§ 1. The theologians and jurists appear to me here not so much to hold different opinions as to employ different words. For the matter concerning a king, as it seems to me, can least of all be doubtful; for this reason I shall dispose of it in a few statements.
- Every prince, and indeed the state, is bound in conscience by divine and natural laws no less than the subjects are. Indeed, by acting contrary to them, because the crime is more conspicuous and does the greatest harm by example, he sins more gravely than a subject. Plutarch speaks rightly about that law in On Kingship: οὐκ ἐν βιβλίοις ἔξω γεγραμμένος, οὐδέ τισι ξύλοις, ἀλλ’ ἔμψυχος ὢν ἐν αὐτῷ λόγος, ἀεὶ συνοικῶν καὶ παραφυλάττων καὶ μηδέποτε τὴν ψυχὴν ἐῶν ἔρημον ἡγεμονίας. One must live by that law which is not written externally in books or upon tablets, but which is reason implanted in the soul, always dwelling with him and guarding him, and never leaving the soul without its own guardianship and care.
§ 2. Since in law there is a directive and a coercive power, the prince is bound neither to natural nor to civil law by coercive power. The reason is at hand: because that power comes from outside and acts against one unwilling; but none of the subjects can coerce the prince, because he possesses no legitimate authority over the prince. Nor is the prince said to coerce himself, but he does voluntarily what he does by his own choice. Still less can an external prince do this, because an equal has no power over an equal.
It is therefore pleasing that there be someone in the state who observes the laws from no fear of punishment—without fear of human punishment, that is, not without fear of divine punishment. For whatever the subjects fear in the prince, the prince expects from God.
§ 3. By violating divine laws, the prince incurs punishment and is rendered liable to eternal punishment; nevertheless, he is not punished with temporal punishment according to the laws. The precept of divine law is: “Whoever shall shed blood, his blood shall be shed”; and Deuteronomy 22:22, that both should die, the adulterer and the adulteress. King David committed both a crime and a shameful deed—the adulterer of the wife and the slayer of the husband—and owed punishment to God; yet he did not pay it according to the law, not because he was not guilty, but because an executor was lacking. For he was not obliged to accuse himself or hand himself over for punishment, but to await divine judgment, which he did.
For since he had no superior by whom he might legitimately be punished, and accordingly was compelled to obey no one in undergoing the punishment, he was not bound to that punishment except by a special command.
For the law was given to the magistrate so that, by ordinary power and after the case had been heard, he might kill the murderer and adulterer—not so that the murderer and adulterer himself should voluntarily present himself for judgment or inflict death upon himself. Kings therefore enjoy the same liberty, and by it they cannot be punished by a human being.
§ 4. The prince is bound to undergo certain penalties of divine law which bind others also in common, and which are of such a kind as neither to be unseemly for a prince nor to require the force of another, and which are laws rather than penalties, although they contain a penalty. For in the Old Testament both kings and the people were bound to offer the appointed victims for their sin, since in these matters each person was the executor of his own penalty. I do not dispute whether this was properly the act of unwilling persons, or whether they were properly penalties.
And certainly it is not expedient that persons be established in the state to punish the crimes of kings; for from this arise hatreds and wars. For if a king knows that he has transgressed, he will strive with all his power to escape punishment, and more evil will arise from fear of the punishment than from the offense. It is easy for him to be just whose breast is free from fear; if he has deserved punishment, by the death of those whom he fears he will procure security for himself.
§ 5. I judge that the prince is sometimes bound by the penalties of civil laws and sometimes free from them. He is bound by a penalty when the offense tends toward the harm of another, or when a tacit agreement has been interposed.
And indeed there is no doubt concerning an agreement, for this is a principal virtue of a prince: to stand by agreements and covenants. But when a penalty or satisfaction is expressed in agreements, it must be undergone by a prince no less than by a private person.
For that matter passes into a debt. For example: by common law, donations between spouses are prohibited—those, namely, by which the recipient is made richer. The prince is bound by that law, and if he neglects to restore the gift, he is compelled in conscience, because the rationale of the law has much greater force in the prince; for he can both wheedle it from her, and, if the things requested are refused by his wife, a greater evil is to be feared. Thus the laws, π., title On Doubtful Matters, law If between Husband and Wife. The cause is that they should not despoil one another through mutual love, failing to restrain themselves in donations but abusing their lavish liberality toward one another. And for this reason the law has barred the slippery roads to poverty. Here too the prince will be bound to make restitution, so that he may fulfill the law. And he is bound to this by natural right and by the common law according to which he is held to marry a wife. For what honorable man would give his daughter to a prince if the prince did not marry her according to the common law?
