Chap 13: Little Republics

Chap 13. the little Republics in Europe.

  • We shall next consider:
    • the origin of the little European republics, and
    • the rights of sovereign and subject.

[54]

The Origin of Republics

  • In some countries, the provinces far from the seat of government sometimes became independent.
    • This was the case in most of Germany and France during Charlemagne’s time.
  • Hugh Capet was chief justiciary.
    • He got the government into his hands, but took only the title of the King of France.
  • The Pope raised disturbances in Germany.
    • He hindered the Emperor Otho from getting Italy for a long time.
    • But when he got it, he could not keep it because of its distance.
  • Every little town formed itself into a republic, with a council of its own choosing at its head.
    • Some German towns, such as Hamburgh, were well fortified.
    • They assumed the same privileges, and still retain them in some measure.
  • The Italian towns are governed by a hereditary nobility, though the ancient republics were perfectly democratic.
    • In Venice and Holland, the people freely gave up the government, because they could not support the trouble which it gave them.
    • The Dutch and Swiss republics were formed into a respublica foederata.
    • Their strength depends on this.

 

The Manner Of Voting

  • When there are 100 votes and three candidates, it is possible that the person who is most odious may be elected.
    • If A, B and C be candidates, there may be 34 votes for A, and 33 for B, and 33 for C.
    • Thus though there are 66 votes against A, he wins.
  • This must be still more the case when a criminal is brought before this assembly.
    • 34 may think him guilty of murder, 33 of manslaughter, and 33 of chance medley.
    • Yet he must suffer for murder.
  • To prevent this, in some of these republics they always bring the question [55] to a simple state.
    • Is he guilty of murder or not?
  • If there are three candidates, they put a previous vote, by which they exclude one of the candidates.
    • In their senates, the president never has a deliberative vote, but only a decisive one.
      • Because they will allow no member to have two votes.
  • When there is an equality on both sides, nothing can be done.
    • Therefore, the business is not rejected, but referred to another meeting.

 

Chap 14: the Rights of Sovereigns

  • We shall now consider:
    • what duty is owing to the sovereign, and
    • what is the proper punishment of disobedience.
  • Every attempt to overturn this power is considered as the greatest crime in every nation.
    • It is called high treason.
  • There is a great difference between treason in monarchies and treason in republics.
    • In monarchies, treason is an attempt on the king.
    • In republics, treason is an attempt on the people’s liberties.
    • From whence we may see how the maxim of assassination came to be established in republics, and not in monarchies.
  • It is the interest of monarchies:
    • that the person in authority be defended and
    • that no person be allowed to enquire into them.
  • The laws of monarchy are therefore unfavourable to the assassination of tyrants.
  • In a republic, the definition of a tyrant is quite clear.
    • He is one who:
      • deprives the people of their liberty, levies armies and taxes, and
      • murders the citizens as he pleases.
  • This man cannot be brought to a court of justice.
  • Therefore, assassination is reckoned just and equitable.
  • The present republican governments in Europe, do not encourage this maxim.
    • Because monarchies now set the fashion, and other governments copy their pattern.
  • According to our present notions, Oliver Cromwell’s assassination is most opprobrious.
    • But it would have [56] appeared otherwise when the Greek and Roman republics set the fashion.

 

  • Having noticed this difference between monarchical and republican governments, we shall next consider the crimes of treason.
  • There are three kinds of treason or attacks upon the essence of government.
    1. Perduellio, or an attempt to subvert the established government by force or rebellion.
    2. Proditio, or the joining of the enemy, delivering up to him forts, hostages, etc., or the refusing to deliver up garrisons, etc., to the government when they demand them.
      • This is called high treason.
    3. Laesa maiestas, or an insult on the magistrate’s authority.
      1. This is not so heinous a crime as the other two.
  • These were the kinds of treason among the Romans.
    • Under the emperors these were blended.
      • A breach of the most trifling, such as throwing a stone at the emperor’s statue, was punished with death.
      • Under Honorius, a conspiracy against any of the emperor’s ministers was high treason.

 

  • The crimes accounted treason by the English law are the following.
    • First, killing the king, wishing his death, or providing arms against him, with every attempt of this kind are punished capitally.
      • The gunpowder plot was never executed, yet the conspirators were put to death.
      • Had they intended only the death of some other person, they would not have been executed.
    • Secondly, corrupting the king’s wife or oldest daughter, because these are [57]affronts to the king, and may introduce a spurious offspring to the crown.
      • If it be a younger daughter, the crime is not so great.
    • Thirdly, levying a force against the king, aiding his enemies, etc.
    • Fourthly, attempting the life of the chancellor or [judge of] assize when sitting in court; at another time it is only felony.
      • Edward I, however, made the mere wounding of them not treason.
    • Fifthly, counterfeiting the king’s great or privy seal, which is accounted an usurpation of the government, because by them the acts of government are carried on.
    • Sixthly, counterfeiting of the king’s coin, though this should not properly be treason, because it is no attempt on the essence of government.
      • This crime is no more than forgery, and is usually punished as such.
  • These were the branches of treason before the reformation.
  • At this period, Henry VIII declared himself head of the Church.
    • He assumed the sovereignty in ecclesiastical affairs as a part of his prerogative.
    • He established for this purpose the court of high commission to judge of ecclesiastics.
      • This was abolished by Mary and restored by Elizabeth.
  • There was some danger then from the Popish party.
    • The Catholic religion was considered as influencing the being of government.
    • Therefore, it was declared high treason to bring in any bull of the Pope, agnus dei, or whatever might support his authority to support popish seminaries, or conceal [58] popish priests.
  • This law, however proper then, should now be repealed, as there is no more need for it.
    • No notice would now be taken of entertaining a popish priest.

