Chap 15-16: Citizenship, Rights

Chap. 15: Citizenship

  • The laws of different countries vary much with regard to the right of citizenship.
    • In most of the Swiss republics, the right of citizenship only belongs to those born of a citizen.
    • In Rome, a family might be peregrina for four or five generations.
    • At Athens, no man was a citizen unless both father and mother were Athenians.
      • The Athenians were particularly sparing in giving the right of citizenship, because it entitled them to very great privileges.
      • Even kings were denied it.
      • The only favour they wanted to give to a neighbouring king was to free him from import taxes.
        • They did this to Amyntas, father of Philip, king of Macedon.
        • Aliens paid higher duties than natives, so it was no small privilege to have these removed.
        • After the defeat of the Persians, their forces amounted to 25,000 men.
        • Their country was well cultivated.
        • Many cities in Asia paid them tribute.
        • Because of this, the people were entitled to:
          • attend the court of justice
          • have their children educated at the public expense
          • have certain distributions of money among them, with many other emoluments.
        • If the number of citizens increased, these privileges would not be so valuable.
          • Therefore they were very jealous of it.
  • In England, whoever comes into a parish must promise not to be burdensome to it.
    • In all little [63] republics, citizenship is very important because:
      • there are a few freemen
      • few can participate in elections
    • But in a large city such as Rome, it was a very small compliment.
      • Accordingly, they made whole provinces citizens at once.
  • In Britain, one born within the kingdom is under the protection of the laws.
    • He can:
      • buy lands, and
      • can be elected to any office if he is of the established religion.
  • In great states, the place of birth makes a citizen.
    • In small ones, the basis is the citizenship of the parents.
  • Similarly, the incapacity of being a citizen is different in different countries.
    • By the old laws of Rome and of barbarous nations, the goods of anyone who came within their territories were confiscated.
      • That person 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 only have 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.
    • The crew were made slaves because we had no league with him, .
    • Our sovereign even complied with [64] the custom of the place as to ransom them.
  • When they found the advantage of exporting their own goods, and importing those of others, they would naturally allow those transported them to be safe.
    • They would allow him an action if injured in either.
  • This is the state of aliens in most European countries at present.
    • In Britain, an alien cannot:
      • buy nor inherit land property, nor
      • maintain a real action.
    • He cannot make a will because:
      • it is the greatest extension of property, and
      • it is founded on piety and affection to the dead.
        • An alien does not deserve such piety and affection.
    • By a particular statute, an alien merchant, but not a tradesman, may have a lease of a house.
      • This arises from a whimsical principle that it would discourage our own tradesmen to allow foreigners to settle among them.
      • 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.
  • An alien is allowed to buy lands and to transmit them to posterity if subjects of Great Britain.
    • But he cannot inherit, because [65] 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.
    • Many Dutch families came over with him, so it was natural to suppose that he would favour them with every privilege.
    • The English were offended at this partiality.
      • They made an act declaring that there should be no future act of parliament that would give them such emoluments1.
      • 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.
  • Aliens are not allowed to make a will in England and Germany.
  • In Saxony, a very equitable law allowed no privileges to aliens if there was none given to their own citizens. [66]
  • In Rome, it was the right of citizens only to make a will.
  • Aliens are either aliens amis or aliens ennemie.
  • If aliens ennemie wage war on 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 amis are aliens who live in the country are protected by the laws.
    • Since they owe allegiance to the king, they may be prosecuted for treason.
    • Whatever makes a freeborn subject guilty of treason makes an alien ami guilty of it.
  • An alien ennemie is also guilty of treason if he comes from a country at war with us and gives information to his own sovereign.

Chap 16: the Rights of Subjects

  • We have discussed who are the proper subjects of a state.
    • Next, we discuss the sovereign’s crimes against the subject, or the limitations of his 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.
      • To suppose a sovereign subject to judgement, supposes another sovereign.
  • In England it can be exactly ascertained [67] 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 determine.
  • All decisions on this subject have been made by the prevailing party, and never coolly by a court of justice.
    • It 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 government are exercised precariously.
    • The majority may make war, but cannot force the minority to it.
    • 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 interposed as mediators.
    • Sometimes, the panel had his choice 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 [68] people, a judge is the most terrible sight in the world.
    • When property was extended, it therefore became necessary to restrain their arbitrary decisions by appointing strict rules for them to follow.
    • Thus the legislative power was introduced as a restraint on the judicial.
  • In Britain, the king has the absolute executive and judicial power.
    • However, the Commons may impeach his ministers.
    • The judges, whom he appoints, are independent of him afterwards.
  • The legislative power is absolute in the king and parliament.
  • There are, however, certain abuses which makes resistance lawful, on whatever principle government is founded.

 

  • Suppose that government is founded on contract, and that these powers are entrusted to persons who grossly abuse them.
    • 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
      • 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 great 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.
  • Imprudent conduct will take away all sense of authority.
  • The folly and cruelty [69] of the Roman emperors make the impartial reader go along with the conspiracies against them.
  • 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 many men.
    • 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.
  • Resistance is in some cases lawful.
  • But it is excessively difficult to say what an absolute sovereign may do or may not do.
  • There are different opinions about it.
  • 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 nothing to that of the people.
  • Exorbitant taxes justify resistance, for no people will allow the 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.
    • 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.
  • However, this doctrine is groundless.
  • In France and Spain, most of [70] the dominions have been given to the king’s children without any complaint.
    • When Florida was put into our 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.
    • It prevents daughters from succeeding to the crown.
    • This law was owing to 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.

 

  • It is hard to determine what a monarch may or may not do.
    • 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, 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 kind on imports.
  • The petition of right expressly appointed that the taxes shall not continue after the time determined by act of parliament.

 

  • James II was a Roman Catholic.
    • When the parliament saw the crown going to him, they appointed:
      • two tests:
        • an abjuration of the Pope
        • the oath of supremacy
      • 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 [71] 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 sent to the Tower.
    • Every British subject has a right to do so.
    • This attack on the bishops alarmed the nation.
  • Bishop John Sharp preached against popery, the religion of the king.
    • The bishop of London was ordered to suspend him, but he only cautioned him against such practices.
    • The king was not pleased with this.
      • He created a court of high commission and summoned both the bishop and Sharp to appear before it.
      • He perceived the people’s disgust.
      • He thought it came from:
        • the fear of those possessed of abbey lands, lest they should be taken from them,
        • a fear of a change in the country’s religion.
      • He 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 [72]:
    • the Revolution was brought about, and
    • the family set aside, because 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.
      • 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:
    • suspected to be a Papist
    • educated in that religion.
  • 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.
  • Ecclesiastics and laymen are two grand divisions of men in a state.
    • 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.