of a similar instance in Livy. Philip, king of Macedonia, desiring to keep Perseus from the throne and to make Antigonus, his brother’s son, king in place of Perseus, visited the cities of Macedonia in order to recommend Antigonus to the leading men.’
2. When we read that Louis the Pious gave back the city of Rome to Pope Paschal, this act has no bearing on the case. The Franks, having received from the Roman people the sovereignty over the city of Rome, could rightly restore it to the same people; and he who was at the head of the highest order was representative, as it were, of this people.
XIV. It is shown that in some cases intermediate governmental authority is held absolutely, that is with right of transfer.
Up to this point we have tried to show that the sovereignty must in itself be distinguished from the absolute possession of it. So true is this distinction that in the majority of cases the sovereignty is not held absolutely. Furthermore, in many cases intermediate governmental powers are held absolutely. In consequence, marquisates and earldoms are wont to be sold and bequeathed by will more easily than kingdoms.
XV. The distinction stated is reinforced from the difference in mode of appointing regents in kingdoms.
1. Another proof of this distinction appears in the method of safeguarding royal power when the king is prevented by age or by disease from performing his functions.
In the case of monarchies which are not patrimonial, the regency passes into the hands of those to whom it is entrusted by public law, or, that failing, by the consent of the people. In the case of patrimonial monarchies, the regency goes to those whom the father or near relatives have chosen. Thus we see that in the case of the kingship of the Epirotes, which had its origin in the consent of the people, guardians were appointed by the people for the king Aribas, who was a minor; and guardians were appointed by the nobles of Macedonia for the posthumous son of Alexander the Great. But in Asia Minor, which had been conquered by war, the king Eumenes assigned his brother as guardian for his son Attalus. In like manner the father Hiero, reigning in Sicily, by will designated those whom he wished as guardians for his son Hieronymus.
2. Whether the king be, at the same time, owner of the domain in his own right as proprietor, as the king of Egypt was after the time of Joseph, and the Indian kings according to Diodorus and Strabo, or not, such ownership lies outside the realm of sovereignty and in its essence has no relation to sovereignty. Wherefore it does not constitute a separate type of sovereignty, or a different mode of possessing sovereign power.
XVI. It is shown that sovereignty is not limited even by a promise of that which lies outside the sphere of the law of nature or of divine law.
1. A third comment is, that sovereignty does not cease to be such even if he who is going to exercise it makes promises even promises touching matters of government to his subjects or to God. I am not now speaking of the observance of the law of nature and of divine law, or of the law of nations; observance of these is binding upon all kings, even though they have made no promise. I am speaking of certain rules, to which kings would not be bound without a promise.
That what I say is true becomes clear from the similarity of the ease under consideration to that of the head of a household. If the ‘head of a household promises that he will do for it something which affects the government of it, he will not on that account cease to have full authority over his household, so far as matters of the household are concerned. A husband, furthermore, is not deprived of the power conferred on him by marriage because he has promised something to his wife.
2. Nevertheless it must be admitted that when such a promise is made, the sovereign power is in a way limited, whether the obligation affects only the exercise of the power, or even the power itself directly. In the former case an act performed contrary to the promise will be unjust, for the reason that, as we shall show elsewhere, a true promise confers a legal right upon the promisee; in the latter case, the act will be void on account of lack of power. From this, nevertheless, it does not follow that the promisor is subject to some superior; the nullification of the act in this case results not from the interposition of a superior power but from the law itself.
3. Among the Persians the king possessed absolute power. ‘He was an autocrat, and accountable to no one,’ as Plutarch says, and he was worshiped as the image of deity. According to Justin a change of kings took place only through death. A king it was who said to the Persian nobles: ‘In order that I might not seem to follow only my own counsel, I have brought you together; for the rest, remember that for you the obligation is greater to obey than to advise.’ The Persian king, nevertheless, on assuming royal power took an oath, as Xenophon and Diodorus Siculus observed; and it was wrong for him to change laws which had been made in accordance with a certain formality, as we learn from the story of Daniel and Plutarch’s Themistocles. To this fact Diodorus Siculus bears witness also in his seventeenth book and, after a long interval, Procopius in the first book of the Persian War, where there is a remarkable story bearing on the point.
