Authority of

heads of families.

persons under one head, as a commonwealth is that of many families.* Patriarchal authorityhe raises high, both marital and paternal, on each subject pouring out a vast stream of knowledge: nothing that sacred and profane history, the accounts of travellers, or the Roman lawyers could supply, ever escapes the comprehensive researches of Bodin. † He intimates his opinion in favour of the right of repudiation, one of the many proofs that he paid more regard to the Jewish than the Christian law ‡, and vindicates the full extent of the paternal power in the Roman republic, deducing the decline of the empire from its

relaxation.

servitude.

47. The patriarchal government includes the relation of Domestic master to servant, and leads to the question whether slavery should be admitted into a well-constituted commonwealth. Bodin, discussing this with many arguments on both sides, seems to think that the Jewish law, with its limitations as to time of servitude, ought to prevail, since the divine rules were not laid down for the boundaries of Palestine, but being so wise, so salutary, and of such authority, ought to be preferred above the constitutions of men. Slavery, therefore, is not to be permanently established; but

*Familia est plurium sub unius ac ejusdem patris familias imperium subditorum, earumque rerum quæ ipsius propria sunt, recta moderatio. He has an odd theory, that a family must consist of five persons; in which he seems to have been influenced by some notions of the jurists, that three families may constitute a republic, and that fifteen persons are also the minimum of a community.

Cap. iii. 34. Bodin here protests against the stipulation sometimes made before marriage, that the wife shall not be in the power of the husband; "agreements so contrary to divine and human laws, that they cannot be endured, nor are they to be observed even when ratified by oath, since no oath in such circumstances can be binding."

It has often been surmised that Bodin, though not a Jew by nativity, was such by conviction. This seems to be confirmed by his Republic, wherein he quotes the Old Testament continually, and with great deference, but sel

dom or never the New. Several passages might be alleged in proof, but I have not noted them all down. In one place, lib. i. c. 6., he says, Paulus, Christianorum sæculi sui facile princeps, which is at least a singular mode of expression. In another he states the test of true religion so as to exclude all but the Mosaic. An unpublished work of Bodin, called the Heptaplomeres, is said to exist in many manuscripts, both in France and Germany; in which, after debating different religions in a series of dialogues, he gives the advantage to Deism or Judaism, for those who have seen it seem not to have determined which. No one has thought it worth while to print this production. Jugler, Hist. Literaria, p. 1740. Biogr, Univ. Niceron, xvii,

264.

A poshumous work of Bodin, published in 1596, Universæ Naturæ Theatrum, has been called by some a disguised Pantheism. This did not appear, from what I have read of it, to be the case.

where it already exists, it will be expedient that emancipations should be gradual. *

Origin of

wealths.

48. These last are the rights of persons in a state of nature, to be regulated, but not created by the law. "Before there was either city or citizen, or any commonform of a commonwealth amongst men (I make use in this place of Knolles's very good translation), every master of a family was master in his own house, having power of life and death over his wife and children; but, after that force, violence, ambition, covetousness, and desire of revenge had armed one against another, the issues of wars and combats giving victory unto the one side, made the other to become unto them slaves; and amongst them that overcame he that was chosen chief and captain, under whose conduct and leading they had obtained the victory, kept them also in his power and command as his faithful and obedient servants, and the other as his slaves. Then that full and entire liberty, by nature given to every man to live as himself best pleased, was altogether taken from the vanquished, and in the vanquishers themselves in some measure also diminished in regard of the conqueror; for that now it concerned every man in private to yield his obedience unto his chief sovereign; and he that would not abate any thing of his liberty, to live under the laws and commandments of another, lost all. So the words of lord and servant, of prince and subject, before unknown to the world, were first brought into use. Yea reason, and the very light of nature, leadeth us to believe very force and violence to have given cause and beginning unto commonwealths."+

Privileges of citizens.

A

49. Thus, therefore, the patriarchal simplicity of government was overthrown by conquest, of which Nimrod seems to have been the earliest instance; and now fathers of families, once sovereign, are become citizens. citizen is a free man under the supreme government of another. Those who enjoy more privileges than others are not citizens more than they. "It is the acknowledgment of the sovereign by his free subject, and the protection of the sove

* c. 5.

† c. 6.

homo, qui summa alterius potestate Est civis nihil aliud quam liber obligatur.

reign towards him that makes the citizen." This is one of the fundamental principles, it may be observed by us in passing, which distinguish a monarchical from a republican spirit in constitutional jurisprudence. Wherever mere subjection, or even mere nativity, are held to give a claim to citizenship, there is an abandonment of the republican principle. This, always reposing on a real or imaginary contract, distinguishes the nation, the successors of the first community, from alien settlers, and, above all, from those who are evidently of a different race. Length of time must, of course, ingraft many of foreign origin upon the native tree; but to throw open civil privileges at random to new-comers is to convert a people into a casual aggregation of men. In a monarchy the hereditary principle maintains an unity of the commonwealth; which may better permit, though not entirely without danger, an equality of privileges among all its subjects. Thus under Caracalla, but in a period in which we should not look for good precedents, the great name, as once it had been, of Roman citizen was extended, east and west, to all the provinces of the empire.

