The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the immediate source, and foundation of sovereignty.
I. THOUGH what has been said in the fourth chapter concerning the structure of states is sufficient to show the original and source Of sovereignty; as well as its real foundation; yet, as this is one of those questions, on which political writers are greatly divided, if will not be amiss to examine it somewhat more particularly; and what remains still to be said upon this subject will help to give us a more complete idea of the nature and end of sovereignty.
II. When we inquire here into the source of sovereignty, our intent is to know the nearest and immediate source of it; now it is certain; that the supreme authority, as well as the title, on which this power is established, and which constitutes its right, is derived immediately from the very covenants, which constitute civil society, and give birth to government.
III. And indeed, upon considering the primitive state of man, it appears most certain, that the appellations of sovereigns and subjects, masters and slaves, are unknown to nature. Nature has made us all of the same species, all equal, all free and independent of each other; in short she was willing that those on whom she has bestowed the same faculties, should have all the same rights. It is therefore beyond all doubt, that, in this primitive state or nature, no man has of himself an original right of commanding others, or any tide to sovereignty.
IV. There is none but God alone, that has, in consequence of his nature and perfections, a natural, essential, and inherent right of giving laws to mankind, and of exercising an absolute sovereignty over them. The case is otherwise between man and man; they are in their own nature as independent of one another, as they are dependent on God. This liberty and in dependence is therefore a right naturally belonging to man, of which it would be unjust to deprive him against his will.
V. But if this be the case, and there is yet a supreme authority subsisting amongst mankind, whence can this authority arise, unless it be from the compacts or covenants, which men have made amongst themselves upon this subject? For, as we have a right of transferring our property to another by a covenant; so, by a voluntary submission, a person may convey to another, who accepts of the renunciation, the natural right he bad of disposing of his liberty and natural strength.
VI. It must therefore be agreed, that sovereignty resides originally in the people, and in each individual with regard to himself; and that it is the transferring and uniting the several rights of individuals in the person of the sovereign, that constitutes him such, and really produces sovereignty. It is beyond all dispute for example, that, when the Romans chose Romulus and Numa for their kings, they must have conferred upon them, by this very act, the sovereignty, which those princes were not possessed of before, and to which they had certainly no other right, than what was derived from the election of the people.
VII. Nevertheless, though it be evident, that the immediate original of sovereignty is owing to human covenants, yet nothing can hinder us from affirming, with good ground, that it is of divine, as well as human right.
VIII. And indeed right reason having made it plainly appear, after the multiplication of mankind, that the establishment of civil societies and of a supreme authority was absolutely necessary for the order, tranquillity, and preservation of the species, it is as convincing a proof, that this institution is agreeable to the designs of Providence, as if God himself had declared it to mankind by a positive revelation. And, since God is essentially fond of order, he is doubtless willing, that there should be a supreme authority upon earth, which alone is capable of procuring and supporting that order amongst mankind, by enforcing the observance of the laws of nature.
IX. There is a beautiful passage of Cicero to this purpose.1 Nothing is more agreeable to the supreme Deity, that governs this universe, than civil societies lawfully established.
X. When therefore we give to sovereigns the title of God’s vicegerents upon earth, this does not imply, that they derive their authority immediately from God; but it signifies only, that by means of the power lodged in their hands, and with which the people have invested them, they maintain, agreeably to the views of the Deity, both order and peace, and thus procure the felicity of mankind.
XI. But if these magnificent titles add a considerable lustre to sovereignty, and render it more respectable, they afford likewise, at the same time, an excellent lesson to princes. For they cannot deserve the title of God’s vicegerents upon earth, but inasmuch as they make use of their authority pursuant to the views and purposes, for which they were entrusted with it, and agreeably to the intention of the Deity, that is, for the happiness of the people, by using all their endeavors to inspire them with virtuous principles.
XII. This without doubt is sufficient to make us look upon the original of government, as sacred; and to induce subjects to show submission and respect to the person of the sovereign. But there are political writers, who carry the thing further, and maintain that it is God, who confers immediately the supreme power on princes, without any intervention or concurrence of men.
XIII. For this purpose, they make a distinction betwixt the cause of the state, and the cause of sovereignty. They confess indeed, that states are formed by covenants, but they insist, that God himself is the immediate cause of the sovereignty. According to their notions, the people, who choose to themselves a king, do not by this act confer the supreme authority upon him, they only point out the person, whom heaven is to entrust with it. Thus the consent of the people to the dominion of one or more persons, may be considered as a channel, through which the supreme authority flows, but is not its real source.
XIV. The principal argument, which these writers adopt, is, that, as neither each individual amongst a number of free and independent people, nor the whole collective multitude, are in any wise possessed of the supreme authority, they cannot confer it on the prince. But this argument proves nothing. It is true, that neither each member of the society, nor the whole multitude collected, are formally invested with the supreme authority, such as we behold it in the sovereign, but it is sufficient, that they possess it virtually, that is, that they have within themselves all, that is necessary to enable them, by the concurrence of their free will and consent, to produce it in the sovereign.
XV. Since every individual has a natural right of disposing of his natural freedom according as he thinks proper, why should he not have a power of transferring to another that right, which he has of directing himself? Now is it not manifest, that, if all the members of this society agree to transfer this right to one of their fellow members, this cession will be the nearest and immediate cause of sovereignty? It is therefore evident, that there are, in each individual, the seeds as it were of the supreme power. The case is here very near the same, as in that of several voices, collected together, which by their union produces a harmony, that was not to be found separately in each.
XVI. But it will be here objected, that the scripture itself says, that every man ought to be subject to the supreme powers, because they are established by God.2 I answer with Grotius, that men have established civil societies, not in consequence of a divine ordinance, but of their voluntary motion, induced by the experience they had of the incapacity, which separate families were under, of defending themselves against the insults and attacks of human violence. Thence (he adds) arises the civil power, which St. Peter, for this reason calls a human power,3 though in other parts of scripture it bears the name of a divine institution,4 because God has approved of it as an establishment useful to mankind.5
XVII. The other arguments in favor of the opinion we have been here refuting do not even deserve our notice. In general it may be observed, that never were more wretched reasons produced upon this subject, as the reader may be easily convinced by reading Puffendorf on the Law of Nature and Nations, who, in the chapter corresponding to this, gives these arguments at length, and fully refutes them.6
XVIII. Let us therefore conclude, that the opinion of those, who pretend that God is the immediate cause of sovereignty, has no other foundation, than that of adulation and flattery, by which, in order to render the authority of sovereigns more absolute, they have attempted to render it independent of all human compact, and dependant only on God, But were we even to grant, that princes held their authority immediately of God, yet the consequences, which some political writers want to infer, could not be drawn from this principle.
XIX. For since it is most certain, that God could never entrust princes with this supreme authority, but for the good of society in general, as well as of individuals, the exercise of this power must necessarily be limited by the very intention, which the Deity had in conferring it on the sovereign; insomuch that the people would still have the same right of refusing to obey a prince, who, instead of concurring with the views of the Deity, would on the contrary endeavour to cross and defeat them, by rendering his people miserable, as we shall prove more particularly hereafter.
1. Nihil est illi principi Deo, qui omnem hunc mundum regit, quod quidam in terri fiat acceptius, quam consilia catusque hominum jure sociati, qua civitates appellantur. Sem. Sip. cap. 3.
2. Rom. 13.
3. 1 Pet. 2:13.
4. Rom. 13:1.
5. Grotius on the Right of War and Peace, book i. chap. iv. § 7, 12. No. 3. See above, No. 7, and following.
6. See the Law of Nature and Nations, book vii. chap. iii.