The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the sovereign, sovereignty; and the subjects.
I. THE sovereign in a state is that person, who has a right of commanding in the last resort.
II. As to the sovereignty we must define it the right of commanding civil society in the last resort, which right the members of this society have conferred on one and the same person, with a view to preserve order and security in the commonwealth, and in general to procure, under his protection and, through his care, their own real happiness, and especially the sure exercise of their liberty.
III. I say in the first place, that sovereignty is the right of commanding civil society in the last resort, to show that the nature of sovereignty consists chiefly in two things.
The first is the right of commanding the members of the society, that is, of directing their actions with authority, or with a power of compelling.
The second is, that this right ought to be that of commanding in the last resort in such a manner, that every private person be obliged to submit, without a power left to any man of resisting. Otherwise, if this authority was not superior to every other upon earth, it could establish no order or security in the commonwealth, though these are the ends, for which it was established.
IV. In the second place I say, that it is a right conferred on a person, and not on a man, to denote that this person may be not only a single man, but likewise a multitude of men, united in council, and forming only one will, by means of a plurality of suffrages, as we shall more particularly explain hereafter.
V. Thirdly I say to one and the same person to show, that sovereignty can admit of no share or partition, that there is no sovereign at all, when there are many, because there is no one, who commands then in the last resort, and none of them being obliged to give way to the other, their competition must necessarily throw every thing into disorder and confusion.
VI. I add in fine to procure their own happiness, etc. in order to point out the end of sovereignly, that is the welfare of the people. When sovereigns once lose sight of this end, when they pervert it to their private interests, or caprices, sovereignty then degenerates into tyranny, and ceases to be a legitimate authority. Such is the idea, we ought to form of a sovereign and of sovereignty.
VII. All the other members of the state are called subjects, that is, they are under an obligation of obeying the sovereign.
VIII. Now a person becomes a member or subject of a state two ways, either by an express or by a tacit covenant.
IX. If by an express covenant, the thing admits of no difficulty. But, with regard to a tacit covenant, we must observe, that the first founders of states, and all those, who afterwards became members thereof, are supposed to have stipulated, that their children and descendants should, at their coming into the world, have the right of enjoying those advantages, which are common to all the members of the state, provided nevertheless that these descendants, when they attain to the use of reason, be on their part willing to submit to the government, and to acknowledge the authority of the sovereign.
X. I said provided the descendants acknowledged the authority of the sovereign; for the stipulation of the parents cannot, in its own nature, have the force of subjecting the children against their will to an authority, to which they would not of themselves choose to submit. Hence the authority of the sovereign over the children of the members of the state, and the right, on the other hand, which these children have to the protection of the sovereign, and to the advantages of the government, are founded on mutual consent.
XI. Now if the children of members of the state, upon attaining to the years of discretion, are willing to live in the place of their parentage, or in their native country, they are by this very act supposed to submit themselves to the power, that governs the state, and consequently they ought to enjoy, as members of that state, the advantages naturally arising from it. This is the reason likewise, that, when once the sovereign is acknowledged, he has no occasion to tender the oath of allegiance to the children, who are afterward born in his dominions.
XII. Besides, it is a maxim, which has been ever considered, as a general law of government, that whosoever merely enters upon the territories of a state, and by a much stronger reason those, who are desirous of enjoying the advantages, which are to be found there, are supposed to renounce their natural liberty, and to submit to the established laws and government, so far as the public and private safety require. And, if they refuse to do this, they may be considered as enemies, in this sense at least, that the government has a right to expel them the country; and this is likewise a tacit covenant, by which they make a temporary submission to the government.
XIII. Subjects are sometimes called cives, or members of the civil state; some indeed make no distinction between these two terms, but I think it is better to distinguish them. The appellation of civis ought to be understood only of those, who share in all the advantages and privileges of the association, and who are properly members of the state either by birth, or in some other manner. All the rest are rather inmates, strangers, or temporary inhabitants, than members. As to women and servants, the title of member is applicable to them only inasmuch as they enjoy certain rights, in virtue of their dependance on their domestic governor, who is property a member of the state; and all this depends on the laws and particular customs of each government.
XIV. To proceed; members, besides the general relation of being united in the same civil society, have likewise many other particular relations, which are reducible to two principal ones.
The first is, when private people compose particular bodies or corporations.
The second is, when sovereigns entrust particular persons with some share of the administration.
XV. Those particular bodies are called Companies, Chambers, Colleges, Societies, Communities. But it is to be observed, that all these particular societies are finally subordinate to the sovereign.
XVI. Besides, we may consider some as more ancient than the establishment of civil states, and others as formed since.
XVII. The latter are likewise either public, such as are established by the authority of the sovereign, and then they generally enjoy some particular privileges, agreeably to their parents; or private, such as are formed by private people.
XVIII. In fine, these private bodies are either lawful or unlawful. The former are those, which, having nothing in their nature contrary to good order, good manners, or the authority of the sovereign, are supposed to be approved of by the state, though they have not received any formal sanction. With respect to unlawful bodies, we mean not only those, whose members unite for the open commission of any crime, such as gangs of robbers, thieves, pirates, banditti, but likewise all other kinds of confederacies, which the subjects enter into without the consent of the sovereign, and contrary to the end of civil society. These engagements are called cabals, factions, conspiracies.
XIX. Those members, whom the sovereign entrusts with some share of administration, which they exercise in his name and by his authority, have in consequence thereof particular relations to the rest of the members, and are under stronger engagements to the sovereign; these are called ministers, public officers, or magistrates.
XX. Such are the regents of a kingdom, during a minority, the governors of provinces and towns, the commanders of armies, the directors of the treasury, the presidents of courts of justice, ambassadors, or envoys to foreign powers, etc. As all these persons are entrusted with a share of the administration, they represent the sovereign, and it is they, who have properly the name of public ministers.
XXI. Others there are, who assist merely in the execution of public business, such as counsellors, who only give their opinion, secretaries, receivers of the public revenue, soldiers, subaltern officers, etc.