The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the various forms of government.
I. NATIONS have been sensible, that it was essential to their happiness and safety to establish some form of government. They have all agreed in this point, that it was necessary to institute a supreme power, to whose will every thing should be ultimately submitted.
II. But the more the establishment of a supreme power is necessary, the more important is the choice of the person, invested with that high dignity. Hence it is that, in. regard to this article, nations are extremely divided, having entrusted the supreme power in different hands, according as they judged it most conducive to their safety and happiness; neither have they taken this step without making several systems and restrictions, which may vary greatly. This is the origin of the different forms of government.
III. There are therefore various forms of government, according to the different subjects, in whom the sovereignty immediately resides, and according as it is inherent either in a single person, or in a single assembly, more or less compounded; and this is what forms the constitution of the state.
IV. These different forms of government may be reduced to two general classes, namely to the simple forms, or to those, which are compounded or mixed.
V. There are three simple forms of government; Democracy, Aristocracy, and Monarchy.
VI. Some nations, more diffident than others, have placed the sovereign power in the multitude itself, that is to say, in the heads of families, assembled and met in council; and such governments are called Popular or Democratic.
VII. Other nations of a bolder turn, passing to the opposite extreme, have established Monarchy, or the government of a single man. Thus Monarchy is a state, in which the supreme power, and all the rights essential to it, reside in a single person, who is called King, Monarch, or Emperor.
VIII. Others have kept a due medium between those two extremes, and lodged the whole sovereign authority in a council, composed of select members, and this is termed an Aristocracy, or the government of the Nobles.
IX. Lastly other nations have been persuaded, that it was necessary, by a mixture of the simple forms, to establish a compound government, and, making a division of the sovereignty, to intrust the different parts of it to different hands; to temper, for example. Monarchy with Aristocracy; and at the same time to give the people a share in the sovereignty; this may be executed different ways.
X. In order to have a more particular knowledge of the nature of these different forms of government, we must observe, that, as in Democracies the sovereign is a moral person, formed by the union of all the heads of families into a single will, there are three things absolutely necessary for the constitution of this form of government.
1. That there be a certain place, and regulated times for deliberating in common on the public affairs; the members of the sovereign council might assemble at different times, or places, whence factions would arise, which would interrupt the union essential to the state.
2. It must be established for a rule, that the plurality of suffrages shall pass for the will of the whole; otherwise no affair could be determined, it being impossible that a great number of people should be always of the same opinion. We must therefore esteem it the essential quality of a moral body, that the resolution of the majority shall pass for the will of the whole.
3. Lastly it is essential, that magistrates should be appointed to convene the people in extraordinary cases, to dispatch ordinary affairs in their name, and to see that the decrees of the assembly be executed; for, since the sovereign council cannot always sit, it is evident that it cannot take the direction of every thing itself.
XI. With regard to Aristocracies, since the sovereignty resides in a council or senate, composed of the principal men of the nation, it is absolutely necessary that the conditions essential to the constitution of a Democracy, and which we have above mentioned, should also concur to establish an Aristocracy.
XII. Further, Aristocracy may be of two kinds, either by birth and hereditary, or elective. The aristocracy by birth, and hereditary, is that, which is confined to a certain number of families, to which birth alone gives right, and which passes from parents to their children, without any choice, and to the exclusion of all others. On the contrary, the elective Aristocracy is that, in which a person arrives at the government by election only, and without receiving any right from birth.
XIII. In a word, it may be equally observed of Aristocracies and Democracies, that, whether in a popular state, or in a government of the nobles, every citizen, or every member of the supreme council, has not the supreme power, nor even a part of it; but this power resides either in the general assembly of the people, convened according to the laws, or in the council of the nobles; for it is one thing to have a share in the sovereignty, and another to have the right of suffrage in an assembly invested with the sovereign power.
XIV. As to Monarchy, it is established, when the whole body of the people confer the sovereign power on a single person, which is done by an agreement betwixt the king and his subjects, as we have before explained.
XV. There is therefore this essential difference between Monarchy and the two other forms of government, that, in Democracies and Aristocracies, the actual exercise of the sovereign authority depends on the concurrence of certain circumstances of time and place; whereas in a Monarchy, at least when it is simple and absolute, the prince can give his orders at all times, and in all places. It is Rome wherever the Emperor resides.