Next, whatever is conceded by way of agreement must be given, and a penalty, when it is to the prejudice of a third party, must be paid. An example is this: in
a forest common to the prince and the nobility, let no one hunt except in autumn; if he does so, let him lack the right of hunting for two years. The prince hunts before the appointed time, catches nothing, and does not frighten the beasts away; consequently no harm was done. Nevertheless, because the law is common by agreement, he shall abstain from hunting for two years.
Next, when omission of the penalty tends toward the loss of others, he is compelled to discharge the penalty. For then natural reason, which forbids one to be troublesome to and harm others by violating the law, compels him to give satisfaction. For if it is the tutor’s duty to appoint a judge, final law On an Arbitrator in a Guardianship, chapter And Whoever Neglects This, that person is infamous and the testator cannot remit it; if the prince undertakes a guardianship, he too must make an inventory, and if harm follows from its not having been made, he will be obliged to compensate the ward.
Next, sureties, guarantors, and nominators of tutors are bound for the giving of security, and sometimes also the magistrates who do not admit suitable tutors. In these matters, therefore, the prince is bound by natural right. For if he has compelled the tutors to give security that the ward’s property will be safe, he has exempted himself from every penalty; if he has not observed the law, through which the ward suffered loss, let him impute it to himself.
If there is no loss to a third party, the prince will not be bound by the penalty of the law. German drinking challenges were prohibited at Augsburg in the years 1500, 1530, and 1548; at Cologne in 1512; and at Frankfurt in 1577. Let us suppose that a penalty was imposed whereby anyone who proposed a drink, or made another person or himself drunk, should offer a sextarius of wine to the poorhouse. The prince proposed a drink without drunkenness in himself or another; he is not bound by the penalty, although he contracted guilt.
For no injury is inflicted upon a third party such that he is thereby compelled to pay the penalty, nor can a judge compel him. No one is bound except by his own judge, chapter But If Clerics, On Judgments. Or, in his own case, he is not bound to be a judge against himself. Nevertheless, he sins more gravely and is left to be punished by God. Nor will he defraud that creditor: punishments will creep upon him in a slow column, and cares and sorrows wandering about his ensnared roof will make him wretched.
§ 6. The prince is civilly bound by his own law, and therefore he must stand by contracts whose validity arises from civil law alone. Accordingly, a subject can also prescribe against him, and he is bound to surrender the thing to that subject. A civil obligation, however, is not necessarily coercive.
Nor, nevertheless, is directive force without coercive force empty, nor is the state greatly burdened. First, because it gravely binds the conscience. Next, because there is no reason why the prince should wish to deceive in small matters. For where the leading men or the people hold the helm of the state, individuals can be coerced. Finally, the loss in one man’s liberty is not great. Let the state see that it elects such a person as one to whom, although very much is lawful, very little is pleasing.
§ 7. Finally, a civil law, whether the prince’s own or his predecessors’, for as long as it remains—for he can abrogate it for a just cause—truly binds the prince in conscience, provided that the matter commanded is common to the prince and the people; for some laws are written for the common people alone, others for the nobility. For example, if just prices of things are established, or weights and measures, the prince’s treasury cannot sell those things more dearly or institute a lighter weight. The same rationale applies to coinage: since its value has been assessed by the prince’s law, he cannot alter the coin so as to diminish or increase its value. Let this, therefore, remain firm and fixed: “Obey the law, whoever you are who have sanctioned the law.”
This obligation arises from the force and nature of law. For the legal authorities teach that the prince is bound by law; therefore he is bound by the force and rationale of law, not merely from some other source. Thus distinction 9, chapter 2: “It is just for the prince to obey his own laws. For then let him think that his laws must be guarded by everyone, when he too offers reverence to them. It is fitting that princes be bound by their own laws, nor that the laws which they establish for their subjects can be condemned in their own case. For the authority of their pronouncement is just if they do not allow themselves to do what they prohibit to the peoples.”
If this is just, and consequently the contrary unjust, it is just from no other source than law; for law constitutes the mean of justice, both in the king and in the people. So also in chapter It Is Not Permitted to the Pope, question 17.1, and in civil law, Code On Laws and Constitutions of Princes, law 1, title 14: “It is an utterance worthy of the majesty of one who reigns for the prince to profess himself bound by the laws. To such a degree does our authority depend upon the authority of law; and in truth it is greater than sovereign power to submit the principate to the laws; and by the oracle of the present edict we indicate that what we do not permit ourselves is unlawful.” Given at Ravenna, on the third day before the Ides of June, in the consulship of Florentinus and Dionysius, 429.