Diodorus Siculus relates the same thing of the kings of the Ethiopians. According to this writer, again, the kings of the Egyptians who, as other Oriental rulers, incontestably exercised absolute power, were bound to the observance of many regulations. If they disregarded these, they could not be called to account while living; but after death proceedings were brought against them, and if they were found guilty the honor of ceremonious burial was denied them. In like manner the bodies of the Jewish kings who had reigned badly were buried outside the place set aside for the kings (2 Chronicles24:25, and 28:27). This was an excellent measure, which preserved the respect due to the supreme authority and yet, through fear of a future judgement, restrained kings from violating their pledges. We learn from Plutarch’s Life of Pyrrhus, that the kings of Epirus also were accustomed to swear that they would reign in accordance with the laws.
4. What if there should be added the condition that if the king should violate his pledge he would lose his kingship? Even under such circumstances the power of the king will not cease to be supreme, but the mode of possessing it will be restricted by the condition, and it will resemble the sovereign power limited in time. Of the king of the Sabaeans Agatharchides related that he was ‘accountable to no one,’ being possessed of the most absolute power, but that if he should go outside his palace he could be stoned. This fact was noted also by Strabo, on the authority of Artemidorus.
Thus a landed estate, which is held in trust in pursuance of a request, is in fact legally ours not less than if possession were had in absolute ownership; but it is held on condition that it be not dissipated. A similar commissary clause is applicable not only in respect to the renunciation of governmental authority but also in other contracts. For we see that even some treaties of alliance between neighboring states have been entered into with a similar stipulation.’
XVII. It is shown that sovereignty is sometimes divided into parts, subjective or potential.
1. In the fourth place it is to be observed that while sovereignty is a unity, in itself indivisible, consisting of the parts which we have enumerated above, and including the highest degree of authority, .which is ‘not accountable to any one’; nevertheless a division is sometimes made into parts designated as ‘potential’ (partes potentiales) and ‘subjective’ (partes subjectivas). Thus, while the sovereignty of Rome was a unity, yet it often happened that one emperor administered the East, another the West, or even three emperors governed the whole empire in three divisions.
So, again, it may happen that a people, when choosing a king, may reserve to itself certain powers but may confer the others on the king absolutely. This does not take place, however, as we have already shown, when the king obligates himself by certain promises; it must be understood as taking place only in cases where either the division of power,’ of which we have spoken, is explicitly provided for, or the people, yet free, enjoins upon the future king something in the nature of a perpetual command, or an additional stipulation is made from which it is understood that the king can be constrained or punished. A command is, in fact, the act of one having superior authority, at least in respect to that which is commanded. To constrain is not, at any rate not in all cases, the function of a superior by nature every one has the right to constrain a debtor; yet the act of constraining is inconsistent with the position of an inferior. From the power of constraint, therefore, flows at least a recognition of parity, and in consequence a division of the supreme power.
2. Against such a state of divided sovereignty having, as it were, two heads objections in great number are urged by many. But, as we have also said above, in matters of government there is nothing which from every point of view is quite free from disadvantages; and a legal provision is to be judged not by what this or that man considers best, but by what accords with the will of him with whom the provision originated.
An ancient example of divided sovereignty is given by Plato in the third book of the Laws. Since the Heraclids had founded Argos, Messene, and Sparta, the kings of these states were bound to govern within the provisions of the laws which had been laid down; so long as they should do so, the peoples were bound to leave the royal power in the hands of the kings themselves and their successors, and not to allow any one to take it away from them. To this end, then, not only did the peoples bind themselves to their kings, and kings to their peoples, but also the kings bound themselves to one another, and peoples to one another.’ Further, the kings bound themselves to neighboring peoples, and peoples to neighboring kings, and they promised to render aid, each to the other.