XVI. Another remark, which very naturally occurs on this occasion, is, that in a Monarchy, when the king orders any thing contrary to justice and equity, he is certainly to blame, because in him the civil and natural wills are the same thing. But when the assembly of the people, or a senate, form an unjust resolution, only those citizens or senators, who carried the point, render themselves really accountable, and not those, who were of the opposite sentiment. Let this suffice for the simple forms of government.
XVII. As to mixed or compound governments, they are established, as we have observed, by the concurrence of the three simple forms, or only of two; when for example the king, the nobles, and the people, or only the two latter, share the different parts of the sovereignty between them, so that one administers some parts of it, and the others the remainder. This mixture may be made various ways, as we observe in most republics.
XVIII. It is true, to consider sovereignty in itself, and in the height of plenitude and perfection, all the rights, which it Includes, ought to belong to a single person, or to one body, without any partition; so that there be but one supreme will to govern the subject. There cannot properly speaking be several sovereigns in a state, who shall act as they please, independently of each other. This is morally impossible, and besides would manifestly tend to the ruin and destruction of society.
XIX. But this union of the supreme power does not hinder the whole body of the nation, in which this power originally resides, from regulating the government by a fundamental law, in such a manner, as to commit the exercise of the different parts of the supreme power to different persons or bodies, who may act independently of each other, in regard to the rights committed to them, but still subordinate to the laws, from which those rights are derived.
XX. And provided the fundamental laws, which establish this species of partition in the sovereignty, regulate the respective limits of the different branches of the legislature, so that we may easily see the extent of their jurisdiction; this partition produces neither a plurality of sovereigns, nor an opposition between them, nor any irregularity in the government.
XXI. In a word, in this case there is, properly speaking, but one sovereign, who in himself is possessed of the fulness of power. There is but one supreme will. This sovereign is the body of the people, formed by the union of all the orders of the state; and this supreme will is the very law, by which the whole body of the nation makes its resolutions known.
XXII. They, who thus share the sovereignty among them, are properly no more, than the executors of the law; since it is from the law itself, that they hold their power. And as these fundamental laws are real covenants, or what the civilians call pacta conventa, between the different orders of the republic,1 by which they mutually stipulate, that each shall have such a particular part of the sovereignty, and that this shall establish the form of government, it is evident that, by these means, each of the contracting parties acquires a right not only of exercising the power, granted to it, but also of preserving that original right.
XXIII, Such party cannot even be divested of its right in spite of itself, and by the will of the rest, so long at least as it conducts itself in a manner conformable to the laws, and not manifestly opposite to the public welfare.
XXIV. In a word, the constitution of those governments can be changed only in the same manner, and by the same methods, by which it was established, that is to say, by the unanimous concurrence of all the contracting parties, who have fixed the form of government by the original contract.
XXV. This constitution of the state by no means destroys the union of a moral body, composed of several persons, or of several bodies, really distinct in themselves, but joined by a fundamental law in a mutual engagement.
XXVI. From what has been said on the nature of mixed or compound governments it follows, that, in all such states, the sovereignty is limited; for as the different branches are not committed to a single person, but lodged in different hands, the power of those, who have a share in the government, is thereby restrained; and as they are thus a check to each other, this produces such a balance of authority, as secures the public weal, and the liberty of individuals.
XXVII. But with respect to simple governments; in these the sovereignty may be either absolute or limited. Those, who are possessed of the sovereignty, exercise it sometimes in an absolute, and sometimes in a limited manner, by fundamental laws, which prescribe bounds to the sovereign, with regard to the manner, in which he ought to govern.
XXVIII. On this occasion it is expedient to observe, that all the accidental circumstances, which can modify simple Monarchies or Aristocracies, and which in some measure may be said to limit sovereignty, do not, for that reason, change the form of government, which still continues the same. One government may partake somewhat of another, when the manner, in which the sovereign governs, seems to be borrowed from the form of the latter; but it does not, for that reasons change its nature.
XXIX. For example, in a Democratic state the people may intrust the care of several affairs either to a principal member, or to a senate. In an Aristocracy there may be a chief magistrate, invested with a particular authority, or an assembly of the people to be consulted on some occasions. Or lastly, in a Monarchic state, important affairs may be laid before a senate, etc. But these accidental circumstances do by no means change the form of the government; neither is there a partition of the sovereignty on this account; the state still continues purely either Democratic, Aristocratic, or Monarchic.
