Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter IX: In What Cases Jurisdiction and Property Cease
Jurisdiction1 and property cease, when the family of the owner has become extinctIn what manner the rights of a people may become extinctA people becomes extinct when its essential parts are destroyedA people does not become extinct by emigrationThe existence of separate states not destroyed by a federal union.
I. and II. AFTER the preceding inquiries into the manner in which private property as well as sovereign power may be acquired and transferred, the manner, in which they cease, naturally comes next under consideration. It has been shewn before that the right to property may be lost by neglect; for property can continue no longer than while the will of ownership continues. There is also another manner in which property may cease to exist, without any express or implied alienation: and that is where the family either of a sovereign, or an owner, becomes extinct, a contingency for which provision must be made somewhat similar to a succession to the property of one who dies intestate. Wherefore if any one die, without any declaration of his will, and have no relations by blood, all the right, which he had, becomes extinct, and reverts, if a sovereign, to the hands of the nation, except where express provisions of law have been made to the contrary.
III. The same mode of reasoning applies to a nation. Isocrates, and after him the Emperor Julian, has said that states are immortal, or may be so. For a people is one of that kind of bodies which are formed of distinct parts, following each other in regular succession, and supplying the place of the deceased. This body goes under one name, forming, as Plutarch says, one constitution; or, in the language of Paulus the Lawyer, one spirit. Now the spirit or constitution in a people is the full and perfect harmony of civil life, from which emanates the sovereign power, the very soul of all government, and, as Seneca says, the vital breath which so many thousands draw.
These artificial bodies bear a close resemblance to the natural body, which, notwithstanding the alteration of its component particles, loses not its identity, so long as the general form remains. And therefore in the passage of Seneca, where he says, that no one is the same in his old age that he was in his youth, he means only as to natural substance. In the same manner Heraclitus, as cited by Plato in Cratylus, and Seneca in the place already quoted, has said, that we cannot descend TWICE into the same river. But Seneca afterwards corrects himself, adding, that the river retains its name, though the watery particles of which it is composed are perpetually changing. So Aristotle, too, in comparing nations to rivers, has said that the rivers are always called by the same name, though their several parts are fluctuating every moment. Nor is it the name alone which continues, but that principle also which Conon calls the constitutional system of the body, and Philo the spirit, that holds it together. So that a people, as Alphenus and Plutarch, in speaking of the late, but unerring approach of divine vengeance, maintain, though not one of its members of a former period be now living, is the same at present that it was a hundred years ago, as long as the spirit, which first framed and afterwards kept the body together, preserves its identity.
Hence has originated the custom, in addressing a people, of ascribing to them, who are now living, what happened to the same people many ages before; as may be seen both in profane historians, and in the books of holy writ. So in Tacitus, Antony the First serving under Vespasian, reminds the soldiers of the third legion of what they had done in former times, how under Mark Antony they had beaten the Parthians, and under Corbulo the Armenians. There was more of prejudice, therefore, than truth in the reproach, which Piso cast upon the Athenians of his own time, refusing to consider them as Athenians since they had become extinct by so many disasters, and were nothing more than a base mixture of all nations of the earth. We say there was more of prejudice than truth in this reproach. For though such a mixture might diminish the dignity, it could not destroy the existence of a people. Nor was he himself ignorant of this. For he reproaches the Athenians of his own day with their feeble efforts in former times against Philip of Macedon, and their ingratitude to their best friends. Now as a change of its component parts cannot destroy the identity of a people, not even for a thousand years or more; so neither can it be denied that a people may lose its existence in two ways; either by the extinction of all its members, or by the extinction of its form and spirit.
IV. A body is said to die, when its essential parts, and necessary form of subsistence are destroyed. To the former case may be referred the instance of nations swallowed up by the sea, as Plato relates, and others whom Tertullian mentions: or if a people should be destroyed by an earthquake, of which there are many instances in history, or should destroy themselves, as the Sidonians and Saguntines did. We are informed by Pliny, that in ancient Latium, fifty-three nations were destroyed without a single trace of them remaining.
But what, it may be said will be the case, if out of such a nation so few remain that they cannot form a people? They will then retain that property, which they had before as private persons, but not in a public capacity. The same is the case with every community.
