The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the essential characters of sovereignty, its modifications, extent and limits.
1. Of the characteristics of sovereignty.
I. SOVEREIGNTY we have defined, a right of commanding in the last resort in civil society, which right the members of this society have conferred upon some person, with a view of maintaining order and security in the commonwealth. This definition shews us the principal characteristics of the power, that governs the state, and this is what it will be proper to explain here in a more particular manner.
II. The first characteristic, and that, from which all the others flow, is its being a supreme and independent power, that is, a power, that judges in the last resort of whatever is susceptible of human direction, and relates to the welfare and advantage of society, insomuch that this power acknowledges no other superior power on earth.
III. It must be observed however, that, when we say the civil power is of its own nature supreme and independent, we do not mean thereby, that it does not depend, in regard to its original, on the human will.1 All, that we would have understood, is, that, when once this power is established, it acknowledges no other upon earth superior or equal to it, and consequently, that whatever it ordains in the plenitude of its power cannot be reversed by any other human will, as superior to it.
IV, That in every government there should be such a supreme power is a point absolutely necessary; the very nature of the thing requires it, otherwise it is impossible for it to subsist, For, since powers cannot be multiplied to infinity, we must necessarily stop at some degree of authority superior to all other. And let the form of government be what it will, monarchical, aristocratical, democratical, or mixt, we must always submit to a supreme decision; since it implies a contradiction to say, that there is any person above him, who holds the highest rank in the same order of beings.
V. A second characteristic, which is a consequence of the former, is that the sovereign, as such, is not accountable to any person upon earth for his conduct, nor liable to any punishment from man; for both suppose a superior.
VI. There are two ways of being accountable. One as to a superior, who has a right of reversing what has been done, if he does not find it to his liking, and even of inflicting some punishment, and this is inconsistent with the idea of a sovereign.
The other as to an equal, whose approbation we are desirous of having; and in this sense a sovereign may be accountable, without any absurdity. And even they, who have a right idea of honour, endeavour by such means to acquire the approbation and esteem of mankind, by letting all the world see, that they act with prudence and integrity. But this does not imply any dependance.
VII. I said that the sovereign, as such, was neither accountable nor punishable; that is, so long as he continues really a sovereign, and has not forfeited his right. For it is past all doubt, that if the sovereign, utterly forgetful of the end, for which he was entrusted with the sovereignty, applied it to a quite contrary purpose, and thus became an enemy to the state; the sovereignty returns (ipso facto) to the nation, who, in that case, can act towards the person, who was their sovereign, in the manner they think most agreeable to their security and interests. For, whatever notion we may entertain of sovereignty, no man in his senses will pretend to say, that it is an undoubted title to follow the impulse of our irregular passions with impunity, and thus to become an enemy to society.
VIII. A third characteristic essential to sovereignty considered in itself, is that the sovereign, as such, be above all human or civil law. I say, all human law; for there is no doubt but the sovereign is subject to the divine laws, whether natural or positive.
Regum timendorum in proprios greges,
HOR. lib. 3. Od. 1.
IX. But with regard to laws merely human, as their whole force and obligation ultimately depends on the will of the sovereign, they cannot, with any propriety of speech, be said to be obligatory in respect to him; for obligation necessarily supposeth two persons, a superior and an inferior.
X. And yet natural equity requires sometimes, that the prince should conform to his own laws, to the end, that his subjects may be more effectually induced to observe them. This is extremely well expressed in these verses of Claudian.2
In commune jubes, si quid, censesve tenendum,
Would you your public laws should sacred stand,
XI. To proceed, in treating here of sovereignty, we suppose that it is really and absolutely such in its own nature, and that the establishment of civil laws ultimately depends on the sole will of the person, who enjoys the honours and title of sovereign, insomuch, that his authority, in this respect, cannot be limited; otherwise this superiority of the prince above the laws is not applicable to him in the full extent, in which we have given it him,
XII. This sovereignty, such as we have now represented it, resided originally in the people. But when once the people have transferred their right to a sovereign, they cannot, without contradiction, be supposed to continue still masters of it.
XIII. Hence the distinction, which some political writers make, between real sovereignty, which always resides in the people, and actual sovereignty, which belongs to the king, is equally absurd and dangerous. For it is ridiculous to pretend, that after the people have conferred the supreme authority on the king, they should still continue in possession of that very authority superior to the king himself.