And law 3.1, On Testaments: “It is proper to the emperor to live by the laws.” And Cato most excellently: “Submit to the law which you yourself have carried.” And law 23, π., On Legacies: “Whatever rule of law each person has established against another, let him himself use the same,” On the Praetor’s Edict. “It is just for the prince to obey his own laws.” Pliny speaks truly in the Panegyric: “The prince is not above the laws, but the laws above the prince.” And Ambrose, Letter 32 to Valentinian: “What you have prescribed for others, you have prescribed also for yourself; for the emperor carries laws which he himself should be the first to guard.” With the emperor justice avails more than license, as Symmachus wisely says. Indeed, this too is true: the prince is not exempt from the laws, but appears to be. Accordingly, when he is said to be ἐπάνω τῶν νόμων, “above the laws,” this must be understood of penalties alone. Ἁμαρτίαις γὰρ οὐ κολάζεται—for he is not punished for sins.
He is worthy of great punishment if he subjects not only his dignity but also the instruments of virtues to vices; but this must be tolerated, because it cannot be avenged except by God. For the manifold offenses of others also are tolerated when they elude the severity of the laws.
§ 8. The state also binds the prince by the laws; for in truth, when he promulgates a law common to the whole state, he at the same time includes himself and by public will subjects himself to it. For the prince’s authority depends upon right, and therefore whatever he has established is presumed to have been moved by a just cause. For that analogy and conformity is understood whereby the head is not unlike the rest of the body. How discordant would it be for a fast to have been proclaimed throughout the whole city and temperance to be observed, but for the prince alone to live festively in the court?
Since, therefore, the state cannot for a legitimate reason exempt the prince in laws common to every part and to the head, he will necessarily also be bound by his own law; for it is contrary to right reason, and therefore to natural law, which is right reason, for the head of the state not to agree with the body. For why should they bind heavy works upon the subjects, while they themselves are unwilling to move them with a finger?
Hence we also understand that ecclesiastical laws are not to be imposed upon others unless the legislators themselves wish to be bound by them.
§ 9. But because the observance of a law that has been carried pertains to natural right, Suárez rightly teaches in book 3, chapter 35 of On Laws that it is commanded by God. I answer, therefore, that God, who is the principal author of this power, confers it under the aforesaid condition and not otherwise, and that this very thing is gathered from natural reason itself without any other revelation or human agreement. It is explained in this way: every legislative power is principally from God, either immediately, as in ecclesiastical power, or through the mediation of the state, as in civil power. Hence, although a human being immediately carries a law, in that act he conducts himself as a minister and steward of God, as we have adduced above from Paul. Therefore the intention and will of the prince carrying the law must be conformed to the intention of God giving the power; indeed, the efficacy of the law for binding depends more upon the intention of God than upon that of the particular legislator. But God, not only as the author of grace but also as the author of nature, wills that a human legislator should not possess the power to carry laws except with their universal obligation, which comprehends the whole state as consisting of body and head. Therefore—
The minor premise is proved from the very necessity of the common good, to which this power is ordained; for it is given for edification, not for destruction. That it pertains to such a common good that this power be given to the prince in such a manner that, although it lies within his will to carry a law, nevertheless, if it is carried, it is universal and comprehends him, is sufficiently declared by the testimonies of Scripture and the reasons adduced, and by the common consensus not only of the Fathers but also of the philosophers. For this reason Aristotle said most excellently near the end of Politics 3.7 that law ought to rule in the state. For, as Saint Thomas rightly explains there, when a sufficient reason for excepting something from a law does not occur, even the prince himself must be subject to it and either act or judge according to that law, because otherwise the law is rendered useless and the state is disturbed.
If, therefore, the prince has the power of carrying laws immediately from God, then he has it under the condition that he carry them according to right reason. If he has it mediately from God through the state, he has also received from the state a limited power, so that he himself is held to be bound by God and by the state.
Accordingly, the obligation arises from positive and natural law; although he is not bound to carry a law, nevertheless, once it has been established, he is bound by it. And this is what is said: “Law is the common pledge of the city.” Those therefore err who say that, when law is said to command princes, this must be understood not of written but of natural law; for both natural and written law subject the prince, provided that its subject matter also pertains to the prince.