 

  • During the civil war and usurpation of Cromwell, it became a question how far it is lawful to resist the power of government.
    • The court party believed the king to be absolute.
    • The popular doctrine was that the king:
      • is only a steward, and
      • may be turned out at the pleasure of the people.
  • After the restoration, the court party got the better
    • The other party became odious.
  • At the Revolution, the Stewart family were set aside for excellent reasons.
    • The succession established in the present family.
  • By this, the court party was turned out, and began to influence the dispositions of the people.
    • It was therefore enacted that whoever should speak against the present succession should be guilty of treason.
    • This is now altogether unnecessary, because the government is now so well established.
      • There is no reason to take notice of those who write or speak against it.

 

  • In Scotland, the laws were very confused with regard to treason.
    • Prejudicing the people against the king, or the king against the people, were made high treason.
    • But by the Union they are made the same with those of England.
  • These are the laws of Britain with respect to treason.
    • They subject the person who breaks them to the highest penalties.
    • He is half hanged.
    • His entrails are taken out.
    • He forfeits his estate, his wife’s dowry etc, [59] and corrupts his blood, so that his children cannot succeed.

 

  • Besides these, there are other offences against the crown which do not subject to the pains of high treason, but to those of felony.
    • First, the making of coin below the standard and the exportation of coin.
      • From the notion that opulence consists in money, the parliament resolved that every one might have bullion coined without any expense of mintage.
      • Thus coined money was never below the value of bullion, and therefore there was a temptation to melt it down.
      • This occasioned the act declaring this practice felony.
    • Secondly, any attempt to increase the coin, as by the philosopher’s stone, was made felony.
    • Thirdly, destroying the king’s armour is also felony.
    • Fourthly, any attempt against the king’s officers is also felony, and in general whatever is felony against another person is felony against the king.
  • If his pocket were picked it would be felony against him, as it is against any private gentleman, but the former offences are committed against him as king.
  • There are some other small offences which may be done to the king which do not amount to felony, but incur what is called a praemunire.
  • This is necessary to explain.
  • In the reigns of King John and Henry III, [60] England was entirely under the dominion of the Pope.
  • His legate brought over bulls, and raised contributions as he pleased, and long before the Reformation it was necessary to defend the king’s liberty against the Pope.
  • The king sometimes appointed one to a benefice, and the Pope another, and the Pope’s candidate was often preferred.
  • A law was therefore made forbidding any bull to be brought from Rome, or any appeal to be carried thither, and subjecting every person who refused to ordain the king’s presentee, to the penalties of praemunire regem, i.e. to fortify the king against the Pope.
  • the penalty was forfeiture of goods and outlawry.
  • After Henry VIII was declared head of the Church by the Pope, it was made a praemunire to attack the king’s prerogative with regard to ecclesiastical matters.

 

  • Beside these there are other offences called misprisions of treason, and are either positive or negative.
  • Positive misprision of treason is the not revealing an attempt against the king’s person, his oldest daughter, or the [61] heir of the kingdom.
  • In like manner it is felony if you do not reveal any notice you receive of conspiracies and rebellions.
  • Negative misprision is the counterfeiting of foreign coin current in the kingdom, such as Portuguese gold, but it is not felony to counterfeit French or Dutch money, because they are not current here.

 

  • In the last place there are offences against the king called contempts, which are fourfold.
  • First, contempt of the king’s court or palaces.
  • A riot committed in any of these is a great indignity offered to the sovereign.
  • Riots in courts of justice are also severely punished, because there persons are often provoked, and if the law were not strict they would disturb the court.
  • Secondly, contempt of the king’s prerogative, such as disobeying the king when lawfully called, going out of the kingdom, when in office, without his leave, refusing to come after a summons under the privy seal, accepting a pension from a foreign prince without the king’s permission, even in a man of letters.
  • Thirdly, contempt of the king’s person and government (of which many are guilty), as by saying he is indolent or cowardly, that he has broken the coronation oath, or to speak disrespectfully of his ministers.
  • These are never regarded at present, because the government is so well established that writing and speaking cannot affect it.
  • Fourthly, contempt of the king’s title, by denying it, or preferring the Pretender’s to it, by drinking the Pretender’s health, or refusing the oath of allegiance and abjuration
  • all these subject to imprisonment [62] or fining, but not to the penalties of treason, felony, praemunire, nor outlawry.

 

  • Having considered the offences of the subject against the sovereign, we shall next treat of the crimes which the sovereign may commit against the subject.
  • But first it is proper to consider who are subjects of a state.
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