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Rights in Civil Society - Part Three

Chapter 3

Titles of first acquisition

1749. These divide into two classes. One class gives a person, whether individual or collective, the right to administer civil government. It also gives a greater right, with which the right to govern is necessarily connected. Fatherhood is an example. Properly speaking, fatherhood is a title of dominion over children, and necessarily includes the right to regulate the modality of the children's rights, that is, to govern them. The other class gives a collective or individual person the simple right to govern, separate from any other right whatsoever. I shall deal with both kinds.

1750. The first, absolute and essential title arising either from a preceding right or from ownership is the title of creation, God's title. It bestows ownership over the being of things (RGC, 536-631).
If such a master did all he had a right to do, he would do it alone. Human beings would do nothing; second causes would be destroyed.
To explain the existence of second causes, we need to distinguish right from its use. A person who possesses some land can allow others to work it and profit from it. This is God's state: although he possesses every good and all rights, he allows human beings to make use of many things to their advantage. This explains human powers and rights, and the truth of the adage, omnis potestas a Deo [all power is from God].

1751. Consequently, all human powers and rights, relative to God, are precarious. We use what belongs to the supreme Being, not to ourselves. We call this use `right' because we cannot despoil another of it. The word right expresses a relationship, not something absolute.(60)

1752. It is clear however that the adage, omnis potestas a Deo, is abused by those who wish to remove the second causes brought into being by human power; the adage in fact authenticates and confirms second causes. It is also abused by those who apply it solely to civil powers. It does in fact apply to all powers equally. Again, it is abused by those who claim to deduce from it the civil power of any particular person, as if the power were poured down directly from heaven. The sacred phrase explains only the origin of civil power in general, not the special titles with which a particular person is invested. Finally, the adage is abused by those who use it to extend civil power unrestrictedly: for them, it indicates the respect due to authority without in any way determining the limits of authority

1753. In the case of the people of Israel, God was not content to let human beings administer and use civil things over which he retained dominion; he wished to administer them himself. This was the case when he removed some of the second causes, and seemed to leave no royal power to any human being. He himself acted as king, and expressly told them so; otherwise, the Hebrews would not have known that he wished to administer directly what he usually left to human beings to administer.

The first title of this civil administration was his positive will. But he did not want this to be the only title; he wanted a human title, of total seigniory. It was not a title of conquest but, in contrast with the title invented by the first sovereign human beings, of merciful liberation from the slavery of Egypt.(61) The resulting form of government was both the most absolute and the least despotic because he used his absolute power for the greatest good of those he governed. It was absolute, because he joined State ownership and seigniory to civil power whose object is the modality of rights.

God, therefore, as a powerful person, made himself known to the enslaved Israelite people whom their master wished to oppress and destroy. His covenants were these: `He would redeem them from such great slavery, and the people on their part would serve him alone' (title of seigniory), and: `He would let them conquer the fertile land of Canaan on condition that he, as their valiant and invincible captain, maintained direct dominion over them, and they were his settlers' (title of State ownership). In this way, God, having acquired all rights over persons and lands (even apart from his essential seigniory as God), could dispose of their modality. He was thus invested with the authority of civil head.

The absoluteness of this power rendered his liberal, equable government most gentle. There was no extreme inequality of fortune. Any inequality in any need could be levelled out directly by the master. And in order not to provoke comment among the rich by doing this at irregular intervals, he maintained equality of patrimonies (a supreme law of ancient republics). For this he established institutions, like the institution of the sabbatical year, when debtors were absolved, lands that had been sold were restored, and bond-servants freed; everything was returned to its first state.

