1 Either ' sufficient security ' (13 was last legally settled (8 & 9 W. & 14 Car. II. cap. 12) or a cer- III. cap. 30), W. of N. bk. i. ch. x. tificate from the parish where he vol. i. pp. 146, 147.
republics where the number of freemen are small and election in the hands of a few, citizenship is of great im portance, but in a large city such as Rome it was a very small compliment, and accordingly they made whole provinces citizens at once. In Britain one born within the kingdom is under the protection of the laws, can purchase lands, and if of the established religion, can be elected to any office. In great states1 the place of birth makes a citizen, and in small ones the being born of parents who are citizens. In like manner the incapacity of being a citizen is different in different countries. By the old laws of Rome, and of every barbarous nation, the goods of every person who came within their territories were confiscated, and he himself became a slave to the first person who happened upon him. By a law of Pomponius, if he came from a nation at peace with Rome, he was treated as the law prescribed-. In barbarous countries they have but one word to signify a stranger and an enemy. At Rome every stranger was hostis*, as they considered all nations as their enemies, and the person who came from them as a spy. The Litchfield man of war was shipwrecked on the Emperor of Morocco's dominions, and because we had no league with him, the whole crew were made slaves. Our sovereign so far complied with 1 MS. reads ' estates.' tius nor Cocceius mention Poma ' Si cum gente aliqua neque ponius or give the reference to amicitiam, neque hospitium, ne- the Digest. Montesquieu (Esprit que foedus amicitiae causa factum deslois, liv. xxi. chap. 14) however, habemus, hi hostes quidem non in quoting the passage, attributes sunt; quod autem ex nostro ad it to Pomponius, and gives the eos pervenit, illorum fit, et liber reference as ' Leg. 5, § 2, if. de homo noster ab iis captus servus capitivis^ which may account for fit et eorum. Idemque est, si ab the phrase ' a law of Pompoillis ad nos aliquid perveniat.' nius.'
Pomponius in Digest, lib. xlix. 3 ' Ipsa vox hostis veteri Latio tit. xv. 5. The words are quoted nihil nisi externum significabat.'
in Grotius, De hire belli et pacts, lib. Grotius, De iure belli et pacts, lib. ii.
ii. cap. xv. § 5, but neither Gro- cap. xv. § 15.
the custom of the place as to ransom them1. When they2 found the advantage of exporting their own goods, and importing those of others, they would naturally allow those who trafficked with them to be in a state of safety, both with respect to his person and goods, and would allow him an action if injured in either. This is the state of aliens in most of the countries of Europe at present. In Britain an alien cannot purchase nor inherit land property, nor maintain a real action. He cannot make a will because it is the greatest extension of property, and is founded on piety and affection to the dead, which an alien can have but few opportunities of deserving. By a particular statute an alien merchant, but not a tradesman, may have a lease of a house. This arises from a whim sical principle that it would discourage our own tradesmen to allow foreigners to settle among them 3. This is the state of aliens in most countries.
In Britain the manner of obtaining citizenship is twofold. First, by letters of denization, which is a part of the king's prerogative. Secondly, by a bill of naturalization, which is an act of parliament. By the former an alien is capaci tated to purchase lands and to transmit them to posterity if subjects of Great Britain, but he cannot inherit, because 1 The Litchfield was wrecked man) from holding a lease of a on 29 Nov. 1758, and the crew house. The 'whimsical principle' were ransomed for 225,000 hard is enunciated in the preamble, dollars in April 1760. See Gen- which denounces the 'infinite tleniaris Magazine, 1760, pp. 200, number of strangers and aliens of 391; and 1761, pp. 359 63. foreign countries and nations 2 I.e. the nations mentioned a which daily do increase and few lines higher up. multiply within his grace's realm 3 The judges decided that a and dominions in excessive nummerchant might hold a lease of bers, to the great detriment, a house. Coke, Little/on, 2b. The hindrance, loss and impoverish-'particularstatute'is32Hen.VIII. ment of his grace's natural true c. 16, which prohibits a ' trades- lieges and subjects of this his man' (i.e., as usual in Adam realm, and to the great decay of Smith, an artificer or handicrafts- the same.'