XXX. In a word there is a wide difference between exercising a proper power, and acting by a foreign and precarious authority, which may every minute be taken away by him, who conferred it. Thus what constitutes the characteristic of mixed or compound commonwealths, and distinguishes them from simple governments, is, that the different orders of the state, who have a share in the sovereignty, possess the rights, which they exercise, by an equal title, that is to say, in virtue of the fundamental law, and not under the title of commission, as if the one was only the minister or executor of the other’s will. We must therefore be sure to distinguish between the form of government, and the manner of governing.
XXXI. These are the principal observations with respect to the various forms of government. Puffendorf explains himself in a somewhat different manner, and calls those governments irregular, which we have styled mixed; and he gives the name of regular to the simple governments.2
XXXII. But this regularity is only in idea; the true rule of practice ought to be that, which is most conformable to the end of civil society, supposing men to be in their usual state, and taking the general course of things into the account, according to the experience of all countries and ages. Now on this footing, the states, in which the whole depends on a single will, are so far from being happy, that it is certain their subjects have the most frequent reason to lament the loss of their natural independence.
XXXIII Besides, it is with the body politic, as with the human body; there is a difference between a sound and cachectic state.
XXXIV. These disorders arise either from the abuse of the sovereign power, or from the bad constitution of the state; and the causes thereof are to be sought for either in the defects of the governors, or in those of the government itself.
XXXV. In Monarchies, the defects of the person are, when the king has not the qualifications necessary for reigning, when he has little or no attachment to the public good, and when he delivers his subjects up as a prey, either to the avarice or ambition of his ministers, etc.
XXXVI. With regard to Aristocracies, the defects of the persons are, when, by intrigue and other sinister methods, they introduce into the council either wicked men, or such, as are incapable of business, while persons of merit are excluded; when factions and cabals are formed; and when the nobles treat the populace as slaves, etc.
XXXVII. In fine, we sometimes see also in Democracies, that their assemblies are disturbed with intestine broils, and merit is oppressed by envy, etc.
XXXVIII. In regard to the defects of government, they are of various kinds. For example, if the laws of the state be not conformable to the natural genius of the people, tending to engage in a war a nation, that is not naturally warlike, but inclined to the peaceful arts; or if they be not agreeable to the situation and the natural products of the country; thus it is bad conduct not to promote commerce and manufactures in a province, well situated for that purpose, and abounding with the materials of trade. It is also a defect of government, if the constitution of the state renders the dispatch of affairs very slow or difficult, as in Poland, where the opposition of a single member dissolves the diet.
XXXIX. It is customary to give particular names to these defects in government. Thus the corruption of Monarchy is called Tyranny. Oligarchy is the abuse of Aristocracy; and the abuse of Democracy is called Ochlocracy. But it often happens, that these words denote less a defect or disorder in the state, than some particular passion or disgust in those, who use them.
XL. To conclude this chapter, we have only to take some notice of those compound forms of government, which are formed by the union of several particular states. These may be defined an assemblage of perfect governments strictly united by some particular bond, so that they seem to make but a single body with respect to the affairs, which interest them in common, though each preserves its sovereignty full and entire, independently of the others.
XLI. This assemblage is formed either by the union of two or more distinct states under one and the same king; as for instance, England, Scotland, and Ireland, before the union lately made between England and Scotland; or when several independent states agree among themselves to form but a single body; such are the united provinces of the Netherlands, and the Swiss cantons.
XLII. The first kind of union may happen either by marriage, or by succession, or when a people choose for their king the sovereign of another country; so that those different states come to be united under a prince, who governs each in particular by its fundamental laws.
XLIII. As to the compound governments, formed by the perpetual confederacy of several states, it is to be observed, that this is the only method, by which several small governments, too weak to maintain themselves separately against their enemies, are enabled to preserve their liberties.
XLIV. These confederate states engage to each other only to exercise, with common consent, certain parts of the sovereignty, especially those, which relate to their mutual defence against foreign enemies. But each of the confederates retains an entire liberty of exercising, as it thinks proper, those parts of the sovereignty, which are not mentioned in the treaty of union, as parts, that ought to be exercised in common.
XLV. Lastly it is absolutely necessary, in confederate states, to ascertain a time and place for assembling, when occasion requires, and to invest some member with a power of convening the assembly for extraordinary affairs, and such as will not admit of delay. Or they may establish a perpetual assembly, composed of the deputies of each state, for dispatching common affairs according to the orders of their superiors.
1. See part i. chap. vii. No. 35, etc.
2. See Law of Nature and Nations, book vii. chap. v.