Leviticus says:

`The land shall not be sold in perpetuity, for the land is mine; for you are strangers and sojourners with me. And in all the country you possess, you shall grant a redemption of the land'.(62) And relative to persons, it says: `If your brother becomes poor beside you, and sells himself to you, you shall not make him serve as a slave: he shall be with you as a hired servant and as a sojourner. He shall serve with you until the year of the jubilee; then he shall go out from you, he and his children with him, and go back to his own family, and return to the possession of his fathers. For they are my servants, whom I brought forth out of the land of Egypt.'(63) The reason for such gentle government, unique among the ancients and unbelievable in modern times, is its absoluteness: all the earth and every person belongs to the monarch. Clearly, absolute government is vastly different from despotic government.(64)

1754. Over-exclusive attention to this extraordinary mode of government among the Hebrews, and failure to distinguish sufficiently between natural and supernatural positive relationship, seems to have led Bossuet into many errors about civil power, laws and even natural right.(65) The authority of such a great man requires that I indicate his errors, but I do so with apprehension born of reverence. Because the errors are systematically connected and result as it were in a single error, I note the principal places where in my opinion the great prelate departs from the truth.

1. Sometimes he seems not to acknowledge that the supreme principle of morality is the light of our reason. According to him, there can be no real obligation without positive knowledge of God. Thus, the people cannot form an inviolable covenant except in the presence of God known in this way.(66)

2. Hence, where he discusses the nature and properties of royal authority, he does not say what it actually is, that is, the administration of the modality of the people's rights; he simply says it is sacred. But this tells us nothing about the nature and limits of the authority. Furthermore, the secondary cause is absent from his discussion, because he says nothing about the title through which sovereignty takes form and comes into the hands of a collective or individual person, or of one family rather than another.(67)

3. Because no importance is given to the principle of morality originating in reason, the explanation of the existence of human rights is sought in the institution of society. Consequently Bossuet makes the right of ownership come from society itself. This destroys natural Right. Generally speaking, he says: `Every right must come from public authority.'(68)

4. He extends the limits of this public authority too far. For example, he says that under a regulated government no individual has the right to occupy anything.(69) On the contrary, civil society cannot and must not entirely remove the state of (extra-social) nature among human beings. The right to occupy unoccupied land must remain theirs, even after the institution of civil government.

5. He deduces individuals' rights from public authority (as was the case among the Hebrews where the head of the society, in addition to government, also held ownership of land and seigniory of persons). Consequently, he attributes to law, that is, to the will of public authority, full power not only over the modality of rights but over the rights themselves; indeed, it is the law that distributes and grants them to human beings, in the same way that a master who possesses some good allows another to enjoy the use of it, as we have seen. He thus considers it reasonable that law should enact, as it did amongst the Hebrews, ordinances of pure beneficence for the poor, not of pure justice or protection.

1755. Generally speaking, anyone who possesses a right over something has the right to determine the modality of its use.

1756. A father naturally possesses every right over his children (RF, 1455-1513). He can therefore regulate the modality of any rights that might belong to them.
The power to regulate the modality of rights, separated from every other power, is called `civil power'. It is therefore included in the patria potestas. Let us look at this concept in greater detail.

1757. In parental society, the father aggregates, the child is aggregated. Moreover, the one who aggregates also gives existence to the person aggregated who thus depends on the aggregator through a necessity of nature, not through submission of will, just as effect depends on cause. Although the child when born and grown subsists without the father, his intelligence reminds him that his life comes from his father who produced it and took possession of it from the beginning.

To know how civil authority is included in but distinguished from paternal authority, let us recall what we have said about paternal authority. Three things are distinguished in the grown-up child and member of parental society:(70)

1. A passive substance, which constitutes human nature and has been received from the father:
2. A personal energy by which he can obey the law of uprightness without concern for pleasure or pain, or obey the law of pleasure without concern for uprightness:
3. A light of reason which continually shows him the universal law of what is upright and what is just.

The light of reason, together with the free energy by which he can follow that light, is the exclusive property of the human being. Even slaves have it and cannot be deprived of it. But the first thing, that is, the passive substance of the child, pertains to the father, who has the duty to use it in accord with morality.

1758. As we have seen, usurping another's right is not the same as making immoral use of one's own right (RF, 1481-1482).
The moral rule, which directs the way we must use our right is: `Use what is yours according to its natural end.' Hence the father, who has power over all the rights of his child (except the inalienability of person), is equally obliged to use those rights morally, that is, according to their natural ends.

1759. This explains the two limits of the power of fatherhood: 1. the moral precept governing the right use of what is one's own; 2. respect for the personship of the child.

