The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the parts of sovereignty, or of the different essential rights, which it includes.
I. AN order to finish this first part nothing remains, but to treat of the different parts of sovereignty. We may consider sovereignty as an assemblage of various rights and different powers, which, though distinct, are nevertheless conferred for the same end; that is to say, for the good of the society, and which are all essentially necessary for this same end. These different rights and powers are called the essential parts of sovereignty.
II. To be convinced, that these are the parts of sovereignty, we need only attend to its nature and end.
The end of sovereignty is the preservation, the tranquillity, and the happiness of the state, as well within itself, as with respect to its interests abroad; so that sovereignty must include every thing, that is essentially necessary for procuring this twofold end.
III. 1. As this is the case, the first part of sovereignty, and that, which is, as it were, the foundation of all the rest, is the legislative power, by virtue of which the sovereign establishes general and perpetual rules, which are called laws. By these means every one knows how he ought to conduct himself for the preservation of peace and good order, what share he retains of his natural liberty, and how he ought to exert his rights, so as not to disturb the public tranquillity.
It is by means of laws, that we contrive so nobly to unite the prodigious diversity of sentiments and inclinations, observable among men, and establish that concert and harmony so essential to society, since they direct the different actions of individuals to the general good and advantage. But it must be supposed, that the laws of the sovereign contain nothing opposite to the divine laws, whether natural or revealed.
IV. 2. To the legislative we must join the coercive power, that is to say, the right of ordaining punishments against those, who molest the community by their irregularities, and the power of actually inflicting them. Without this power the establishment of civil society and of laws would be absolutely useless, and we could not propose to live in peace and safety. But, that the dread of punishments may make a sufficient impression on the minds of the people, the right of punishing must extend to the power of inflicting the greatest of natural evils, which is death; otherwise the dread of punishment would not be always capable of counterbalancing the force of pleasure, and the impulse of passion. In a word the subjects must have a stronger interest to observe, than to violate the law. Thus the vindictive power is certainly the highest degree of authority, which one man can hold over another.
V. 3. Further it is necessary for the preservation of peace, that the sovereign should have a right to take cognizance of the different quarrels between the subjects, and to decide them in the last resort; as also to examine the accusations, laid against any person, in order to absolve or punish him by his sentence, conformably to the laws; this is what we call jurisdiction, or the judiciary power. To this we must also refer the right of pardoning criminals, when the public utility requires it.
VI. 4. Besides, as the ways of thinking, or opinions, embraced by the subject, may have a very great influence on the welfare of the commonwealth, it is necessary that sovereignty should include a right of examining the doctrines, taught in the state, so that nothing may be publicly advanced, but what is conformable to truth, and conducive to the advantage of society. Hence it is, that it belongs to the sovereign to establish professors, academies, and public schools; and the supreme power, in matters of religion, is as much his right, as the nature of the thing will permit. After having secured the public repose at home, it is necessary to guard the people against strangers, and to procure to them, by leagues with foreign states, all the necessary aids and advantages, whether in the seasons of peace or war.
VII. 5. In consequence of this, the sovereign ought to be invested with the power of assembling and arming his subjects, or of raising other troops in as great a number, as is necessary for the safety and defence of a state, and of making peace, when he shall judge proper.
VIII. 6. Hence also arises the right of contracting public engagements, of making treaties and alliances with foreign states, and of obliging all the subjects to observe them.
IX. 7. But as the public affairs, both at home and abroad, cannot be conducted by a single person, and as the sovereign is incapable of discharging all these duties, he must certainly have a power to create ministers and subordinate magistrates, whose business it is to take care of the public welfare, and transact the affairs of the state in his name, and under his authority. The sovereign, who has entrusted them with those employments, may, and ought to compel them to discharge them, and oblige them to give an exact account of their administration.
X. 8. Lastly the affairs of the state necessarily demand, both in times of peace and war, considerable expenses, which the sovereign himself neither can nor ought to furnish. He must therefore have a right of reserving to himself a part of the goods or products of the country, or of obliging the subjects to contribute either by their purse, or by their labor and personal service, as much, as the public necessities demand, and this is called the right of subsidies or taxes.
To this part of the sovereignty we may refer the prerogative of coining money, the right of hunting, with that of fishing, etc. These are the principal parts essential to sovereignty.
END OF THE FIRST PART.