V. A people loses its form, by losing all or some of those rights, which it had in common; and this happens, either when every individual is reduced to slavery, as the Mycenaeans, who were sold by the Argives; the Olynthians by Philip, the Thebans by Alexander, and the Brutians, made public slaves by the Romans: Or when, though they retain their personal liberty, they are deprived of the rights of sovereignty. Thus Livy informs us respecting Capua, that the Romans determined, though it might be inhabited as a city, that there should be no municipal body, no senate, no public council, no magistrates, but that deprived of political deliberation, and sovereign authority, the inhabitants should be considered as a multitude; subject to the jurisdiction of a Praefect sent from Rome. Therefore Cicero, in his first speech against Rullus, says that there was no image of a republic left at Capua. The same may be said of nations reduced to the form of Provinces, and of those subjugated by another power; as Byzantium was to Perinthus, by the Emperor Severus, and Antioch to Laodicea, by Theodosius.
VI. But if a nation should emigrate, either spontaneously, on account of scarcity or any other calamity, or if by compulsion, which was the case with the people of Carthage in the third Punic war, while she retains her form, she does not cease to be a people; and still less so, if only the walls of her cities be destroyed, and therefore when the Lacedaemonians refused to admit the Messenians to swear to the peace of Greece, because the walls of their city were destroyed, it was carried against them in the General Assembly of the Allies.
Nor does it make any difference in the argument, whatever the form of government may be, whether regal, aristocratical, or democratical. The Roman people for instance was the same, whether under kings, consuls, or emperors. Even indeed under the most absolute form, the people is the same that it was in its independent state, while the king governs it as head of that people, and not of any other. For the sovereignty which resides in the king as the head, resides in the people likewise as the body of which he is the head; and therefore in an elective government, if the king or the royal family should become extinct, the rights of sovereignty, as it has been already shewn, would revert to the people.
Nor is this argument overthrown by the objection drawn from Aristotle, who says that, if the form of government is changed, the state no longer continues to be the same, as the harmony of a piece of music is entirely changed by a transition from the Doric to the Phrygian measure.
Now it is to be observed, that an artificial system may possess many different forms, as in an army under one supreme commander there are many subordinate parts, and inferior powers, while in the operations of the field it appears but as one body. In the same manner, the union of the legislative and executive powers in a state gives it the appearance of one form, while the distinction between subject and sovereign, and their still mutual relation give it another. The executive power is the politicians concern; the judicial, the lawyers. Nor did this escape the notice of Aristotle. For he says it belongs to a science different from that of politics to determine whether, under a change in the form of government, the debts contracted under the old system ought to be discharged by the members of the new. He does this, to avoid the fault which he blames in many other writers, of making digressions from one subject to another.
It is evident that a state, which from a commonwealth has become a regal government, is answerable for the debts incurred before that change. For it is the same people, possessing all the same rights, and powers, which are now exercised in a different manner, being no longer vested in the body, but in the head. This furnishes a ready answer to a question some times asked, which is, what place in general assemblies of different states, ought to be assigned to a sovereign, to whom the people of a commonwealth have transferred all their power? Undoubtedly the same place which that people or their representatives had occupied before in such councils. Thus in the Amphictyonic council, Philip of Macedon succeeded to the place of the Phocensians. So, on the other hand, the people of a commonwealth occupy the place assigned to sovereigns.
VIII.2 Whenever two nations become united, their rights, as distinct states, will not be lost, but will be communicated to each other. Thus the rights of the Albans in the first place, and afterwards those of the Sabines, as we are informed by Livy, were transferred to the Romans, and they became one government. The same reasoning holds good respecting states, which are joined, not by a federal UNION, but by having one sovereign for their head.
IX. On the other hand, it may happen that a nation, originally forming but one state, may be divided, either by mutual consent, or by the fate or war; as the body of the Persian Empire was divided among the successors of Alexander. When this is the case, many sovereign powers arise in the place of one, each enjoying its independent rights, whatever belonged to the original state, in common, must either continue to be governed as a common concern, or be divided in equitable proportions.
To this head may be referred the voluntary separation, which takes place when a nation sends out colonies. For thus a new people as it were is formed, enjoying their own rights; and as Thucydides says, sent out not upon terms of slavery, but equality, yet still owing respect and obedience to their mother-country. The same writer, speaking of the second colony sent by the Corinthians to Epidamnus, says, they gave public notice that such as were willing to go should enjoy equal privileges with those that staid at home.
Note 1. The translation proceeds from the fourth to the ninth Chapter of the Second book of the original. The intermediate chapters, being chiefly a repetition of the authors former arguments, respecting the rights of seas and rivers, and other kinds of dominions; and that relating to the rights of persons, being so fully treated in the first volume of Judge Blackstones Commentaries, it seemed unnecessary to give them in the present work.TRANSLATOR. [back]
Note 2. Section VII of the original is omitted in the translation.TRANSLATOR. [back]