And hence those things which are disputed in favor of the license of kings against the laws are easily answered: when some assert that princes are greater than the laws; when they say that the intention of legislators is not to subject themselves to the laws; when they say that law is the work of the prince and that there is a difference between the giver and the receiver. Those who say these things themselves sufficiently show that they are not firm. For, once a law has been established, the legislator’s will, if it is right, must be that he be subject to the laws; for this has been established by God and belongs to natural right. God and the state, moreover, are distinct from the legislator.
Law is the work of the prince, and the prince is animate justice, but he is bound above all by his own work. So too a vow is manifestly the work of the person vowing, and nevertheless the vow cannot be violated. Certainly, those who make these objections nevertheless bind princes by the laws, as does Gregory of Toledo, book 7, chapter 20, §34.
Moreover, the laws which established the principate—such as those concerning the succession of the firstborn, the prohibition of alienating dominions, and the exclusion of women from succession to the kingdom—cannot, any more than other laws, be ruptured and broken by princes who attained the principate through law, unless the quality and condition of the kingdom and principate are also overturned. Nor can one who has wished to obtain the principate after the law of the kingdom has been changed escape the title of tyrant, because he will usurp the principate contrary to law. Therefore, when Samuel at God’s command chose Saul as the first king in Israel, he spoke the law of the kingdom to the people in the king’s presence, wrote it in a book, and laid it up before the Lord. And Plato says: “It is probable that this disease belongs especially to kings who live arrogantly on account of delights: they wished to strive to have more power than the laws, nor did they remain in concord in that which they had approved by words and oath; whence seditions arose.”
Thus, by the peers of France, the agreements entered into at Troyes in Champagne between King Charles VI and Henry V, king of England, were declared void. By these agreements it had been resolved that the offspring born of Margaret, daughter of Charles VI, and King Henry should be successors in the kingdom of France, to the exclusion of Charles VII, because the agreements had been made contrary to the Salic law, which is fundamental to the kingdom of France. There will also be an example in the law of electing the emperor, which one who wishes to be called a legitimate emperor is not permitted to overturn. And if anyone wishes by his own rashness and forces to invert this law and overthrow in it the authority of the electors and the supreme pontiff, either he will accomplish little or he will stir up almost innumerable slaughters. Likewise, if anyone, scorning the laws for electing the supreme pontiff, should hasten to election, he will disturb with schisms the peace of the whole Christian state. In sum, gather this same conclusion concerning other principalities, in which, if anyone should wish at his own choice to shatter the laws of succession or election, it will come to pass that no state will be firm or safe, or preserved by upright laws or morals. The whole world in which such innovations are made will be nothing other than a cave of robbers and a Lerna of evils, and all things will be done by force rather than justice.
Now if I ask why princes cannot change the law concerning the succession of the firstborn, and if they adduce external causes—disturbances, scandals, and the like—it can come to pass that passing over the firstborn will produce neither sedition nor offenses. The cause, therefore, is the common pledge of the state and the will of God.
§ 10. Laws cannot be stable unless they are confirmed by princes, while the sinew and bond of law is usage. Drinking challenges have been prohibited in Germany by so many good and severe laws, yet moderation could never be introduced among the people because in the courts of certain princes compulsion to equal drinking challenges remains. Their drunken madness has extinguished all the vigor of the law, and the very assemblies in which sobriety was sanctioned resounded with the voices of drunkards. Within our grandfathers’ memory, princes of Flaminia and Aemilia craftily carried laws sanctioned by great penalties, which nevertheless they themselves were the first to transgress; and when the laws were held in contempt and the number of transgressors was great, they exacted the most grievous fines. Those men were wicked tyrants, for they both
carried laws badly and transgressed them worse, and punished those who had violated them worst of all. Nevertheless, by their example they showed how much power the life of princes possesses in the observance of laws. So indeed it is; Lorenzo de’ Medici spoke truly: the city is such as are the morals of the prince.
§ 11. Those who exempt the prince from law are also accustomed to defend their opinion from Novella 105: “But from all things said by us let the fortune of the emperor be excepted, to whom God has subjected the laws themselves, sending him to human beings as animate law, because a perpetual and unceasing consulship has fallen to the emperor among all cities, peoples, and nations, as he distributes in each case the things that are pleasing.”
Indeed, nothing is established from that law for this purpose. For the emperor writes to Strategius, count of the Sacred Largesses, and moderates the expenses of consuls, since they had grown excessive. The rationale of the law is that this customary honor, ordinarily given to the best men, should not diminish their property.