XVIII. That nevertheless it is wrong to infer that there is a division of sovereignty when kings do not wish certain acts of theirs to have the force of law unless approved by some assembly.
1. They are greatly mistaken, however, who think that a division of sovereignty occurs when kings desire that certain acts of theirs do not have the force of law unless these are approved by a senate or some other assembly. For acts which are annulled in this way must be understood as annulled by the exercise of sovereignty on the part of the king himself, who has taken this way to protect himself in order that a measure granted under false representations might not be considered a true act of his will. A case in point was the rescript of King Antiochus the Third to the public officials, directing them not to obey him in case he should have given any order which was in conflict with the laws. Another instance is the law of Constantine that wards or widows should not be compelled to appear in person for legal proceedings at the emperor’s court, even though a rescript of the emperor requiring their presence should be presented to them.’
2. The case under consideration, then, resembles a will to which the clause has been added that no later will would be valid; for such a clause establishes the presumption that a later will would not express the real desire of the testator. But just as in the case of such a testamentary clause, so too the analogous declaration of the king can be nullified by an explicit order and specific expression of a later act of will.
XIX. That other examples of wrong inference regarding the division of sovereignty are found under this head.
At this point I do not follow Polybius, who assigns the Roman republic to the class of states having a mixed government. In his time this state, if we fix our attention not on the civil acts but on the body of law behind the acts, was a pure democracy; for both the authority of the senate, which he considers as the control of an aristocracy, and that of the consuls, whom he likens to kings, were subject to the people.
The same statement in my view is applicable to the observations of other writers, who, dealing with matters of government, find it more to their purpose to give their attention to matters of outward form and daily administration than to the body of law which is the expression of sovereignty.
XX. True examples of mixed sovereignty.
1. More in point is the generalization of Aristotle, who wrote that there are certain types of monarchy intermediate between the full royal power, which he calls absolute monarchy (this is the same as the ‘complete monarchy’ in the Antigone of Sophocles; it is called by Plutarch ‘monarchy governing in its own right and not accountable to any one,’ and by Strabo ‘authority absolute in itself’), and the kingship of the Lacedaemonians, which is merely a government by leading men.
In my opinion an example of division of sovereign power may be found in the case of the Jewish kings. That in respect to most matters these kings ruled with sovereign power, is, I think, beyond cavil. The people had in fact wished to have a king such as the neighboring peoples had; but Oriental peoples were ruled in a very arbitrary way. In the Persians Aeschylus represents Atossa as thus speaking of the king of the Persians:
- Not to the state responsible is he.
Familiar is the passage of Virgil:
- Not Egypt and great Lydia, nor tribes
Of Parthians, or Median Hydaspes,
To their king such homage pay.
In Livy we read: ‘The Syrians and the inhabitants of Asia are races born for servitude.’ Not unlike this is the remark of Apollonius in Philostratus: ‘The Assyrians and the Medes even worship despotism.’ ‘The Asiatics . . . endure despotic government contentedly,’ says Aristotle, in the third book of his Politics, chapter fourteen. In Tacitus we find Civilis, the Batavian, saying to the Gauls: ‘Syria and Asia and the Orient, accustomed to kings, might well remain in slavery,’ for in Germany and in Gaul at that time there were kings, but, as the same Tacitus observed, they held their right to rule on sufferance and by power of persuasion, not by authority to command.
2. The entire Jewish people, as we remarked above also, was under a king: and Samuel, setting forth the rights of kings, makes it plain enough that the people had no recourse against acts of injustice on the part of the king. This conclusion coincides with the interpretation which the early commentators rightly gave to the words of the Psalm: ‘Against Thee only have I sinned.’ On these words Jerome has the comment, ‘Because he was king, and feared no one else.’ The same words are thus explained by Ambrose:
He was a king, he was himself bound by no laws because kings are free from the shackles of accountability for their wrong-doings. For they are not brought by any laws to face punishment, being secure on account of the possession of supreme power. David did not, therefore, sin against men, to whom he was not held accountable.
The same thing may be read in one of the Letters (no. 383) of Isidore of Pelusium, lately published.
