The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the different ways of acquiring sovereignty.
I. THE only just foundation of sovereignty is the consent, or will of the people.1 But as this consent may be given different ways, according to the different circumstances attending it; we may distinguish the several ways of acquiring sovereignty.
II. Sometimes a people are constrained, by force of arms, to submit to the dominion of a conqueror; at other times the people, of their own accord, confer the supreme authority on some particular person. Sovereignty may therefore be acquired either by force and violence, or in a free and voluntary manner.
III. These different acquisitions of sovereignty may agree in some measure to all sorts of governments; but, as they are most remarkable in monarchies, it shall be principally with respect to the latter, that we shall examine this question.
1. Of conquest.
IV. Sovereignty is sometimes acquired by force, or rather is seized by conquest or usurpation.
V. Conquest is the acquisition of sovereignty by the superiority of a foreign prince’s arms, who reduces the vanquished to submit to his government. Usurpation is properly made by a person naturally subject to him, from whom he wrests the supreme power; but custom often confounds these two terms.
VI. There are several remarks to be made on conquest, considered as a method of acquiring the sovereignty.
1. Conquest in itself is rather the occasion of acquiring the sovereignty, than the immediate cause of this acquisition. The immediate cause is the consent of the people, either tacit or expressed. Without this consent the state of war always subsists between two enemies, and one is not obliged to obey the other. All that can be said is, that the consent of the vanquished is extorted by the superiority of the conqueror.
VII. 2. Lawful conquest supposes, that the conqueror has had just reason to wage war against the vanquished. Without this, conquest is by no means of itself a just title; for a man cannot acquire a sovereignty over a nation by bare seizure, as over a thing, which belongs to no proprietor. Thus when Alexander waged war against distant nations, who had never heard of his fame, certainly such a conquest was no more a lawful tide to the sovereignty over those people, than robbery is a lawful manner of becoming rich. The quality and number of the persons do not change the nature of the action, the injury is the same, and the crime equal.
VIII. But if the war be just, the conquest is also the same; for, in the first place, it is a natural consequence of the victory; and the vanquished, who deliver themselves to the conqueror, only purchase their lives by the loss of their liberties. Besides, the vanquished having, through their own fault, engaged in an unjust war, rather than grant the satisfaction they owed, are supposed to have tacitly consented to the conditions, which the conqueror should impose upon them, provided they were neither unjust nor inhuman.
IX. 3. But what must we think of unjust conquests, and of submission, extorted by mere violence? Can it give a lawful right? I answer, we should distinguish whether the usurper has changed the government from a republic into a monarchy, or dispossessed the lawful monarch. In the latter case, he Is obliged to restore the crown to the right owner, or to his heirs, till it can be presumed that they have renounced their pretensions, and this is always presumed, when a considerable time is elapsed without their being willing or able to make any effort to recover the crown?
X. The law of nations therefore admits of a kind of prescription with respect to sovereignty. This is requisite for the interest and tranquillity of societies; a long and quiet possession of the supreme power must establish the legality of it, otherwise there would never be an end of disputes in regard to kingdoms and their limits; this would be a source of perpetual quarrels, and there would hardly be any such thing, as a sovereign lawfully possessed of the supreme authority.
XI. It is indeed the duty of the people, in the beginning, to resist the usurper with all their might, and to continue faithful to their prince; but if, in spite of their utmost efforts, their sovereign is defeated, and is no longer able to assert his right, they are obliged to no more, but may lawfully take care of their own preservation.
XII. The people cannot live in a state of anarchy, and as they are not obliged to expose themselves to perpetual wars, in defence of the rights of their former sovereigns, their consent may render the right of the usurper lawful; and in this case the sovereign dethroned ought to rest contented with the loss of his dominions, and consider it as a misfortune.
XIII. With regard to the former case, when the usurper has changed the republic into a monarchy; if he governs with moderation and equity, it is sufficient, that he has reigned peaceably for some time, to afford reason to believe, that the people consent to his dominion, and to efface what was defective in the manner of his acquiring it. This may be very well applied to the reign of Augustus. But if, on the contrary, the prince, who has made himself master of the republic, exercises his power in a tyrannical manner, and oppresses his subjects, they are not then obliged to obey him. In these circumstances the longest possession imports no more than a long continuation of injustice.
2. Of the election of sovereigns.
XIV. But the most legitimate way of acquiring sovereignty is founded on the free consent pf the people. This is effected either by the way of election, or by the right of succession; for which reason kingdoms are distinguished into elective and hereditary.
XV. Election is that act, by which the people design or nominate a certain person, whom they judge capable of succeeding the deceased king, to govern the state; and, so soon as this person has accepted the offer of the people, he is invested with the sovereignty.