1760. Despite these limits, patria potestas is far greater than civil power. Its object are rights themselves, whereas the object of civil power is simply the regulation of the modality of rights. Obviously, in the state of nature, civil power is included and absorbed in that of the father.

1761. As we have seen, the system of those who confuse civil with theocratic power is excessive and erroneous. The same must be said of the system of those who confuse civil with paternal power, and maintain that the former has the same nature and extension as the latter.
This is the conclusion of authors who derive civil government from paternal power, as the sole source. An example, in England, is Sir Robert Filmer.

It was easy to foresee that this would give rise to another arbitrary system of the greatest absolutism. The father has all authority over the children and possesses absolutely the rights which they possess relatively to other human beings. Civil authority which becomes the same as paternal authority, and no longer needs to be restricted to the regulation of the modality of rights, is invested with the most absolute seigniory.

1762. In my opinion, the principal mistake of authors of a system so contrary to historical witness depends upon a single omission. They rightly saw paternal regime as the gentlest of all and the most suitable for doing the greatest good, but failed to see that paternal government within the four walls of a home is gentle and powerful in effecting the good of the children because of the love placed in the hearts of the parents by nature. This love is not transferable to other human beings. If indeed a father were able to hand over to another all his authority, he still could not give up a single particle of the natural affection he has for those he has generated. Moreover, despite such great affection, which in reality tempers the absolutism of paternal right, we so often see within the domestic circle tyranny on the part of inhuman parents. Today, civil society feels obliged to remedy this situation by laws and penalties destined to help tormented children.

1763. There is however an element of truth in Filmer's thought. Sidney, his famous opponent, simply fell into the opposite error when refuting him.
Sidney denied the possibility that civil power was derived from paternal power and thus arose from paternal power. He should have been satisfied with establishing that while this paternal origin of civil governments can sometimes be verified and has in fact been verified, it is not the sole origin of civil government. A civil association or government could be established by other jural ways.

If we suppose that human beings are immortal and their numbers grow, the first father would indeed by his nature be the monarch of the human race. Government would be his, nor could any greater human power rise on earth. The organisation of this great body would naturally be committed to the will of the first genitor. The primitive, natural form of civil government would have to be a universal monarchy, a consequence of paternal power (RF, 995).

1764. But the first head dies. It is clear that paternal power belongs to him alone, as Sidney observes, and cannot be passed on. But can civil authority be passed on by inheritance? Sidney's arguments(71) demonstrate that although this is not necessary, it is not absurd. Nevertheless, according to him, this kind of government is not passed on by natural succession.
But could it not be passed on by the father's command and express declaration? If the father dies without leaving to one of his children the civil government he exercised over them, the siblings remain independent of each other. But could not the father constitute one of them head and governor, and oblige the others to obey him in matters concerning the modality of their rights, for the good of the family or relatives?

Can it be proved that paternal authority does not extend so far, when it is naturally unlimited and absolute? If the father can pass on other rights, why not this right? It is true that the father possesses the civil government of his children by the title of fatherhood, a non-transferable title, but we have already said that a right's transferability or alienability depends by nature not on its title but on the right itself. Hence a right possessed through a non-transferable title (the title of the first occupier, for example) can afterwards be possessed by others through a new title substituted for and arising from the first, as in the case of all derived titles, or titles of second acquisition. Can the title of the genitor's authoritative will never be substituted for the non-transferable title of fatherhood? Cannot the firstborn, or someone else preferred by the father, take on the government of his siblings by means of this title? I see no absurdity here, and nothing contrary to the analogy of right. The right of government is by nature transferable, even though the title of generation, which imposes this government first of all on the father, is not transferable.

