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ART. XXXIII. The Principles of Politic Law: Being a Sequel to the Principles of Natural and Civil Law. By J. J. Burlamaqui, Counsellor of State, and late Profeffor of Natural and Civil Law at Geneva. Tranflated into English by Mr. Nugent. 8vo. 6s. Nourse.
HE Principles of Natural Law, which a few years ago were likewife tranflated into English by Mr. Nugent, were intended by the author as an introduction to A compleat Syftem of the Laws of Nature and Nations: and it will be proper for fuch of our readers as are not acquainted with this book, to read it before they enter upon the perufal of the performance now before us. Burlamaqui, who, we are told, was defcended from one of those noble families of Lucca, which, upon their embracing the Proteftant religion, were obliged, about two centuries ago, to take fhelter in Geneva, appears to us to be a very judicious writer: his method is eafy and natural; his fentiments just and perfpicuous; and his ftile fuch as is suited to his fubject.
He has divided the work now before us into four parts: in the first of which he treats of the original and nature of civil fociety, of fovereignity in general, and of its peculiar characters, limitations, and essential parts. The first chapter contains some general and preliminary reflexions, which ferve as an introduction to this and the following parts: after which the author proceeds, in the fecond chapter, to lay before his readers the principal conjectures of political writers, in regard to the original of focieties: to which he adds the following reflexions:-That, in the inftitution of focieties, mankind, in all probability, thought rather of redreffing the evils which they had experienced, than of procuring the feveral advantages refulting from laws, commerce, arts and sciences, and all thofe other things in which the beauty of history confifts:-that the natural difpofition of mankind, and their general manner of acting, do not by any means permit us to refer the inftitution of all governments to a general and uniform principle; it being more natural to think that different circumstances gave rife to different ftates:-that, though the first image of governments is undoubtedly to be feen in democratic fociety, or in families; yet there is all the propability in the world, that it was ambition, fupported by force or abilities, which firft fubjected the feveral fathers of families under the dominion of a chief:-and that we must not imagine, that the
firft ftates were fuch as exist in our days, human inftitutions having been always weak and imperfect in their beginnings, and only brought to perfection by time and experience. He obferves, that the question concerning the original of the first governments is rather curious than ufeful or neceffary; that whatever can be faid upon it is reducible to meer conjectures that have only more or lefs probability; and that the point of importance is to know, whether the establishment of a government, and the fupreme authority, was really neceffary, and whether mankind derive from thence any confiderable advantages?
This point he confiders in the third chapter; where, after enumerating the inconveniencies that attended the ftate of nature, he fhews, that civil liberty is far preferable to natural liberty, and that the civil ftate is, of all human ftates, the moft perfect, the most reasonable, and confequently the natural state of man. In the fourth chapter, he examines into the effential conftitution of states, and the manner in which they are formed. If we fuppofe, fays he, that a multitude of people, who had lived hitherto independent of each other, wanted to establish a civil society, there is a neceffity for different covenants, and for a general decree. 1. The first covenant is that by which each individual engages with all the reft to join for ever in one body, and to regulate, with one common confent, whatever regards their prefervation, and their common security. Those who do not enter into this firft engagement, remain excluded from the new fociety. 2. There must afterwards be a decree made for fettling the form of government; otherwife they could never take any fixt meafures for promoting, effectually and in concert, the public fecurity and welfare. 3. In fine, when once the form of govern ment is fettled, there muft be another covenant; whereby, after having pitched upon one or more perfons to be invefted with the power of governing, thote on whom this fu preme authority is conferred, engage to confult most carefully the common fecurity and advantage, and the others promise fidelity and allegiance to the fovereign. This laft covenant includes a fubmiffion of the ftrength and will of each individual to the will of the head of the fociety, as far as the public good requires: and thus it is, that a regular ftate and perfect government is formed.'
After treating of the fovereign, and the fubjects in the fifth chapter, our author proceeds, in the fixth, to confider the foundation of fovereignty. When we enquire here,
fays he, into the fource of fovereignty, our intent is, to know the nearest and immediate fource of it: now it is certain, that the fupreme authority, as well as the title on which this power is eftablished, and which constitutes its right, is derived immediately from the very covenants which conftitute civil fociety, and give birth to govern
And in fact, upon confidering the primitive ftate of man, it appears moft certain, that the appellations of fovereigns and fubjects, mafters and flaves, are unknown to nature. Nature has made us all of the fame fpecies, all equal, all free and independent of each other; and was willing that thofe, on whom fhe has bestowed the fame facul ties, fhould have all the fame rights. It is therefore beyond all doubt, that, in this primitive ftate of nature, man has of himfelf an original right of commanding others; or any title to fovereignty.