I see that the Jewish authorities are agreed that lashes were laid upon the king who sinned against the laws that were extant in writing in regard to the duty of kings; but in their view such blows were free from disgrace. The king, in fact, voluntarily underwent scourging as a sign of his repentance; and so he was scourged not by a particular attendant, but by some one whom he had chosen, and he himself fixed the number of stripes. The kings were so shielded from penalties of a coercive nature that in their case even the law of excalceation, which involved disgrace, was not applied. An opinion of the Jew Barnachmon is found in the sayings of the Rabbis, under the title On Judges: ‘No creature passes judgement on the king, only God alone the Blessed.’
3. Although this is true, nevertheless I think that the judicial cognizance of some matters was taken away from the kings, and remained in the jurisdiction of the sanhedrin, composed of seventy men, which by divine command was established by Moses and lasted, with unbroken co-optation, to the time of Herod. Thus both Moses and David called the judges gods, and their judgements are called the judgements of God; the judges are further said to render judgement in place not of men but of God.
Moreover, the things of God are plainly distinguished from the things of the king, where the things of God, according to the opinion of the most learned Jews, must be understood as judgements to be rendered in accordance with the law of God. I do not deny that the king of Judah on his own cognizance in certain cases passed sentences of death; in this respect Maimonides considers him as having the advantage over the king of the ten tribes of Israel. The fact is established by not a few examples, part in the Holy Scriptures, part in the writings of the Jews. On the other hand, there were certain classes of matters the cognizance of which seems not to have been entrusted to the king, as those relating to a tribe, a high priest or a prophet.’ A proof of this is in the history of the prophet Jeremiah. When the princes demanded that he be put to death, the king answered: ‘Behold, he is in your hand; for the king is not he that can do anything against you,’ meaning, of course, in a matter of this kind.
The king, again, could not deliver from judgement a man who on any other charge had been accused before the sanhedrin. Thus Hyrcanus, being unable to hinder the passing of a sentence on Herod, evaded it by a ruse.
4. In Macedonia the kings who were descended from Caranus, as Callisthenes says in Arrian, ‘obtained the right to govern the Macedonians not by force, but by law.’ Curtius in his fourth book declares that ‘the Macedonians were accustomed to the rule of a king, but were under the shadow of a liberty greater than that enjoyed by other nations.’ In fact judgements involving sentence of death upon citizens were not in the jurisdiction of the king. The same Curtius in his sixth book says: ‘In accordance with an ancient practice among the Macedonians the army took cognizance of capital crimes. In time of peace, this responsibility rested with the people. The power of the kings counted for nothing except by previous authorization.’ Further evidence of this mixed sovereignty is found in another passage of Curtius: ‘In accordance with a custom of their nation the Macedonians did not allow their king to go hunting on foot, and without an escort chosen from among the leading men or friends.’
Of the Goths Tacitus says: ‘They are already governed somewhat more arbitrarily than the other German nations, but not yet beyond the limit of liberty.’ He had previously described a governmental headship resting upon power of persuasion, not on authority to command. Afterward he characterizes an absolute kingship in these words: ‘One man issues commands; there are no restrictions, his right to rule does not rest on sufferance.’ Eustathius in a comment on the sixth book of the Odyssey, where the state of the Phaeacians is described, says that it is ‘a mixture of kingship and aristocracy.’
5. A condition somewhat similar I note in the times of the Roman kings. In that period almost all matters were administered by the hand of the king. ‘Romulus,’ says Tacitus,’ had ruled over us as he pleased.’ ‘The fact is established,’ Pomponius declares, ‘that in our state at the beginning the kings had all the power.’ Nevertheless even at this time Dionysius of Halicarnassus makes out that there were some matters which were reserved to the people.
If, now, we concede a greater degree of reliability to the Roman writers, Seneca, basing his opinion upon the books of Cicero On the Commonwealth, also the pontifical books and Fenestella, averred that in certain cases there was a right of appeal from the kings to the people. Soon Servius Tullius, who had been raised to the kingship less by right than by popular favor, lessened even more the power of the kingship; in fact, as Tacitus remarks, ‘He sanctioned laws which even the kings must obey.’ It is, then, not surprising to find in Livy the statement that the power of the first consuls differed from the power of the kings chiefly in the fact that it was limited to one year.