as the king is heir of aliens he may transfer his own right, but cannot take away the right of the person who ought to succeed. A denizen alien may inherit an estate bequeathed to him, but to be capable of inheriting in all respects, an act of naturalization is necessary, by which he has a right to all the privileges of a freeborn subject. When king William came to the throne, naturalized aliens were made peers. As many Dutch families came over with him, it was natural to suppose that he would favour them with every privilege. The English, offended at this partiality, made an act declaring that there should be no act of parliament for the future by which they should be allowed such emoluments l. As in most countries they are [not] allowed the right of transmitting lands, it was [un] necessary that they should have an action for it. Neither in England nor in Germany are aliens allowed to make a will 2. In Saxony there was made a very equitable law that aliens from countries where they were allowed no privileges, should be allowed 1 The act, which has been in either house of parliament, already somewhat obscurely re- unless such clause or words ferred to on p. 13 above, is be first inserted or contained i Geo. I. cap. 4. which provides therein.' The provision was that ' no person shall hereafter be often repealed by special act naturalised unless in the bill (see Margrave's Coke upon Litexhibited for that purpose there tleton, 1788, p. 129 a, note). be a clause or particular words 2 A mistake as regards alien inserted to declare that such per- friends in England (see Blackson shall not thereby be enabled slone,CotntHentaries,vol. i. p. 372). to be of the privy council, or a Matthew Bacon in his New member of either house of parlia- Abridgement of the Law, 1736, ment, or to take any office or which Adam Smith possibly place of trust either civil or mili- followed in this account of aliens, tary, or to have any grant of says nothing about the matter, lands, tenements, or heredita- s. v. 'aliens.' As to Germany, ments from the crown to himself Vattel, Droit des gens, 1758, liv. ii. or to any other person in trust ch. viii. § 112, does not clearly for him; and that no bill of natural- decide the point, isation shall hereafter be received none among them1. In Rome it was the right of citizens only to make a will.
It is to be observed with respect to aliens, that they are aliens amis, or aliens ennemie2. If a number of the latter should make war upon the king, or injure him, they cannot be prosecuted for high treason, because he is not their lawful sovereign, and they owe no allegiance to him. If the laws of nations do not protect them, they must be dealt with by martial law. Aliens, however, who live in the country, are protected by the laws, and as they thus own allegiance to the king, they may be prosecuted for treason, and punished accordingly. Whatever makes a freeborn subject guilty of treason makes an alien ami guilty of it. An alien ennemie, that is one who comes from a country at war with us, if he give information to his natural sovereign, is also guilty of treason.
H 1 6. Of the Rights of Subjects] Having thus considered who are properly the subjects of a state, we come now to treat of the crimes of the sovereign against the subject, or the limitations of his power.
On this branch of public law it is impossible to speak with any degree of precision. The duties of one sub ject to another are sufficiently ascertained by the laws of every country and the courts of justice, but there are no judges to determine when sovereigns do wrong. To suppose a sovereign subject to judgement, supposes another sovereign. In England it can be exactly as- 1 ' Le droit d'aubaine est 6tabli preserved here and ten lines en Saxe; mais le souverain juste lower down, as it apparently et dquitable n'en fait usage que represents a careful though centre les nations qui y assuje- unsuccessful attempt to reprotissent les Saxons.' Vattel, Droit duce law-French. Elsewhere in des gens, liv. ii. ch. viii. § 112. the MS., 'enemy' is spelt in the 8 The spelling of the MS. is ordinary way.
certained when the king encroaches on the privileges of the people, or they on that of the king, but none can say how far the supreme power of king and parliament may go. In like manner where the absolute power of sovereignty is lodged in a single person, none can tell what he may not do, with accuracy. God is the only judge of sovereigns, and we cannot say how he will determine. All decisions on this subject have been made by the prevailing party, and never coolly by a court of justice, and can give us no light into the subject. Our best notions of it will arise from considering the several powers of government and their progress.
In the beginning of society all the powers of govern ment are exercised precariously. The majority may make war, but cannot force the minority to it, though this power was the first that was exerted absolutely. The judicial power was much longer executed precariously than the federative. In every country the judges once only inter posed as mediators, and sometimes the panel had his choice to refer his cause to the judge or to God, by combat, hot water, and, nay, if the sentence of the judge did not please the panel, he might challenge the judge to fight him in the court1. In time, however, it became absolute. The legislative power was absolute whenever it was introduced, but it did not exist in the beginnings of society, it arose from the growth of judicial power. When the judicial power became absolute, the very sight of a judge was terrible, as life, liberty, and property depended on him. Tacitus tells us that Quintilius Varus, having conquered a part of the Germans, wanted to civilize them by erecting courts of justice, but this so irritated them that they massacred him and his whole army2. To a rude 1 Montesquieu, Esprit des lots, to be taken from Florus, Epitome liv. xxviii. ch. xxvii. rerum Romanarum, lib. iv. cap.