XIV. We must therefore observe here a just medium, and establish principles, that neither favor tyranny, nor the spirit of mutiny and rebellion.
1. It is certain that, so soon as the people submit to a king, really such, they have no longer the supreme power.
2. But it does not follow, from the people’s having conferred the supreme power in such a manner, that they have reserved to themselves in no case the right of resuming it.
3. This reservation is sometimes explicit; but there is always a tacit one, the effect of which discloses itself, when the person, intrusted with the supreme authority, perverts it to an use directly contrary to the end, for which it was conferred upon him, as will better appear hereafter.
XV. But though it be absolutely necessary, that there should be a supreme and independent authority in the state, there is nevertheless some difference, especially in monarchies and aristocracies, with regard to the manner, in which those, who are intrusted with this power, exercise it. In some states the prince governs as he thinks proper; in others he is obliged to follow some fixt and constant rules, from which he is not allowed to deviate; this is what I call the modifications of sovereignty, and hence arises the distinction of absolute and limited sovereignty.
2. Of absolute sovereignty.
XVI. Absolute sovereignty is therefore nothing else, but the right of governing the state as the prince thinks proper, according as the present situation of affairs seems to require, and with out being obliged to consult any person whatever, or to follow any fixt and perpetual rules.
XVII. Upon this head we have several important reflections to make.
1. The word absolute power is generally very odious to republicans; and I must confess, that when it is misunderstood, it is apt to make the most dangerous impression on the minds of princes, especially in the mouths of flatterers.
2. In order to form a just idea of it, we must trace it to its principle. In the state of nature every man has an absolute right to act after what manner he thinks most conducive to his happiness, and without being obliged to consult any person whatever, provided however he does nothing contrary to the laws of nature. Consequently when a multitude of men unite together, in order to form a state, this body hath the same liberty in regard to matters, in which the public good is concerned.
3. When therefore the whole body of the people confer the sovereignty upon a prince, with this extent and absolute power, which originally resided in themselves, and without adding any particular limitation to it, we call that sovereignty absolute.
4. Things being thus constituted, we must not confound an absolute power with an arbitrary, despotic, and unlimited authority. For, from what we have here advanced concerning the original and nature of absolute sovereignty, it manifestly follows, that it is limited, from its very nature, by the intention of those, who conferred it on the sovereign, and by the very laws of God. This is what we must explain more at large.
XVIII. The end, which mankind proposed to themselves in renouncing their natural independence, and establishing government and sovereignty, was doubtless to redress the evils, which they labored under, and to secure their happiness. If so, how is it possible to conceive, that those, who with this view granted an absolute power to the sovereign, should have intended to give him an arbitrary and unlimited authority, so as to intitle him to gratify his caprice and passions to the prejudice of the life, property, and liberty of the subject? On the contrary we have shown above, that the civil state must necessarily empower the subjects to insist upon the sovereign’s using his authority for their advantage, and according to the purposes, for which he was intrusted with it.
XIX. It must therefore be acknowledged, that it never was the intention of the people to confer absolute sovereignty upon a prince, but with this express condition, that the public good should be the supreme law to direct him; consequently so long, as the prince acts with this view, be is authorised by the people; but, on the contrary, if he makes use of his power merely to ruin and destroy his subjects, he acts intirely of his own head, and not in virtue of the power, with which he was intrusted by the people.
XX. Still further, the very nature of the thing does not allow absolute power to be extended beyond the bounds of public utility; for absolute sovereignty cannot confer a right upon the sovereign, which the people had not originally in themselves. Now before the establishment of civil society, surely no man had a power of injuring either himself or others; consequently absolute power cannot give the sovereign a right to hurt and abuse his subjects.
XXI. In the state of nature every man was absolute master of his own person and actions, provided he confined himself within the limits of the law of nature. Absolute power is formed only by the union of all the rights of individuals in the person of the sovereign; of course the absolute power of the sovereign is confined within the same bounds, as those, by which the absolute power of individuals was originally limited.
XXII, But I go still further and affirm, that, supposing even a nation had been really willing to grant their sovereign an arbitrary and unlimited power, this concession would of itself be void and of no effect.
XXIII. No man can divest himself so far of his liberty, as to submit to an arbitrary prince, who is to treat him absolutely according to his fancy. This would be renouncing his own life, which he is not master of; it would be renouncing his duty, which is never permitted; and if thus it be with regard to an individual, who should males himself a slave, much less hath an entire nation that power, which is not to be found in any of its members.