6. Similar was the mixture of democracy and aristocracy at Rome in an interregnum, and in the earlier part of the period of the consuls. In some matters those that were of greater importance a measure passed by the people had the force of law only if validated by the authority of the senate.’ Later, when the power of the people had been increased, as Livy and Dionysius observe, this procedure remained only as an antiquated form, since the senators began to ratify in advance the uncertain issue of the assemblies of the people. Still later a trace of the mixed sovereignty remained, as the same Livy tells; so long in fact as the power of governing was in the hands of the patricians, that is the senate, and a means of relief lay in the hands of the tribunes, that is the people; the means of relief was, of course, the right of veto or intercession.
7. In like manner Isocrates makes out that in the time of Solon the Athenian state was ‘an aristocracy compounded with democracy.’
Having laid down these principles, let us discuss certain questions which frequently come up in connection with the subject.
XXI. It is shown that sovereignty may be vested in him who is bound by an unequal alliance; and objections are met.
1. The first question is, whether he can possess sovereign power who is bound by an unequal alliance.
By an unequal alliance I mean here not an alliance entered into between states of unequal strength, such as that which the Theban state in the time of Pelopidas had with the king of Persia, and the Romans at one time with the Massilians, afterward with King Masinissa. Nor, again, do I have reference to a relation which has a temporary effect, as in the case of an enemy who is admitted to friendly terms until he pays the costs of a war, or fulfills some other condition. An unequal alliance is one which, by the very character of the treaty, gives to one of the contracting parties a permanent advantage over the other; when, for example, one party is bound to preserve the sovereignty and majesty of the other, as in the treaty of the Aetolians with the Romans that is, to put forth every effort that its sovereignty remain secure and its prestige, which is understood by the word majesty, remain unimpaired. This is what Tacitus called ‘the feeling of awe for the empire,’ explaining what he had in mind as follows: ‘In respect to place of habitation and territories they belong on their own bank, in mind and heart they act with us.’ Says Florus, ‘The other peoples also, who were not under our imperial authority, felt nevertheless its greatness, and stood in awe of the Roman people as conqueror of the nations.’
Characterized by a similar inequality are certain rights which today are known as rights of protection, defense, and patronage; also, among the Greeks, the right of the mother cities over their colonies. As Thucydides says, the colonies in respect to legal independence were on the same plane as the mother cities, but they were under obligation ‘to honor the mother city,’ and to manifest their feeling by ‘the customary signs of respect’ a deferential attitude, undoubtedly, and certain outward marks of honor.
2. Of the ancient treaty between the Romans, who had obtained a complete mastery over Alba, and the Latins, who were natives of Alba, Livy says: ‘In that treaty the Roman state had greatly the advantage.’ Rightly did Andronicus of Rhodes, following Aristotle, say, that this is characteristic of a relation of friendship between those who are unequal, that more honor is granted to the stronger, more help to the one that is weaker.
We know what answer Proculus gave to the question under consideration. He said that a state is independent which is not subject to the power of another, even though a stipulation may have been made in a treaty of alliance that this state shall use its good offices to maintain the dignity of another state. If, therefore, a state bound by such a treaty remains independent, if it is not subject to the power of another, the conclusion follows that it retains its sovereignty.
The same conclusion, further, must be affirmed in the case of a king. The case of. an independent state and that of a king, who truly is a king, are in this matter identical. Proculus adds that the stipulation referred to is made a part of a treaty in order that ‘it may be understood that one state holds a position of superiority, not that it may be understood that the other state is not independent.’ This position of superiority we ought to consider as having reference not to power (for he had just said that the lesser state was not subject to the power of another), but to influence and prestige. This is brought out by an apt comparison, in the following words:
Just as we understand (says Proculus) that our clients are free men, even though they are not our equals in respect to authority, standing and legal status, so it must be understood that those also are free who are under obligation through their good offices to maintain our prestige.