2 The particular information xii. 30-38. It is not all to be found contained in thissentence appears either in Tacitus or in Montespeople a judge is the most terrible sight in the world. When property was extended, it therefore became neces sary to restrain their arbitrary decisions by appointing strict rules which they must follow. Thus the legislative power was introduced as a restraint upon the judicial. In Britain the king has the absolute executive and judicial power. However, the Commons may impeach his minis ters, and the judges, whom he appoints, are afterwards independent of him. The legislative power is absolute in the king and parliament. There are, however, certain abuses which no doubt make resistance in some cases lawful, on whatever principle government be founded.
Suppose that government is founded on contract, and that these powers are entrusted to persons who grossly abuse them, it is evident that resistance is lawful, because the original contract is now broken. But we showed before that government was founded on the principles of utility and authority. We also showed that the principle of authority is more prevalent in a monarchy, and that of utility in a democracy, from their frequent attendance on public meetings and courts of justice. In such a govern ment as this last, as the principle of authority is, as it were, proscribed, popular leaders are prevented from acquiring too great power, because they are not allowed to continue in office till they acquire any great ascendency; but, still, there is a respect paid to certain offices, whoever be the person that exercises them. In Britain both principles take place. Whatever be the principle of alle giance, a right of resistance must undoubtedly be lawful, because no authority is altogether unlimited. Absurdity of conduct may deprive an assembly of its influence as well as a private person, an[d] imprudent conduct will take away all sense of authority. The folly and cruelty quieu, Esprit des his, liv. xix. ch. ii, to hiss,' is erroneously attributed where the Germans' saying to the to Tacitus instead of Florus. Roman advocates, 'Viper, cease of the Roman emperors make the impartial reader go along with the conspiracies formed against them.
It is to be observed that the right of resistance is more frequently exerted in absolute monarchies than in any other, because one man is more apt to fall into imprudent measures than a number. In Turkey eight or ten years seldom pass without a change of government. The same degree of ill usage will justify resistance to a senate or body of men. It must be allowed that resistance is in some cases lawful, but it's excessively difficult to say what an absolute sovereign may do or may not do, and there are different opinions concerning it. Mr. Locke says that when a sovereign raises taxes against the will of the people resistance is lawful1, but there is no country besides England where the people have any vote in the matter. In France the king's edict is all that is necessary, and even in Britain it is but a very figurative consent that we have, for the number of voters is nothing to that of the people. Exorbitant taxes no doubt justify resistance, for no people will allow the half of their property to be taken from them; but though the highest propriety be not observed, if they have any degree of moderation, people will not complain. No government is quite perfect, but it is better to submit to some inconveniences than make attempts against it.
Some other writers allege that the king cannot alienate any part of his dominions2. This notion is founded on the principle of the original contract, by which indeed, though a people were willing to submit to one government, they will not have one of another's choosing. This doctrine is, however, groundless. In France and Spain great part of 1 Locke, Civil Government, §§ Cocceius on Grotius, De iure belli 138-140, as quoted by Hume, ' Of et pads, lib. i. cap. iii. § 12; Vattel, the Original Contract,' Essays, Droit des gens, liv. i. ch. i. § 17; 1748, p. 307. Hutcheson, System of Moral Phi- 2 E.g. Pufendorf, De iure natu- losophy, vol. ii. pp. 297-299. rae et gentium, lib. viii. cap. v. § 9; the dominions have been given to the king's children as a portion without any complaint; when Florida was put into our hands, they never made any opposition. The King of Spain and Czar of Moscovy can even alter the succession as they please. This was in general the case in all feudal jurisdictions, they were divisible1 at the pleasure of the lord. It was but lately that the right of primogeniture took place in the principalities of Germany. It is alleged that the King of France cannot alter the Salic law, by which daughters cannot succeed to the crown. This law was owing to the power of the princes of the blood, who would not allow the succession to go past themselves. But if France had been as destitute of nobility as Britain was at the accession of the present family, the Salic law might have been altered as easily as any other law.
It is hard to determine what a monarch may or may not do. But when the summa potestas is divided as it is in Britain, if the king do anything which ought to be consented to by the parliament, without their permission, they have a right to oppose him. The nature of a parlia mentary right supposes that it may be defended by force, else it is no right at all. If the king impose taxes or continue them after the time is expired, he is guilty of breach of privilege. James II attempted some impositions of this sort upon importation. In the petition of right2 it is expressly appointed that the taxes shall not continue a moment after the time determined by act of parliament.