XXIV. By this it appears most evident, that all sovereignty, how absolute soever we suppose it, hath its limits; and that it can never imply an arbitrary power in the prince of doing whatever he pleases, without any other rule or reason than his own despotic will.
XXV. For how indeed should we attribute any such power to the creature, when it is not to be found in the supreme Being himself? His absolute dominion is not founded on a blind will; his sovereign will is always determined by the immutable rules of wisdom, justice, and beneficence.
XXVI. In short the right of commanding, or sovereignty, ought always to be established ultimately on a power of doing good, otherwise it cannot be productive of a real obligation; for reason cannot approve or submit to it; and this is what distinguishes empire and sovereignty from violence and tyranny. Such are the ideas we ought to form of absolute sovereignty.
3. Of limited sovereignty.
XXVII. But although absolute power, considered in itself, and such as we have now represented it, implies nothing odious or unlawful, and in that sense people may confer it upon the sovereign; yet we must allow, that the experience of all ages has informed mankind, that this is not the form of government, which suits them best, nor the fittest for procuring them a state of tranquillity and happiness.
XXVIII. Whatever distance there may be between the subjects and the sovereign, in whatsoever degree of elevation the latter may be placed above the rest, still he is a human creature like themselves; their souls are all cast as it were in the same mould, they are all subject to the same prejudices, and susceptible of the same passions.
XXIX. Again, the very station, which sovereigns occupy, exposes them to temptations, unknown to private people. The generality of princes have neither virtue nor courage sufficient to moderate their passions, when they find they may do whatever they list. The people have therefore great reason to fear, that an unlimited authority will turn out to their prejudice, and that if they do not reserve some security to themselves, against the sovereign’s abusing it, he will some time or other abuse it.
XXX. It is these reflections, justified by experience, that have induced most, and those the wisest nations to set bounds to the power of their sovereigns, and to prescribe the manner in which the latter are to govern; and this has produced what is called limited sovereignty.
XXXI. But, though this limitation of the supreme power be advantageous to the people, it does no injury to the princes themselves; nay it may rather be said, it turns out to their advantage, and forms the greatest security to their authority.
XXXII. It does no injury to princes; for, if they could not be satisfied with a limited authority, their business was to refuse the crown; and when once they have accepted of it upon these conditions they are no longer at liberty to endeavor afterwards to break through them, or to strive to render themselves absolute.
XXXIII. It is rather advantageous to princes, because those, who are invested with absolute power, and are desirous of discharging their duty, are obliged to a far greater vigilance and circumspection, and exposed to more fatigue, than those, who have their task as it were marked out to them, and are not allowed to deviate from certain rules.
XXXIV. In fine this limitation of sovereignty forms the greatest security to the authority of princes; for, as they are less exposed hereby to temptation, they avoid that popular fury, which is sometimes discharged on those, who, having been invested with absolute authority, abuse it to the public prejudice. Absolute power easily degenerates into despotism, and despotism paves the way for the greatest and most fatal resolutions, that can happen to sovereigns. This is what the experience of all ages has verified. It is therefore a happy incapacity in kings not to be able to act contrary to the laws of their country.
XXXV. Let us therefore conclude, that it entirely depends upon a free people, to invest the sovereigns, whom they place over their heads, with an authority either absolute, or limited by certain laws, provided these laws contain nothing contrary to justice, nor to the end of government. These regulations, by which the supreme authority is kept within bounds, are called the fundamental laws of the state.
4. Of fundamental laws.
XXXVI. The fundamental laws of a state, taken in their full extent, are not only the decrees, by which the entire body of the nation determine the form of government, and the manner of succeeding to the crown; but are likewise the covenants betwixt the people and the person, on whom they confer the sovereignty, which regulate the manner of governing, and by which the supreme authority is limited.
XXXVII. These regulations are called fundamental laws, because they are the basis as it were, and foundation of the state, on which the structure of the government is raised, and because the people look upon those regulations, as their principal strength and support.
XXXVIII. The name of laws however has been given to these regulations in an improper and figurative sense; for, properly speaking, they are real covenants. But, as those covenants are obligatory between the contracting parties, they have the force of laws themselves. Let us explain this more at large.
XXXIX. 1. I observe in the first place, that there is a kind of fundamental law essential to all governments, even in those states, where the most absolute sovereignly prevails. This law is that of the public good, from which the sovereign can never depart, without being wanting in his duty; but this alone is not sufficient to limit the sovereignty.
