« ForrigeFortsett »
that it does not depend for its origin on the human will; all that he contends for is, when once this power is established, it acknowledges no other upon earth superior or equal to it; and consequently, whatever it ordains, in the plenitude of its power, cannot be reversed by any other human will as superior to it. That in every government there should be a supreme power, is a point absolutely necessary, the very nature of the thing requiring it, otherwise it would be impossible for it to subsist.
For, since power cannot be multiplied to infinity, we must of necessity stop at some degree of authority superior to all. Let the form of government be what it may, there must always be a submission to a supreme decision, and it would be a contradiction to say, that there is any power above him who holds the highest rank in the same order of beings.(a)
§ 121. Wooddesson, speaking of the extent of legislative power, regards it as certain, that no human authority can rightfully infringe, or abrogate the smallest particle of natural or divine law. Yet he adds, a British judge of highly deserved estimation, seems in some measure unguarded, in asserting from the bench, that an act of parliament, made against natural equity, as to make a man judge in his own case, is void of itself; for jura natura sunt immutabilia, and they are leges legum. Wooddessun admits that this principle is infallibly true, but the application of it, and the conclusions dangerous ; that we should distinguish between right and power ; between moral fitness and political authority. We cannot expect that all acts of legislators will be, or can be entirely good, ethically perfect, but if their proceedings are to be decided upon by their subjects, government and
(a) Prio. Pol. Law, tit. 2, ch. 7.
subordination ceases. He thinks with Paley, if the magistrate should enjoin any thing by his authority, that appears unlawful to the conscience of a private person, that such private person is to abstain from the action, that he judges unlawful, and to undergo the punishment which it is not unlawful for him to bear. In like manner, when the supreme power decrees any thing injurious to one, or a few only of its subjects, it is their duty according to the principles inculcated in the decalogue of Plato, entitled Crito, to acquiesce, and not to disturb the peace of society, nor attempt to subvert the constitution of their country, or diminish the veneration for its laws, which would be bringing a greater evil upon the whole community.(a)
§ 122. The judicious Hooker insists, with that quaintness of thought which characterizes all his writings, that law politic, ordained for external order and regimen among men, unless they provide so to frame their outward actions that they be no hindrance to the common good for which societies are instituted, they are not perfect. That human laws are measures in respect of men; whose actions they must direct; howbeit, such measures they are, as have also their higher rules to be measured
which rules are two: the law of God, and the law of nature. So that human laws must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are illy made.(b)
§ 123. The opinions of almost all the ancient writers on political sovereignty, based the doctrine of the absolute and sacred character of sovereignty upon the false assumption that princes bear rule by divine right, and not by virtue of the tacit or expressed consent of the
(a) i Wodd. L. 3, p. 41.
governed. Upon this assumption, that God, by his immediate act, conferred the sovereignty upon princes, has originated much of the fallacious reasoning of ethical and political writers, who have construed the permission of Deity that princes should bear rule, into an absolutely delegated authority as the vicegerents of Deity on earth. Grotius and Puffendorf first called in question the doctrine of sovereignty by divine right, and derived it from civil compact; although the latter when speaking of the civil compact, calls it a covenant, which afforded a full and easy title, by which it appeared that sovereignty was not established by violence, but by voluntary consent and subjection of the respective members, from which cause it resulted; still, he did not wholly abandon the doctrine of divINE RIGHT. For he says_“Yet, to secure to the supreme command an especial efficacy, and sacred respect, there is need of another additional principle besides the submission of the subject; and, therefore, he who affirms sovereignty to result immediately from compact, doth not in the least detract from the sacred character of civil government, or maintain that princes bear rule by human right, and not by divine.” Indeed, he argues in favor of this divine right, that the establishment of civil government is necessary for the peace and safety of men; that the law of nature dictated such establishment. That, in pursuance of those laws, which could not otherwise among great multitudes be carried into effect, civil government had been founded. That God, who imposed the law of nature on the human race, thereby commanded the establishment of civil societies, so far as they serve as instruments and means of improving and enforcing these laws.” Grotius too, who was a citizen of the United Provinces of the Netherlands, and who lived in the enjoyment of a republican government, although he considered all governments in their formation as human institutions, he also
on the other hand, maintained the opinion that the divine right of sovereignty, and the sacred character of government, were necessary to give it efficacy.
§ 124. Domat seems not to have questioned the doctrine of sovereignty by divine right, although he builds upon this foundation a very strong argument in favor of the doctrine, that there are of necessity certain limits within which the sovereign power should be exercised. In treating of government he says: “ Although every state hath its peculiar manner of government, and there be in all states, some laws or usages, which distinguish the names, the number, and the power of those who are placed in the highest stations, yet there is this common to them all, that the general order is maintained in them by a supreme and sovereign power, whether it resides in one or many persons, (a) since the rights of sovereigns are derived to them by a consequence of the power which they hold of God, they can have no other rights but such as have in them nothing contrary to the use which God requires them to make of the said powers ; and it is for this reason that he enjoins them to study his law, that they may learn both their power and their duty, of which the spirit of this divine law ought to be the rule.(b) He then defines the nature and objects of the exercise of this sovereignty: “ That this sovereign power or authority is the power of administering the government with the use of the authority and forces in which this power consists, by employing it for the support of justice, and the maintaining the public tranquility in the dominions committed to the sovereign care.” ACcording to this doctrine of Domat, the sovereign is to exercise the sovereign power with respect to the end to
(a) Domat's Pub. Law, b. 1, tit. 1. (6) Ibid. b. 1, sec. 2.
be obtained, and that end is, the protection and preservation of the lives, rights and property of the citizens, and not to be exercised for the destruction of either: that is, the sovereign is to be a minister of God for good, and not for evil. The divine law which high authority pronounces wise, just and good, is to be the rule of his conduct, and prescribes the circle within which human sovereignty must move; that law being the embodiment of all perfection and justice, its spirit, as well as letter, denies the right of man to do an unjust act, or to infringe upon natural rights; sovereignty when exercised within these limits, cannot deserve the names of arbitrary, absolute or despotic, nor can it be justly considered as such.
If sovereigns only claimed to exercise their sovereign power in accordance with the principles of the divine law, instead of by “DIVINE RIGHT," there would be less disposition to controvert the right, and less reason for complaint for the manner in which it is exercised.
§ 125. It has been justly said, that both Puffendorf and Grotius being deeply imbued with the metaphysics of the schools, considered sovereignty as an entity, not a physical but a moral entity, capable of supporting attributes, and of subsisting in any government; but whatever the form of government, it was to be considered a unity.(a) Although the doctrine of sovereignty by divine right, may now be ranked among theories that once were ; although none of the princes of modern Europe would now venture to rest their authority on this ground —and although the doctrine of abstract entities and their unities, has long since fallen to the ground and became obsolete; yet many of the terms which had their origin from these sources, are still in use. These terms have not unfrequently, for want of proper definitions, led to
(@) Chipman, 140.