When the parliament saw the crown going to James II, who was a Roman Catholic, they appointed two tests, to wit, an abjuration of the Pope and the oath of supremacy, and that every person within three months after his acceptance of any office should take the sacrament after the form prescribed by the Church of England. King James employed Roman Catholics both in the army and 1 See below, p. 118. 2 A slip for ' Bill of Rights.'
privy council, and besides, appointed persons entirely un qualified to the treasury, and broke in upon the privileges of the Universities. He also assumed a power of dis pensing with the law in cases where he himself was no way concerned. Some of the bishops, merely for doing what every British subject has a right to do, to wit, remonstrating against such proceedings, were sent to the Tower. Nothing could more alarm the nation than this attack upon the bishops. One Sharp preached against popery, the religion of the king, upon which the bishop of London was ordered to suspend him, but he only cautioned him against such practices. The king, not pleased with this, created a court of high commission, which had been long abrogated and discharged ever after to be erected, and summoned both the bishop and Sharp to appear before it. The king, perceiving the disgust of the people, and thinking it proceeded from the fear of those possessed of abbey lands, lest they should be taken from them, and from a fear of a change in the religion of the country, he declared that he would grant liberty of conscience to all, and retain every one in the possession of the Church lands. This plainly showed his intention to change the religion of the country, which is the most difficult thing in the world. It is necessary before a religion be changed that the opinions of the people be changed, as was done by Luther, Calvin, John Knox, and others before the Reformation. King James then applied to the army, but found they by no means sympathized with him.
He, in return, told them that he would never any more bring down his sentiments to theirs, nor consult them on any occasion1. It was no wonder that by such practices 1 He ' sullenly told them that 768. But the rest of the account for the future he would not do of the causes of the Revolution them the honour to ask their appears to be founded on Burnet, advice.' Rapin, History of Eng- History of his Own Time, vol. i.
land, transl. by Tindal, vol. ii. p. pp. 621-714, rather than Rapin.
the Revolution was brought about, and the family set aside, for the whole nation was disposed to favour the Prince of Orange. They might justly have passed by the whole family, but they generously dispensed with the rigorous law which corrupts the blood with the forfeiture of the estate, and bestowed the crown on his two Protes tant daughters. Their brother, on account of the suspicions of his being a Papist, as he had been educated in that religion, was rejected. The present family, being the nearest Protestant heirs, was by an act of parliament settled in the government, and it was enacted that no prince, unless a Protestant, shall sit on the throne of Britain. Thus King James, on account of his encroach ments on the body politic, was with all justice and equity in the world opposed and rejected.
Thus we have considered man as a member of a state.
As ecclesiastics and laymen are two grand divisions of men in a state, under this head too might be considered ecclesiastic law and the respective rights of these two bodies of men. Here too we might consider military law, which arises from considering the state as divided into two bodies, civil and military. But these are foreign to our purpose.
[DIVISION II.] DOMESTIC LAW WE come now to consider man as a member of a family, and in doing this we must consider the threefold relation which subsists in a family. These, to wit, between husband and wife, parent and child, master and servant '.
First of these we shall consider husband and wife. In every species of animals the connexion between the sexes is just as much as is necessary for the propagation and support of the species. Quadrupeds, whenever the female impregnates, have no farther desire for each other; the support of the young is no burden to the female, and there is no occasion for the assistance of the male. Among birds some such thing as marriage seems to take place, they continue the objects of desire to each other, their connexion remains for a considerable time, and they jointly support the young; but whenever the young can shift for themselves all further inclination ceases 2. In the human species women by their milk are not capable of providing long for their children. The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual3. In countries, however, where Christianity is not established, the husband possesses an 1 Hutcheson, System of Moral * Hutcheson, Introduction to Philosophy, vol. ii. p. 149. Moral Philosophy, p. 257; System 2 Locke, Civil Government, §§ 79, of Moral Philosophy, vol. ii. pp. 80; Hume, ' Of Polygamy and 150, 161.
unlimited power of divorce, and is not accountable for his conduct. In ancient Rome, though they had the power of doing it, yet it was thought contrary to good manners l. We may observe an utility in this constitution of our nature that children have so long a dependence upon their parents, to bring down their passions to theirs, and thus be trained up at length to become useful members of society. Every child gets this piece of education, even under the most worthless parent.
On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should [be] begun and ended, and what are the particular rights and privileges of each.