XVI. We may distinguish two sorts of elections, one entirely free and the other limited in certain respects; the former, when the people can choose whom they think proper, and the latter, when they are obliged for example to choose a person of a certain nation, a particular family, religion, etc. Among the ancient Persians no man could be king, unless he had been instructed by the Magi.2
XVII. The time between the death of the king and the election of his successors is called an Interregnum.
XVIII. During the Interregnum the state is, as it were, an imperfect body without a head; yet the civil society is not dissolved. The sovereignty then returns to the people, who, till they choose a new king to exercise it, have it even in their power to change the form of government.
XIX. But it is a wise precaution to prevent the troubles of an Interregnum, to nominate beforehand those, who during that time, are to hold the reigns of government. Thus in Poland the archbishop of Gnesna, with the deputies of great and little Poland are appointed for that purpose.
XX. The persons, invested with this employmant, are called Regents of the kingdom; and the Romans styled them Interreges. They are temporary, and as it were provisional magistrates, who, in the name and by the authority of the people, exercise the acts of sovereignty, so that they are obliged to give an account of their administration. This may suffice for the way of election.
3. Of succession to the crown.
XXI. The other manner of acquiring sovereignty is the right of succession, by which princes, who have once acquired the crown, transmit it to their successors.
XXII. It may seem at first, that elective kingdoms have the advantage over those, which are hereditary, because, in the former, the subjects may always choose a prince of merit, and capable of governing. However experience shows, that, taking all things into the account, the way of succession is more conducive to the welfare of the state.
XXIII. For, 1. by this method we avoid the vast inconveniences, both foreign and domestic, which arise from frequent elections. 2. There is less contention and uncertainty with respect to the title of the successor. 3. A prince, whose crown is hereditary, all other circumstances being equal, will take greater care of his kingdom, and spare his subjects more, in hopes of leaving the crown to his children, than if he only possessed it for life. 4. A kingdom, where the succession is regulated, has greater stability and force. It can form mightier projects, and pursue them more vigorously, than if it were elective. 5. In a word, the person of the prince strikes the people with greater reverence, and they have reason to hope, that the splendor of his descent, and the impressions of his education, will inspire him with the necessary qualities for holding the reigns of government.
XXIV. The order of succession is regulated either by the will of the last king, or by that of the people.
XXV. In kingdoms truly patrimonial, every king has a right to regulate the succession, and to dispose of the crown as he has a mind; provided the choice he makes of his successor, and the manner, in which be settles the state, be not manifestly opposite to the public good, which, even in patrimonial kingdoms, is ever the supreme law.
XXVI. But if the king, prevented perhaps by death, has not named his successor, it seems natural to follow the laws or customs, established in that country, concerning private inheritances, so far at least, as the safety of the state will admit.3 But it is certain that in those cases, the most approved and powerful candidate will always carry it.
XXVII. In kingdoms, which are not patrimonial, the people regulate the order of succession. And. although they may establish the succession as they please, yet prudence requires they should follow the method most advantageous to the state, best adapted to maintain order and peace, and most expedient to promote the public security.
XXVIII. The usual methods are, a succession simply hereditary, which follows nearly the rules of common inheritances; and the lineal succession, which receives more particular limitations.
XXIX. The good of the state therefore requires, that a succession simply hereditary should vary in several things from private inheritances.
1. The kingdom ought to remain indivisible, and not be shared among several heirs in the same degree; for, in the first place, this would considerably weaken the state, and render it less proper to resist the attacks of a foreign enemy. Besides, the subjects, having different masters, would no longer be so closely united among themselves; and lastly this might lay a foundation for intestine wars, as experience has too often evinced.
XXX. 2. The crown ought to remain in the posterity of the first possessor, and not pass to his relations in a collateral line, and much less to those, who have only connexions of affinity with him. This is no doubt, the intention of a people, who have rendered the crown hereditary in any one family. Thus, unless it is otherwise determined, in default of the descendants of the first possessor, the right of disposing of the kingdom returns to the nation.
XXXI. 3. Those only ought to be admitted to the succession, who are born of a marriage conformable to the laws of the nation. For this there are several reasons. 1. This was undoubtedly the intention of the people when they settled the crown on the descendants of the king. a. The people have not the same respect for the king’s natural or base sons, as for his lawful children. 3. The father of natural children is not known for certain, there being no sure method of ascertaining the father of a child, born out of wedlock; and yet it is of the last importance, that there should be no doubt about the birth of those, who are to reign, in order to avoid the disputes which might embroil the kingdom. Hence it is, that, in several countries, the queen is delivered in public, or in the presence of several persons.
XXXII. 4. Adopted children, not being of the royal blood, are also excluded from the crown, which ought to revert to the people so soon as the royal line fails.
XXXIII. 5. Among those, who are in the same degree, whether really or by representation, the males are to be preferred to the females; because they are presumed more proper for the command of armies, and for exercising the other functions of government.
XXXIV. 6. Among several males or several females in the same degree, the eldest ought to succeed. It is birth, which gives this right; for the crown being at the same time indivisible and hereditary, the eldest, in consequence of his birth, has
a preference, of which the younger cannot deprive him. But It is just, that the eldest should give his brothers a sufficiency to support themselves decently, and in a manner suitable to their rank. What is allotted them for this purpose is distinguished by the name of Appennage.