Nature of

power.

50. Bodin comes next to the relation between patron and client, and to those alliances among states which sovereign bear an analogy to it. But he is careful to distinguish patronage or protection from vassalage. Even in unequal alliances, the inferior is still sovereign; and, if this be not reserved, the alliance must become subjection.* Sovereignty, of which he treats in the following chapter, he defines a supreme and perpetual power, absolute and subject to no law. A limited prince, except so far as the limitation is confined to the laws of nature, is not sovereign. A sovereign cannot bind his successor, nor can he be bound by his own laws, unless confirmed by oath; for we must not confound the laws and contracts of princes- the former depend upon his will, but the latter oblige his conscience. It is convenient to call parliaments or meetings of states-general for advice and consent, but the king is not bound by them; the contrary notion has done much harm. Even in England, where laws made in parliament cannot be repealed without

c. 7.

† Majestas est summa in cives ac subditos legibusque soluta potestas.

its consent, the king may reject any new one without regard to the desire of the nation. * And though no taxes are imposed in England without consent of parliament, this is the case also in other countries, if necessity does not prevent the meeting of the states. He concludes, that the English parliament may have a certain authority, but that the sovereignty and legislative power is solely in the king. Whoever legislates is sovereign, for this power includes all other. Whether a vassal or tributary prince is to be called sovereign, is a question that leads Bodin into a great quantity of feudal law and history; he determines it according to his own theory. †

51. The second book of the Republic treats of the different species of civil government. These, according to Forms of Bodin, are but three, no mixed form being possible, government. since sovereignty or the legislative power is indivisible. A democracy he defines to be a government where the majority of the citizens possess the sovereignty. Rome he holds to have been a democratic republic, in which, however, he is not exactly right; and he is certainly mistaken in his general theory, by arguing as if the separate definition of each of the three forms must be applicable after their combination. ‡ In his chapter on despotic monarchy, he again de- Despotism nies that governments were founded on original con- and motract. The power of one man, in the origin of political society, was absolute; and Aristotle was wrong in supposing a fabulous golden age, in which kings were chosen by suffrage. § Despotism is distinguished from monarchy by the subjects being truly slaves, without a right over their properties; but as the despot may use them well, even this is not necessarily a tyranny. Monarchy, on the other hand, is the rule of one man according to the law of nature, who

narchy.

* Hoc tamen singulare videri possit, societas hominum coalescere cœpit, ac quod, quæ leges populi rogatione ac reipublicæ forma quædam constitui, principis jussu feruntur, non aliter quam unius imperio ac dominatu omnia tenepopuli comitiis abrogari possunt. Id bantur. Fallit enim Aristoteles, qui enim Dellus Anglorum in Gallia legatus aureum illud genus hominum fabulis mihi confirmavit; idem tamen confitetur poeticis quam reipsa illustrius, reges legem probari aut respui consuevisse heroas suffragio creasse prodidit; cum contra populi voluntatem utcunque prin- omnibus persuasum sit ac perspicuum cipi placuerit. monarchiam omnium primam in Assyria fuisse constitutam Nimrodo principe, &c. || c. 2.

tc. 9. and 10. lib. ii. c. 1.

In the beginning of states, quo

maintains the liberties and properties of others as much as his own. As this definition does not imply any other restraint than the will of the prince imposes on himself, Bodin labours under the same difficulty as Montesquieu. Every English reader of the Esprit des Loix has been struck by the want of a precise distinction between despotism and monarchy. Tyranny differs, Bodin says, from despotism, merely by the personal character of the prince; but severity towards a seditious populace is not tyranny; and here he censures the lax government of Henry II. Tyrannicide he justifies in respect of an usurper who has no title except force, but not as to lawful princes, or such as have become so by prescription.t

52. An aristocracy he conceives always to exist where a smaller body of the citizens governs the greater.‡ Aristocracy. This definition, which has been adopted by some late writers, appears to lead to consequences hardly compatible with the common use of language. The electors of the House of Commons in England are not a majority of the people. Are they, therefore, an aristocratical body? The same is still more strongly the case in France, and in most representative governments of Europe. We might better say, that the distinguishing characteristic of an aristocracy is the enjoyment of privileges, which are not communicable to other citizens simply by any thing they can themselves do to obtain them. Thus no government would be properly aristocratical where a pecuniary qualification is alone sufficient to confer political power; nor did the ancients ever use the word in such a sense.

Senates and councils of

state.

53. Sovereignty resides in the supreme legislative authority; but this requires the aid of other inferior and delegated ministers, to the consideration of which the third book of Bodin is directed. A senate he defines, "a lawful assembly of counsellors of state, to give advice to them who have the sovereignty in every commonwealth; we say, to give advice, that we may not ascribe any power of command to such a senate." A council is necessary

c. 3.

c. 4.

esse judico, si minor pars civium cæteris Ego statum semper aristocraticum imperat. c. 1.