“But none of those who come to the honor of the consulship will experience difficulty if, making moderate expenditure in this manner, he should remain so at every time. And everything whatsoever that those who have hitherto possessed the honor of the consulship received both from the court of your Highness and from our most glorious prefects, or even from elsewhere through our munificence, we shall also now give to them, abbreviating the expenditures to be made by them but not diminishing our liberality. But from all things said by us let the fortune of the emperor be excepted, to whom God has subjected the laws themselves, sending him to human beings as animate law.”
From this I answer first that this law belongs to the class which is not common to the prince and the people. For it pertains to relieving the expenditures of private persons, lest they incur loss from an honor. I answer secondly that the law does not extend more broadly than its rationale, while the rationale does not apply to the emperor, since it expressly says that the emperor’s fortune is greater and that an unceasing consulship has fallen to him. Finally, the consulship follows the scepters of imperial power; he therefore adduces a cause not only just and equitable but also favorable for why he does not wish to use that law himself—namely, lest he restrict his benefactions toward peoples and cities. The pronouncement, therefore, accommodated to that present matter effects nothing against the emperor’s obligation.
God subjected the laws to the prince because he can, according to the opportunity of the times, carry new laws and abolish old ones. Yet he did not subject them in such a way that the prince can at his choice violate them while they remain and bind the whole state.
For God also subjected the bodies of the subjects and their goods to the prince, but he possesses them only by sovereign command, not by ownership. Therefore, without legitimate cause he can neither take goods from the subjects nor use the labor of their bodies or rage against them. Book 5 of the same title, On the Julian Law of Treason, and title On the Goods of the Condemned. So too he cannot remove laws or dispense himself from them unless there is a legitimate cause for dispensing. Therefore, too lax was the royal law among the Persians which permitted whatever the king wished, and which was introduced by flatterers; for at the beginning the kings themselves also lived by the laws. Pernicious was the utterance of Julia, an incestuous woman: “Do you not know that you are emperor and give laws, not receive them?” Accordingly, in many matters the prince uses the same law as others. Novella 9, chapter 11, law 31, and π., Who May Make a Testament, penultimate book, and π., On the Institution of Heirs, book 15. Nevertheless, he enjoys his privileges, so that he is held greater than others. For the prince is animate law, as law is a mute prince.
Since, therefore, it is the emperor’s office perpetually to take counsel for the subjects, and he is accordingly a perpetual consul, as that law teaches, while he takes counsel best if he himself observes the laws, he must not be exempted from the obligation of observing the laws. For besides the legitimate power which they exercise, they will arrogate to themselves a certain immeasurable license and on a slight occasion will be changed into tyrants.
§ 12. When a contract or some act is rendered void by a law, the prince also is bound by the same law, so that the act itself is in truth not valid. Thus law 3, title 23, law 6 of the same: “It has often been established that not even the emperor can claim an inheritance from an imperfect testament. For although the law of imperial power has released the emperor from the solemnities of law, nevertheless nothing is so proper to imperial power as to live by the laws.” Promulgated on the eleventh day before the Kalends of January, in the consulship of Lupus and Maximus, 233.
Because the law of imperial power releases the emperor from the solemnities of law, it is certain that he is bound unless he has been released; therefore, from the nature of the matter, the emperor is bound by them. Here he does not use that law by which he has been released, because it appeared shameful for him to obtain an inheritance from an imperfect testament.
Since, therefore, for a just cause a dispensation has been granted from following the solemnities of law—so that, if the prince is present and acts, his person and good faith are held in place of the solemnities, lest what has been done be void—it is altogether sufficiently shown that in other matters he is bound. For although that invalidating law appears to be penal, nevertheless, because it intends in itself that the act not be valid, he is therefore bound by it.
The cause of this matter is that a certain manner of acting has been established for the common good in order to avoid frauds. Accordingly, an invalidating law regards the common good and the execution of right and justice, which the prince is bound not to diminish but to increase and confirm. Moreover, not every law invalidating an act is penal, because sometimes it gives form to the act, and therefore it also binds the prince. Thus Panormitanus on chapter 2, On Constitutions. For this is the directive law by which the state is bound.
The other solemnities, which are accidental, are supplied by the majesty of the prince, because law or custom has granted this to him. For unless we so establish, many disadvantages will follow. For by his testimony alone the prince will be able to raise up or ruin cases if no solemnity or number of witnesses is required. Nor is there another custom in most places, for all matters are transacted with princes in the same manner according to the forms of the laws as among private persons. And this is truly the majesty of the prince, which is greater than the prince himself.