The Rights of Subjects

The limitations of the sovereign’s power

It is impossible to be precise regarding this branch of public law.

The duties of one subject 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. [No world government yet] To suppose a sovereign subject to judgement, supposes another sovereign.

In England it can be exactly ascertained when the king encroaches on the people’s privileges, or the people on the king’s privileges.

• But none can say how far the supreme power of king and parliament may go.
• Similarly, no one can tell accurately what a sovereign may not do.

God is the only judge of sovereigns. We cannot say how he will decide. All decisions on sovereigns have been made by the prevailing party, and never coolly by a court of justice. 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 government are exercised precariously. The majority may make war, but cannot force the minority to it. The power to wage war was the first to be exerted absolutely.

The judicial power was much longer executed precariously than the federative. In every country, the judges interposed as mediators only once. Sometimes, the panel could choose to refer his cause to the judge or to God, by=

• combat,
• hot water,
• challenging the judge to fight him in the court, if the judge’s sentence did not please the panel.

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 army. To a rude people, a judge is the most terrible sight in the world.

When property was extended, it became necessary to restrain their arbitrary decisions by appointing strict rules. Thus, the legislative power was introduced as a restraint on the judicial.

In Britain, the king has the absolute executive and judicial power.

• He appoints the judges who are independent of him afterwards.
• The Commons may impeach his ministers.
• The legislative power is absolute in the king and parliament.

There are, however, certain abuses which makes resistance lawful. If a government is founded on contract, and that these powers are abused, then 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=

• the principle of authority is more prevalent in a monarchy
• the principle of utility is more prevalent in a democracy

This is from their frequent attendance on public meetings and courts of justice.

In a democracy, the principle of authority is proscribed. Popular leaders are prevented from acquiring too much power because they are not allowed to continue in office until they acquire any great ascendency. But there is still a respect paid to certain offices, whoever the person may be.

In Britain both principles take place. Whatever is the principle of allegiance, a right of resistance must be lawful because no authority is unlimited.

Absurdity of conduct may deprive an assembly of its influence as well as a private person.

• The folly and cruelty of the Roman emperors make us go along with the conspiracies against them.

The right of resistance is more frequently exerted in absolute monarchies because one man is more apt to fall into imprudent measures than many men.

• In Turkey, 10 years seldom pass without a change of government.

The same degree of ill usage will justify resistance to a senate or body of men.

Resistance is in some cases lawful. But it is excessively difficult to say what an absolute sovereign may do or may not do.

• Mr. Locke says that when a sovereign raises taxes against the will of the people, resistance is lawful.
  • But only England is where the people have any vote in the matter.
    • In France, only the king’s edict is needed.
  • Even in Britain, we only have a very figurative consent because the number of voters is few relative to the population size.

Exorbitant taxes justify resistance because no one will allow half of their property to be taken from them. But moderate people will not complain. No government is 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 dominions because of the principle of the original contract. They argue that a person can choose whatever government they want to be part of, and refuse to be part of a government that they didn’t like. However, this doctrine is groundless.

• In France and Spain, most of the dominions have been given to the king’s children without any complaint.
• When Florida was put into British hands, they never opposed it.
• The King of Spain and Czar of Moscow can even change the succession as they please.

This was generally the case in all feudal jurisdictions.

• They were divisible at the pleasure of the lord.
• It was only recently that the right of primogeniture took place in Germany.
• It is alleged that the King of France cannot alter the Salic law which=
  • prevents daughters from succeeding to the crown.
  • was created by the power of the princes of the blood.
    • They 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.

The power of government (summa potestas) is divided in Britain. The parliament has a right to oppose the king if he does anything which requires their consent, but does not get their permission. The nature of a parliamentary right supposes that it may be defended by force. If the king imposes taxes or continue them after the time is expired, then he is guilty of breach of privilege.

James 2nd, a Roman Catholic, attempted some impositions of this kind on imports. The petition of right expressly said that the taxes shall not continue after the time set by Act of parliament. When the parliament saw the king violating this, they appointed two tests=

1. an abjuration of the Pope
2. the oath of supremacy

• 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 privy council.
• appointed persons entirely unqualified to the treasury, and
• broke in on the privileges of the Universities.
• dispensed with the law in cases where he himself was not concerned.

Some of the bishops remonstrating against such proceedings and were imprisoned. Every British subject has a right to do so.

This attack on the bishops alarmed the nation. Bishop John Sharp preached against the Catholic Pope. The bishop of London was ordered to suspend him, but he only cautioned him against such practices. The king was not pleased with this so he=

• created a court of high commission and summoned both the bishop and Sharp to appear before it
• he perceived the people’s disgust which he thought came from=
  • the fear of owners of the abbey lands that these would be taken away,
  • a fear of a change in the country’s religion.

Therefore, James II declared that he would=

• grant liberty of conscience to all, and
• retain every one in the possession of the Church lands.

This showed his intention to change the country’s religion, which is the most difficult thing in the world. Before a religion is changed, the people’s opinions must be changed. This was done by Luther, Calvin, John Knox, and others before the Reformation.

King James then applied to the army. But he found that they did not sympathize with him. He, in return, told them that he would never again:

• bring down his sentiments to theirs, nor
• consult them.

By such practices:

• the Revolution was brought about, and
• the family set aside because the whole nation favoured the Prince of Orange

They might justly have passed by the whole family. But they thoroughly implemented the rigorous law.

• It corrupted their family with the forfeiture of the estate
• It bestowed the crown on his two Protestant daughters
  • Their brother was rejected because he was=
    • suspected to be a Popist
    • educated in Catholicism

The present family is the nearest Protestant heirs. It was settled in the government by an act of parliament. It was enacted that only a Protestant prince shall sit on the British throne. Thus King James was most justly and fairly opposed and rejected because of his encroachments on the body politic.

Thus, we have considered man as a member of a state. The two grand divisions of men in a state are=

1. Ecclesiastics
2. Laymen

Under this is ecclesiastic law and the rights of ecclesiastics and laymen. We could also consider military law. This arises from viewing the state as divided into civil and military. But these are foreign to our purpose.