1765. It is said that antiquity offers no example of a moribund father leaving to one of his children the right to govern his siblings, who are obliged to obey him. I think this is incorrect. Noah certainly subjected the descendants of Canaan to the servants of his brethren, as well as to Shem and Japheth.(72) Isaac constituted Jacob master of his brethren who, in the words of Isaac, would have to bow before Jacob.(73) Jacob set the sceptre of Israel on the house of Judah until the coming of the Messiah.(74) The kings of the Hebrews chose as their successor the child whom they preferred.(75) Mattathias divided the power of government between his sons Judas and Simeon.(76) In the East, where civil society developed with the natural increase of the family, in which all the relatives remain united,(77) the head of the tribe and city was frequently constituted by the will of the dying genitor.

1766. The following facts will convince us that, according to Right, civil power can pass from the father to one or more children:

1. Paternal authority is a complex right,(78) that is, a union of several rights, each of which can be distinguished from the others.
2. The right to govern the modality of the members' rights does not detract from anyone else's rights; on the contrary it helps them. The power, relative to its object, is beneficent not seigniorial. The father's ordinance therefore does not prejudice but helps the children, provided he acts suitably and wisely.

1767. A father uses his authority wrongly if his ordinance lacks the two characteristics of suitability and usefulness, that is, if his choice of head is not required by circumstances or did not fall on a child suitable for governing. The children could agree to correct the part of paternal ordinance which contains an abuse; if they could not emend it, they could abandon it. This would not offend the dead father's right in any way; on the contrary it would conform to the intentions that he must have had, and did in fact have, or must be presumed to have had.
If the paternal ordinance is truly suitable and useful, the children must accept it, and, in my opinion, are jurally obliged to do so. This obligation can be enforced by anyone who suffers harm from its violation.

1768. 3. Finally, the most convincing proof of the father's faculty to divide civil, governmental right from the fullness of his power is this: in the system of social contract it is the fathers who divide and separate this right, by alienating it and transferring it partly or totally to other hands, that is, to civil government, which they institute. Consequently, to maintain that the right of governing civilly cannot be separated from the power of fatherhood is to leave the existence of civil governments without any jural explanation.(79)

1769. Anyone who has bond-servants, that is, persons obliged stably to his service, is clearly also the person who regulates the modality of their rights by general ordinances. In this way he is their civil ruler.(80)

1770. Let us imagine that servitude is total, and that the master does not grant his bond-servants freedom to regulate the modality of their communal rights. He may do this either to prevent their withdrawing from a task to which he has obliged them, or because he has a reasonable fear that they will abuse the faculty of regulating the modality of their rights, to his or their own harm, or finally because this faculty is a power that has come into his ownership through some legitimate title. In this case, the master may not only regulate the modality of their rights but is obliged to do so by the moral law in such a way that they live peacefully together and that the rights of all are maintained and can be used to their greatest advantage (USR, 170-190). If this were not the case, his seigniory would degenerate into wicked dominion, harmful to human nature, like the dominion of slavery.

1771. We must note that, in the case of civil rule joined to absolute seigniory, the master who possesses and administers beneficent rule is not himself a member of the society; he is outside it. It is not contradictory for the person who governs, even with his own power, to remain outside the society he governs.(81)

1772. This would make the ruler a benefactor, not a member;(82) as such he would have a more noble moral state than that of a member.(83)

1773. Civil rule has its origin in another title, ownership of land.

1774. Let us imagine a human being in the state of nature who occupies a certain area of land and has it worked by relatives or settlers. Other families come and establish themselves on his land with his free consent or pay him rent. Because he can make laws for all those whom he allows to live on his property and who need him in order to subsist, he can naturally make himself their civil ruler.

1775. However, the families and individuals who are not his bond-servants remain at liberty to leave the territory (right to emigrate) and thus withdraw from his civil government.

1776. Furthermore, the circumstances do not require the owner, as civil governor, to become a member of the civil community; relative to it he can simply be the civil ruler. On the other hand, he can associate himself with all the families who, although lacking stable goods in the land where they live, could have wealth of some kind, or productive abilities, and could share with him the expenses of civil administration.

1777. We saw that God wished to found the external sovereignty he administered among the Hebrews upon these two titles of seigniory and ownership.
In Egypt, the landowner and the civil ruler are often combined almost entirely in one person; this is more or less the case with Mehemet Ali. The practice is very ancient in Egypt. Towards the end of the 18th century BC, when starvation threatened the Egyptians, they sold their lands and themselves to the king who fed them. Certainly, Pharoah already possessed sovereignty, but let us suppose that civil society did not yet exist. Joseph, foreseeing the famine, would have been able to make himself owner of the lands and lord of the people, and consequently, their civil ruler.

