Chap 15-16: Citizenship, Rights

Chap. 15: Citizenship

  • The laws of different countries vary much with regard to those to whom the right of citizenship belongs.
  • In most of the Swiss republics, nothing gives the right of citizenship, but to be 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.
  • It is to be observed that the Athenians were particularly sparing in giving the right of citizenship, because it entitled them to very great privileges.
  • Even kings were denied that honour;
  • all they did when they wanted to bestow a favour on a neighbouring king was to free him from taxes on imports.
  • This they did to Amyntas, father of Philip, king of Macedon.
  • As aliens paid higher duties than natives, 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.
  • In consequence of this the people were entitled to attendance on the court of justice, to have their children educated at the public expense, to have certain distributions of money among them, with many other emoluments.
  • If the number of citizens increased, these privileges would not be so valuable, and therefore they were very jealous of it.
  • As whoever comes into a parish in England must give a bond not to be burdensome to it, so [in] all little [63] republics where the number of freemen are small and election in the hands of a few, citizenship is of great importance, 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 states, 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 [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 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 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.
  • By the former an alien is capacitated to purchase 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.
  • 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 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.
  • Neither in England nor in Germany are aliens allowed to make a will.
  • In Saxony there was made a very equitable law that aliens from countries where they were allowed no privileges, should be allowed [66] none among them.
  • 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 ennemie.
  • 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.

 

 

Chap 16: 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 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 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 government 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 interposed 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 court.
  • 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 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 ministers, 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 government 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 allegiance, 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 [69] 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 lawful, 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 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.
  • This doctrine is, however, groundless.
  • In France and Spain great part of [70] 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 Moscow can even alter the succession as they please.
  • This was in general the case in all feudal jurisdictions, they were divisible 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 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 sort upon importation.
  • In the petition of right 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 [71] privy council, and besides, appointed persons entirely unqualified to the treasury, and broke in upon the privileges of the Universities.
  • He also assumed a power of dispensing 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 occasion.
  • It was no wonder that by such practices [72] 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 Protestant 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 encroachments 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.