The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family, and come to the succession instead of lawful ones. This real utility, however, is not the proper foundation of the crime. The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and ac cordingly they are disposed to resent and punish it. The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring. It is not from the particular act that the jealousy arises, but he considers her infidelity as an entire alienation of that preference to all other persons which she owes him. This is the real idea he has of it, as may appear from the following con sideration. The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous. The real idea that a son has of a father is the director of his infancy, the supporter of his helplessness, his 1 Sell, 'to exercise the power Opera omm'a, 1744-8, vol. iv), lib. i.
of divorce.' Heineccius, Antiqiti- adp. § 45; Montesquieu, Esprit latum Romanarum hmspruden- des lot's, liv. xvi. ch. xvi. tiam illustrantium syntagma (in guardian, pattern and protector. These are the proper filial sentiments. The father's idea of a son is of one that depends upon him, and was bred up in his house or at his expense, by which connexion there should grow up an affection towards him; but a spurious offspring is dis agreeable from the resentment that arises against the mother's infidelity.
In those countries where the manners of the people are rude and uncultivated, there is no such thing as jealousy, every child that is born is considered as their own. The foundation of jealousy is that delicacy which attends the sentiment of love, and it is more or less in different countries, in proportion to the rudeness of their manners. In general, wherever there is little regard paid to the sex, infidelity is little regarded, and there will be the greatest looseness of manners. Agreeable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her, but for carrying her away. In the Odyssey she talks before her husband of that action without reserve. In Sparta it was common for them to borrow and lend their wives. When manners became more refined, jealousy began, and rose at length to such a height that wives were shut up, as they are among the Turks at this day. As mankind became more refined, the same fondness which made them shut up women made them allow them liberties. In the latter ages of Greece women were allowed to go anywhere. This same fondness, carried to a high degree, gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France. Thus we may observe the prejudice of manners, with respect to women, in the different periods of society.
Though there was little or no regard paid to women in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures. In North America the women are consulted concerning the carrying on of war, and in every important undertaking1. The respect paid to women in modern times is very small; they are only put to no trouble for spoiling of their beauty. A man will not exempt his friend from a laborious piece of business, but he will spare his mistress. When the in fidelity of the wife is considered as an injury to the husband, it is necessary that unmarried women should be laid under restraints, that when married they may be accustomed to them. Hence the origin of punishment for fornication.
We come now to consider how this union is begun. As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it. This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression. In the infancy of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, though it was reckoned indecent to exercise it unless for an enormous crime. The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families. For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible. In ancient Rome the husband was sovereign lord of life and death in all matters belonging to his own family.
In Rome three kinds of marriages took place2: First, by confarreation, a religious ceremony; Secondly, by coemption 3, when the husband bought his wife; Thirdly, by use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.
1 Lafitau, Mceitrs des sauvages i. tit. x. § i.
2 Heineccius, Antiq. Rom. lib. and below, p. 79.
The power of divorce extended to the wife after female succession took place. A woman possessed of a great fortune, who lived happily before marriage and had so much in her own power, would not incline to give it all to her husband. The lawyers therefore invented a new kind of marriage in favour of heiresses, which was called the deductio domi, or marriage by contract; certain terms were agreed on between the parties, and then the husband came and carried her home. To prevent prescription taking place, she went away three or four days every year, which, according to the form of the contract, secured her fortune *. Thus the wife became equally independent with the hus band, and had equally the power of divorce. As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.
This form of marriage is pretty similar to the present, with this material difference however, that it did not legitimate the children nor preserve the honour of the women 2. The Roman form caused great disorders. When the parties separated, which was often the case, they married others, and very often the women went through five or six husbands3. This so corrupted their morals that about the end of the monarchy there was scarce a great man that was not cuckolded. The disorder came to such a height 1 ' Deductio domi ' should be from Heineccius' statement, ' deductio in domum.' This was ' Contracto sine uno horum an incident of all kinds of mar- rituum matrimonio, uxor non riage. The ' new kind of mar- conveniebat in manum mariti, riage' is thus described by neque adeo fiebat materfamilias, Heineccius: ' Si itaque uxor sed matrona.' Antiq. Rom. lib. i. nollet in manum convenire: in- tit. x. § 14.
strumentaquidemdotaliaconficie- 8 ' Nobiles feminae non conbantur, et domum deducebatur, sulum numero sed maritoruin sed dabat ilia operam ut saltim annos suos computant' Seneca, tres noctes a marito abesset' De benef. lib. iii. cap. xvi, quoted in Antiq. Rom. lib. i. tit. x. § 14. Heineccius, Antiq. Rom. lib. i.
2 Perhaps a rash inference adp. § 46.