There is none but God alone that has of himself, and in confequence of his nature and perfections, a natural, effential, and inherent right of giving laws to mankind, and of exercifing an abfolute fovereignty over them. The cafe is otherwife between man and man: they are of their own nature as independent of one another as they are dependent of God. This liberty and independence is therefore a right naturally belonging to man, of which it would be unjuft to deprive him againft his will.
But if this be the cafe, and there is yet a fupreme authority fubfifting amongst mankind, whence can this authority arife, unless it be from the compacts or covenants, which men have made amongst themfelves upon this fubject? For, as we have a right of transferring our property to another by a covenant; fo, by a voluntary, fubmiffion, a perfon may convey to another, who accepts of the renunciation, the natural right he had of difpofing entirely of his liberty and natural strength.
It must therefore be agreed, that fovereignty refides originally in the people, and in each individual with regard to himself; and that it is the transferring and uniting the feveral rights of individuals in the perfon of the fovereign, that conftituted him fuch, and really produces fovereignty. It is beyond all difpute, for example that when the Ramans chofe Romulus and Numa for their kings, they must have conferred upon them, by this very act, the fovereignty, which thofe princes were not poffelled of before, and to
which they had certainly no other right but what was derived from the election of the people.'
In the two remaining chapters of this firft part, our author confiders the effential characters of fovereignty, its modifications, extent, and limits, and the different effential rights which it includes.
In the fecond part, he explains the different forms of government, the ways of acquiring or lofing fovereignty, and the reciprocal duties of fovereigns and fubjects. This part is divided into seven chapters: in the firft of which he confiders the fimple and mixed forms of government, fhews what is neceffary for the conftitution of each form, and points out the defects it is liable to: after which, he proceeds, in the fecond, to examine which is the beft form of government. He obferves that liberty, which comprehends every thing valuable in human life, has two enemies to be afraid of in civil fociety, viz. licentioufnefs, and tyranny: that the height of happiness and human prudence is to know how to guard against these two enemies: and that the best governments are those which are fo tempered, that, by equally avoiding tyranny and licentioufnefs, they fecure the happiness of the fubjects. There are, fays he, in general, two ways of finding this temperament: the firft confifts in lodging the fovereignty in a council fo compofed, both as to the number and choice of perfons, as that there may be a moral certainty that they fhall have no other interefts than those of the community, and that they fhall always give a faithful account of their conduct to it. This is what we fee happily practifed in moft republics.
The fecond is, by fundamental laws, to limit the fo vereignty of the prince in monarchic ftates, or to give the perfon, who enjoys the honours and title of the fovereignty, only a part of the fovereign authority, and to lodge the other in different hands; for example, in a council, or parliament. This is what produces limited monarchies.
'As for monarchies, it is proper, for example, that the military power, the legiflative power, and that of raifing taxes, fhould be lodged in different hands, to the end that they may not be easily abufed. 'Tis eafy to conceive, that thefe modifications can be made in different manners. The general rule, which prudence directs to follow, is to limit the power of the prince, fo that nothing may be dreaded. from it; but at the fame time not to go to excefs, for fear. of weakening and enervating the government altogether.
By following this juft medium, the people will enjoy the most perfect liberty, fince they have all the moral fureties, that the prince will not abufe his power. The prince, on the other hand, being as it were, under a neceffity of doing his duty, confiderably ftrengthens his authority, and enjoys the greatest happiness and the moft folid glory: for, as the felicity of the people is the end of government, it is alfo the fureft foundation of the throne.
• This fpecies of monarchy, limited by a mixed government, unites the principal advantages of abfolute monarchy, and of the ariftocratic and popular governments; and at the fame time avoids the dangers and inconveniences which are peculiar to each. This then is the happy temperament which we feek for.
As for ariftocratic governments, we must first diftinguifh aristocracy by birth, from that which is elective. Ariftocracy, by birth, has feveral advantages; but it has alfo very great inconveniencies. It infpires the nobility, who govern, with pride; and it entertains, between the grandees and the people, a feparation, a contempt, and a jealoufy, which produces great evils.
But elective ariftocracy has all the advantages of the former, without its defects. As there is no privilege of exclufion, and as the door to employments is open to all the citizens, we find neither pride nor feparation amongst them. On the contrary, there is a general emulation among all the members, which turns every thing to the public good, and contributes infinitely to the prefervation of liberty.
Thus, if we fuppofe, that, in an elective ariftocracy, the fovereignty is in the hands of a council fo numerous, as to include in its bofom the most important interests of the ftate, and never to have any oppofite to them: if, befides, this council is fo fmall, as to maintain order, concord and fecrecy; if it is chofen from among the wifeft, and most virtuous of the citizens; and, laftly, if the authority of this council is limited and kept within rule it cannot be doubted, but such a government is very proper, of itself, to promote the happiness of a nation.
What is moft delicate in thefe governments, is, to temper them in such a manner, as that, at the fame time, that the people are affured of their liberty, by giving them fome share in the government, not to push thefe affurances too far, and make the government approach too much to democracy