3. Clients are under the protection of their patrons; so lesser states are by treaty placed under the protection of a state which is superior in prestige. They are ‘under protection, not under domination,’ as Sulla says in Appian; ‘under patronage, not under subjection,’ as Livy expresses it. In the second book of his treatise On Duties Cicero, characterizing the times when the Romans were more conscientious, says that with them their allies had protection, not domination. In harmony with this is the saying of the elder Scipio Africanus, that ‘The Roman people prefers to bind men to it through kindness rather than through fear, and to have foreign nations joined with it in protecting care and in alliance rather than subject to it in depressing servitude.’ In harmony also is what Strabo said of the Lacedaemonians after the Romans came into Greece: ‘They remained free, contributing nothing except what was required by the terms of alliance.’
Just as private patronage in the case of individuals does not take away individual liberty, so patronage in the case of a state does not take away independence; and independence without sovereignty is inconceivable. So in Livy you may see that the conditions ‘to be under protection’ and ‘to be in subjection’ are contrasted. According to Josephus, Augustus made the threat to Syllaeus, king of the Arabs, that if he did not refrain from injuring his neighbors, Augustus would see to it that he should become a subject instead of a friend In the condition of subjects, in truth, the kings of Armenia were. They, as Paetus wrote to Vologeses, were under the domination of the Romans, and so were kings in name rather than in fact. Such, at an earlier time, were the kings of Cyprus and other kings who, as Diodorus says, were ‘subject’ to the kings of Persia.
4. Contradictory, seemingly, to what we have said, is the statement which Proculus adds: ‘Citizens of allied states are subject to legal proceedings among us, and if they are found guilty we punish them.’
In order that this statement may be understood, it is necessary to know that there are four kinds of controversies which can arise. First, if subjects of a state or of a king who is under the protection of another are charged with having violated the treaty of alliance; in the second place, if the states or kings themselves are accused of such violation; thirdly, if allies who are under the protection of the same state or king have differences among themselves; fourthly, if subjects complain that they have suffered wrongs at the hands of those to whom they are subject.
In the first case, if the offence is evident, the king or state is bound to punish the offender, or to deliver him up to the party that suffered the wrong. This holds not only in the case of unequal alliances, but also in the case of alliances made on equal terms; also, again, in the case of those who are not bound by any alliance, as we shall show elsewhere. The king or state furthermore is bound to see to it that the losses are made good. At Rome this was the business of the board of recuperators (recuperatores). So Aelius Gallus, as quoted by Festus: ‘There is recovery when between the Roman people and foreign kings, nations and states a law provides in what way property may be restored and recovered through the agency of the recuperator, and how men are to proceed for the adjustment of private interests between themselves.’ However, one ally does not have the right directly to seize or punish a subject of another ally. Thus the Campanian Decius Magius was placed in fetters by Hannibal and taken to Cyrene, thence deported to Alexandria; he showed that he had been placed in bonds by Hannibal in violation of the terms of alliance, and so was released from his chains.
5. In the second case, one ally has the right to compel the other ally to abide by the terms of the treaty, and also to punish him, in case he has failed to do so. But this, again, is not limited to unequal alliances. The same rule of right holds in the case of a treaty on equal terms. For in order to exact punishment from one who has committed an offence, it is sufficient that the party inflicting the punishment be not subject to the offender; but this point will be treated by us later. In consequence the same practice has arisen also between kings and states not in alliance.
6. In the third case, in unequal as in equal alliances, controversies are ordinarily referred to a conference of the allies who have no interest in the matter under dispute such, we read, was the practice among the Greeks, the early Latins, and the Germans; otherwise, either to arbitrators, or even to the leading member of a confederation as a common arbitrator. The latter alternative is ordinarily adopted in the case of an unequal alliance, so that controversies are settled by reference to him who has the leading place in the alliance. Even this method does not disclose an authority based on sovereign power; for kings often plead before judges appointed by themselves.