XL. Hence those promises either tacit or express, by which princes bind themselves even by oath, when they come to the crown, of governing according to the laws of justice and equity, of consulting the public good, of oppressing no man, of protecting the virtuous, and of punishing evil doers, and the like, do not imply any limitation to their authority, nor any diminution of their absolute power. It is sufficient, that the choice of the means for procuring the advantage of the state, and the method of putting them in practice, be left to the judgment and disposal of the sovereign; otherwise the distinction of absolute and limited power would be utterly abolished.
XLI. 2. But with regard to fundamental laws, properly so called, they are only more particular precautions, taken by the people, to oblige sovereigns more strongly to employ their authority, agreeably to the general rule of the public good. This may be done several ways; but still these limitations of the sovereignty have more or less force, according as the nation has taken more or less precautions, that they shall have their due effect.
XLII. Hence, 1. a nation may require of a sovereign, that he will engage, by a particular promise, not to make any new laws, nor to levy new imposts, to tax only some particular things, to give places and employments only to a certain set of people, and not to take any foreign troops into his pay, etc. Then indeed the supreme authority is limited in those different respects, insomuch that whatever the king attempts afterwards, contrary to the formal engagement he entered into, shall be void and of no effect. But if there should happen to be an extraordinary case, in which the sovereign thought it conducive to the public good to deviate from the fundamental laws, he is not allowed to do it of his own head, in contempt of his solemn engagement; but in that case he ought to consult the people themselves or their representatives. Otherwise, under pretence of some necessity or utility, the sovereign might easily break his word, and frustrate the effect of the precautions, taken by the nation to limit his power. And yet Puffendorf thinks otherwise.3 But, for a still greater security of the performance of the engagements, into which the sovereign entered, and which limit his power, it is proper to require explicitly of him, that he shall convene a general assembly of the people, or of their representatives, or of the nobility of the country, when any matters happen to fall under debate, which it was thought improper to leave to his decision. Or else the nation may previously establish a council, a senate, or a parliament, without whose consent the prince shall be rendered incapable of acting in regard to things, which the nation did not think fit to submit to his will.
XLIII. 2. History informs us, that some nations have carried their precautions still further, by inserting in plain terms, in their fundamental laws, a condition or clause, by which the king was declared to have forfeited his crown, if he broke through those laws. Puffendorf gives an example of this, taken from the oath of allegiance, which the people of Aragon formerly made to their kings. We, who have as much power as you, make you our king, upon condition, that you maintain inviolably our rights and liberties, and not otherwise.
XLIV. It is by such precautions as these, that a nation really limits the authority, she confers on the sovereign, and secures her liberty. For, as we have already observed, civil liberty ought to be accompanied not only with a right of insisting on the sovereign’s making a due use of his authority, but moreover with a moral certainty, that this right shall have its effect. And the only way to render the people thus certain is to use proper precautions against the abuse of the sovereign power, and in such a manner, that these precautions cannot be easily eluded.
XLV. Besides, we must observe, that these limitations of the sovereign power do not render it defective, nor make any diminution in the supreme authority; for a prince, or a senate, who has been invested with the supreme power upon this footing, may exercise every act of it as well, as in an absolute monarchy. All the difference is, that in the latter the prince alone determines ultimately according to his private judgment; but, in a limited monarchy, there is a certain assembly, who, in conjunction with the king, take cognizance of particular affairs, and whose consent is a necessary condition, without which the king can determine nothing. But the wisdom and virtue of good sovereigns are strengthened by the concurring assistance of those, who have a share in the authority. Princes always do what they incline to, when they incline to nothing but what is just and good; and they ought to esteem themselves happy in haying it put out of their power to act otherwise.
XLVI. 3. In a word, as the fundamental laws, which limit the sovereign authority, are nothing else but the means, which the people use to assure themselves, that the prince will not recede from the general law of the public good in the most important conjunctures, it cannot be said, that they render the sovereignty imperfect or defective. For, if we suppose a prince invested with absolute authority, but at the same time blessed with so much wisdom and virtue, that he will never, even in the most trifling case, deviate from the laws, which the public good requires, and that all his determinations shall be subjected to this superior rule, can we, for that reason, say, that his power is in the least weakened or diminished? No certainly; for the precautions, which the people take against the weakness or the wickedness inseparable from human nature in limiting the power of their sovereigns, to hinder them from abusing it, do not in the least weaken or diminish the sovereignty; but, on the contrary, they render it more perfect, by reducing the sovereign to a necessity of doing good, and consequently by putting him as it were out of a capacity of misbehaving.