XXXV. 7. Lastly we must observe, that the crown does not pass to the successor in consequence of the pleasure of the deceased king, but by the will of the people, who have settled it on the royal family. Hence it follows, that the inheritance of the particular estate of the king, and that of the crown, are of a quite different nature, and have no connexion with each other; so that, strictly speaking, the successor may accept of the crown, and refuse the private inheritance; and in this case he is not obliged to pay the debts, due upon this particular estate.
XXXVI. But it is certain, that honor and equity hardly permit a prince, who ascends the throne, to use this right; and that, if he has the glory of his royal house at heart, he will, by economy and frugality, be enabled to pay the debts of his predecessor. But this ought not to be done at the expense of the public. These are the rules of succession simply hereditary.
XXXVII. But since in this hereditary succession, where the next heir to the deceased king is called to the crown, terrible disputes may happen concerning the degree of proximity, when those, who remain, are a little distant from the common stem; several nations have established the lineal succession from branch to branch, the rules of which are these following.
1. All those descended from the royal founder are accounted so many lines or branches, each of which has a right to the crown according to the degree of its proximity.
2. Among those of this line, who are in the same degree, in the first place sex, and then age, gives the preference.
3. We must not pass from one line to another, so long as there remains one of the preceding, even though there should be another line of relations nearer to the deceased king. For example:
A king leaves three sons, Lewis, Charles, and Henry. The son of Lewis, who succeeds him, dies without children; Charles leaves a grandson; Henry is still living, and is the uncle of the deceased king; the grandchild of Charles is only his cousin german; and yet this grandchild will have the crown, as being transmitted to him by his grandfather, whose line has excluded Henry and his descendants, till it be quite extinct.
4. Every one has therefore a right to succeed in his rank, and transmits this right to his descendants, with the same order of succession, though he has never reigned himself, that is to say, the right of the deceased passes to the living, and that of the living to the deceased.
5. If the last king has died without issue, we make choice of the nearest line to his, and so on.
XXXVIII. There are two principal kinds of lineal succession, namely Cognatic and Agnatic. These names come from the Latin words Cognati and Agnati, the former of which, in the Roman law, signifies the relations on the mother’s side, and the latter those, on the father’s side.
XXXIX. The Cognatic lineal succession is that, which does not exclude women from the succession, but only calls them after the males in the same line; so that, when only women remain, there is no transition made to another line, but the succession runs back to the female again, in case the males, who were superior or equal to them in other respects, shall happen to fail with all their descendants. This succession is also called Castilian. Hence it follows, that the daughter of the son of the last king is preferred to the son of the daughter of the same prince, and the daughter of one of his brothers to the son of one of his sisters.
XL. The Agnatic lineal succession is that, in which only the male issue of males succeeds; so that women, and all those descending from them, are perpetually excluded. It is also called the French succession. This exclusion of women and their descendants is principally established to hinder the crown from devolving to a foreign race, by the marriage of princesses of the blood royal.
XLI. These are the principal kinds of succession in use, and may be tempered in different manners by the people; but prudence directs us to prefer those, which are subject to the least difficulty; and in this respect the lineal succession has the advantage over that, which is simply hereditary.
XLII. Several questions, equally curious and important, may be started, with regard to the succession of kingdoms. On this subject the reader may consult Grotius.4 We shall only examine who has a right to decide the disputes, that may arise between two or more pretenders to a crown?
1. If the kingdom be patrimonial, and disputes arise after the death of the king, the best method is to refer the cause to arbitrators of the royal family. The welfare and peace of the kingdom recommended this conduct.
2. But if, in kingdoms established by the voluntary act of the people, the dispute arises even in the king’s life time, he is not a competent judge of it; for then the people must have invested him with the power of regulating the succession according to his own pleasure, which is not to be supposed. It therefore belongs to the people to decide the dispute, either by themselves or by their representatives.
3. The same holds true, if the dispute does not arise till after the death of the king. In this case it is either necessary to determine which of the pretenders is nearest to the deceased sovereign; and this is a matter of fact, which the people only ought to determine, because they are principally interested in it.
4. Or the point is to know what degree, or line, ought to have the preference according to the order of succession, establish by the people; and then it is a matter of right. Now who can determine better this point, than the people themselves, who have established the order of succession? Otherwise there would be no method of deciding the dispute but by force of arms, which would be entirely opposite to the good of the society.
XLIII. But, to avoid every perplexity of this kind, it would be proper that the people should, by a fundamental law, expressly reserve to themselves the right of judging in the above cases. What has been said is sufficient on the different ways of acquiring sovereignty.
1. On this subject see part i. chap vi.
2. See Cic. de Divin. lib. i. cap. iv.
3. See the Law of Nature and Nations, book vii. chap. vii. § 11.
4. The Right of War and Peace, book ii. chap. vii. sect. 25, etc.