7. In the last case the allies have no right of intervention. Thus when Herod on his own initiative submitted charges against his sons to Augustus, they said to him: ‘You were able to punish us yourself in your own right, both as father and as king.’ When charges were brought against Hannibal at Rome by some of the Carthaginians, Scipio declared that the senators ought not to interfere in a matter which belonged to the Carthaginian state. This is in harmony with the statement of Aristotle, that an alliance of states differs from a single state in this, that the allies are charged with preventing the commission of wrong against any one of them, not with prevention of wrong-doing among the citizens of an allied state.
8. Another objection is often raised, that in the histories the word ‘command’ is sometimes used with reference to him who holds a position of vantage in an alliance, and ‘obey’ with reference to him who holds the inferior position. This, however, ought not to disturb us. For we are here concerned either with matters that relate to the common good of the alliance, or with the particular interest of him who in the alliance holds the position of vantage. In respect to matters of common interest, except at the time of a conference of the allies, even when there is an alliance on equal terms, he who is chosen as head of the alliance ‘prince of the covenant’ (Daniel 11:22) ordinarily holds the command. Thus Agamemnon commanded the Greek kings; afterward the Spartans, then the Athenians, commanded the Greeks. In the address of the Corinthians in Thucydides we read:
It is fitting that those who have the leading place in an alliance should arrogate to themselves no privilege in relation to their own interests, but should make themselves conspicuous above the others through their careful management of the common interests.
Isocrates says that the ancient Athenians held the military leadership, ‘assuming the responsibility on behalf of all the allies, but in such a way as to leave their independence unimpaired’; in another passage, ‘in such a way that they thought their duty was to administer the command of the war, not to bear sway’; in a third passage, he adds: ‘administering their affairs in the spirit of an ally, not of a master.’
This right of the leading member of an alliance the Romans expressed by imperare, ‘to command’; the Greeks, with greater self-constraint, by a word meaning ‘to put in order,” arrange.’ Thus, according to Thucydides, the Athenians, having received the direction of the war against the Persians, ‘arranged’ (so it was said of those who were sent from Rome to Greece, that they were sent ‘to arrange the affairs of free states’) ‘what cities should contribute money for the war against the barbarian, what cities should contribute ships.’ If this, then, is done by one who is only the leading member in an alliance, it is not remarkable if the same thing is done by him who in an unequal alliance has, according to the terms of the treaty, the position of vantage. Understood in this sense, the right on the part of the leading ally to hold command, that is hegemony, does not take away the independence of the others.
Consistent with this point of view is the statement of the Rhodians in their speech to the Roman senate, as reported by Livy:
In former times the Greeks by their own strength gained also the power to rule. Now they earnestly desire that the power to rule may remain permanently where it is; they count it sufficient to maintain their independence with the help of your arms, since they are not able to maintain it with their own.
In the same spirit, after the citadel of Cadmus had been retaken by the Thebans, as Diodorus relates, many states of Greece joined together, ‘to the end that they might be free, but might avail themselves of the military leadership of the Athenians.’ Of the Athenians themselves in the time of Philip of Macedon Dio of Prusa says that ‘at this time they had lost their position of military leadership and retained only their independence.’ Caesar soon names as allies the same peoples who, as he tells us, had been under the dominion of the Suevi.
9. In matters which affect the particular interest of him who holds the position of vantage in an unequal alliance, requests are often spoken of as commands, not rightly but in accordance with the similarity of the effect produced; in like manner the prayers of kings are often said to be commands, and sick people are said to give orders to their physicians. Says Livy (Book XLII): ‘Before the time of this consul ‘ Gaius Postumius ‘no one was ever a burden or source of expense to the allies in any matter; so the public officials were provided with mules, tents, and all other military equipment, in order that they might not requisition such material from the allies.’