XLVII. Neither are we to believe, that there are two distinct wills in a state, whose sovereignty is limited in the manner we have explained; for the state wills or determines nothing but by the will of the king. Only it is to be observed, that, when a condition stipulated happens to be broken, the king cannot decree at all, or at least he must do so in vain in certain points; but he is not, for this reason, less a sovereign, than he was before. Because a prince cannot do every thing according to his humour, it does not follow that he is not the sovereign. Sovereign and absolute power ought not to be confounded; and, from what has been said, it is evident, that the one may subsist without the other.
XLVIII. 4. Lastly, there is still another manner of limiting the authority of those, to whom the sovereignty is committed; which is, not to trust all the different rights, included in the sovereignty, to one single person; but to lodge them in separate hands, or in different bodies; that they may modify or restrain the sovereignty.
XLIX. For example, if we suppose, that the body of the nation reserves to itself the legislative power, and that of creating the principal magistrates; that it gives the king the military and executive powers, etc. and that it trusts to a senate, composed of the principal men, the judiciary power, that of laying taxes, etc. it is easily conceived, that this may be executed in different manners, in the choice of which prudence must determine us.
L. If the government is established on this footing, then, by the original compact of association, there is a kind of partition in the rights of the sovereignty, by a reciprocal contract or stipulation between the different bodies of the state. This partition produces a balance of power, which places the different bodies of the state in such a mutual dependance, as retains every one, who has a share in the sovereign authority, within the bounds, which the law prescribes to them; by which means the public liberty is secured. For example, the regal authority is balanced by the power of the people, and a third order serves as a counterbalance to the two former to keep them always in an equilibrium, and hinder the one from subverting the other. And this is sufficient, concerning the distinction between absolute and limited sovereignty.
5. Of patrimonial and usufructuary kingdoms.
LI. In order to finish this chapter, let us observe, that there is still another accidental difference in the manner of possessing the sovereignty, especially with respect to kings. Some are masters of their crown in the way of patrimony, which they are permitted to share, transfer, or alienate to whom they have a mind; in a word, of which they can dispose, as they think proper; others hold the sovereignty in the way of use only, not of property; and this either for themselves only, or with the power of transmitting it to their descendants according to the laws, established for the succession. It is upon this foundation, that the learned distinguish kingdoms into patrimonial, and usufructuary or not patrimonial.
LII. We shall here add, that those kings possess the crown in full property, who have acquired the sovereignty by right of conquest; or those, to whom a people have delivered themselves up without reserve, in order to avoid a greater evil; but that, on the contrary, those kings, who have been established by a free consent of the people, possess the crown in the way of use only. This is the manner, in which Grotius explains this distinction, in which he has been followed by Puffendorf, and by most of the other commentators or writers.4
LIII. On this we may make the following remarks.
1. There is no reason to hinder the sovereign power, as well as every other right, from being alienated or transferred. In this there is nothing contrary to the nature of the thing; and, if the agreement between the prince and the people bears, that the prince shall have full right to dispose of the crown, as he shall think proper, this will he what we call a patrimonial kingdom.
2. But examples of such agreements are very rare; and we hardly find any other except that of the Egyptians with their king, mentioned in Genesis.5
3. The sovereign power, however absolute, is not of itself invested with the right of property, nor consequently with the power of alienation. These two ideas are intirely distinct, and have no necessary connexion with each other.
4. It is true, some alledge a great many examples of alienations, made in all ages by sovereigns; but either those alienations had no effect; or they were made with an express or tacit consent of the people; or lastly they were founded on no other title, than that of force.
5. Let us therefore take it for an incontestible principle, that, in dubious cases, every kingdom ought to be judged not patrimonial, so long as it cannot be proved, that a people submitted themselves on that footing to a sovereign.
1. See above, chap. iv. etc. when we have proved the contrary.
2. De IV. Consul Honor, ver. 296, et seq.
3. See the Law of Nature and Nations, book vii. chap. vi. sect. 10.
4. See Grotius on the Right of War and Peace, lib. i. chap. iii. sect. 11 and 12 etc. Pufendorf on the Law of Nature and Nations, lib. vii. chap. vi. sect. 14, 15.
5. Chap. xlvii. ver. 18, etc.