10. It is, nevertheless, true that in the majority of cases he who has the position of vantage in a treaty, if he is greatly superior in respect to power, gradually usurps the sovereignty properly so called. This is particularly liable to happen if the treaty is perpetual, and if it contains the right to introduce garrisons into towns, as the Athenians did, when they allowed appeals to be made to them by their allies something that the Spartans had never done. The rule of the Athenians over the allies in those times Isocrates compares to the rule of a king. With similar provocation the Latins complained that under the shadow of an alliance with Rome they were experiencing subjection as slaves. Thus the Aetolians declared that there now remained to them only a vain appearance and empty name of liberty; the Achaeans, afterward, that ‘What was, in appearance, an alliance, was already a slavery, dependent on another’s will.’ According to Tacitus, Civilis the Batavian complains of the same Romans, declaring that his people ‘were no longer regarded as allies, as formerly, but as bondmen’; and in another passage, that ‘A pitiable servitude is falsely called peace.’
In Livy, too, Eumenes says that the allies of the Rhodians are allies in name only, being in reality subject to the rule of another and accountable to it. The Magnesians also declared that Demetrias, though independent according to appearances, was in reality at the beck and call of the Romans.’ Thus Polybius observes that the people of Thessaly were in appearance independent, but in reality under the rule of Macedonia.
11. When such things happen, with the result that non-resistance on the part of the weaker passes over into the right of ruling on the part of the stronger there will be opportunity to discuss this point elsewhere then either those who had been allies become subjects, or there is at any rate a division of sovereignty such as, according to our previous statement, may take place.
XXII. That sovereignty may be held by him who pays tribute.
There are some allies who pay a definite amount,’ either as reparation for wrong-doings, or as a contribution to secure protection; these are ‘allies subject to tribute,’ as Thucydides calls them. Such were the kings of the Jews, and of the nations near them after the time of Antony, being ‘under agreement to pay tribute,’ as Appian says.
I see no reason for doubting that such nations may possess sovereignty, although the confession of weakness does detract somewhat from their standing.
XXIII. That sovereignty may be held by him who is bound by feudal law.
1. To many the problem of sovereignty in relation to feudal tenure seems more difficult; it can, however, be easily solved in the light of what has been said. In discussing this type of contract, which is peculiar to the Germanic nations and is found only where the Germans settled, two elements need to be considered, the personal obligation, and the property right.
2. The personal obligation is the same whether a person by feudal law possesses the actual right of governing, or anything else, even though situated in a different place. Now, as such an obligation would not deprive an individual of the right of personal liberty, so it does not deprive a king or a state of sovereignty, which is political freedom.
This is most clearly seen in the case of free fiefs, which are called frank-fiefs. These do not consist in any property rights but in a personal obligation only. Such fiefs are, in fact, only a kind of unequal alliance, which we have been treating; of the contracting parties one engages to render service to the other, the other in turn to furnish defense and protection. Suppose even that the service of the vassal had been promised against all men in the case of the fief now called a liege fief (formerly the term had a wider application); that in no degree lessens his right of sovereign power over his subjects not to speak of the fact that in such a promise there is always an unexpressed condition, provided the war be lawful, which is to be dealt with later.
3. So far as the property right is concerned, if one holds by feudal law, the right of governing may be lost on the extinction of a family, or even on account of certain crimes. But in the meantime the power of the vassal does not cease to be sovereign; for, as we have often said, the object is one thing, the manner of possession quite another. I see that a number of kings were placed in authority by the Romans with the stipulation that if the royal family should become extinct the political power should revert to them; this fact was remarked by Strabo, with reference to Paphlagonia and some other kingdoms.
XXIV. Distinction between the right of sovereignty and the exercise of the right, with examples.
In the case of political power not less than in that of private ownership it is necessary to distinguish between the right and its exercise, or the first act and the second. For a king who is an infant possesses political power but is unable to use it. A king, again, may be insane or a captive; and a king may be in foreign territory and live in such a way that freedom of action in respect to a dominion existing elsewhere is not permitted to him.
In all these cases it is necessary to provide guardians, or regents. And so Demetrius, being in the power of Seleucus, and unable to live with sufficient freedom, forbade that reliance be placed on his seal or his letters, and desired that the administration in all respects be carried on as if he were dead.