Hence, a great benefit such as liberation of a people from cruel slavery, or salvation from extermination by fierce enemies, starvation or drought, etc., can certainly bring the liberator legitimate ownership of the land and of the persons liberated. Here again we have sovereignty.

1778. Someone may say that this is a case of contract. Undoubtedly contract is present, but its objects are land and services rendered by people, not sovereignty. In fact many contracts concern land and service rendered by persons because a contract is made with each of the possessors. But once dominion over land and persons has been acquired, a contract for civil sovereignty is no longer needed: it is a necessary consequence, an element indivisible from ownership and dominion.

1779. We must note however that this title of ownership of land is not as absolute as the previous titles.
Let us suppose that some wealthy families have received permission from a landowner to live in his vast territory, and that they do more good than harm. If we consider crude right alone, the owner can certainly offer an alternative to the families: either to vacate the land or submit to his civil rule. In addition, he is the only judge competent to decide the fittingness and equity of such action. But because it is possible to appeal from even a competent judge to evident reason, the families have no obligation to obey if their residence is obviously not only harmless but helpful. This would reduce their resistance to the use of `the right of everyone to use another's things in a truly harmless way' (RI, 1622). It is true that the implementation of such extremes is difficult, but not impossible.

1780. Hence, based on the hypothesis, we see:
1. that free families ought to work for a stable, common regulation of the modality of all those rights which might collide with the landowner's rights;
2. but they could have an active vote in the formation of the regulation, and retain part of the civil government.

1781. Whenever dominion over being, life, service rendered by persons, land and generally over the means of subsistence embraces a number of persons, it can be legitimately extended to civil rule.
The titles are theoretical and often practical ways of setting up unique regulation of the modality of the rights of many individuals, that is, government, civil association.

1782. Because the four ways of dominion mentioned above basically include civil rule, they give their possessor the right of coercion, by which dependent persons can be subjected to civil regulation.

1783. So far we have considered the titles to civil rule of first acquisition which are contained in rights of dominion and ownership. We must now discuss the other titles of first acquisition which give a person (collective or individual) civil rule separate from and independent of seigniory and ownership.

1784. They are primarily divided into two classes:
1. Those arising from a unilateral action, that is, from an act of the person assuming rule.
2. Those arising from many acts of fathers, who come together to establish civil rule as the supreme moderator of the modality of rights.

1785. The first are the means by which civil society is formed from top to bottom, so to speak. The second are those by which civil society is formed from bottom to top. Haller wanted to exclude the second way of forming civil society, but in my opinion its rational legitimacy cannot be doubted, nor are historical examples lacking, as the present fashion of studies tells us.
I will indicate the ways of formation and the title to civil rule of both classes. But first I must present two theses which derive from what we have already said and throw greater light on the way by which civil society is constituted by unilateral or joint action.

1786. Civil sovereignty is a responsibility, a service, but also an undeniable good for the person possessing and exercising it (USR, 311, 404-410).

I do not appeal for proof to experience, which shows that all human beings greatly desire sovereignty as the greatest good on earth and shed blood over it. Such madness could come from human depravity and the abuse people intend to make of sovereignty by sometimes directing it to their own good rather than the good of those governed. I want to speak about sovereignty free from the benefits expected from these abuses. Indeed, sovereignty loses most of its attraction when these advantages are removed and remains a purely laborious administration of the modality of one's own and others' rights. The person invested with sovereignty cannot profit from the smallest good pertaining to others. Upright, civil government needs to be able to proclaim continuously to the people the words of Samuel: `Here I am; testify against me before the Lord... Whose ox have I taken? Or whose ass have I taken? Or whom have I defrauded? Whom have I oppressed? Or from whose hand have I taken a bribe...? The Lord is witness against you... that you have not found anything in my hand.'(84)

The union between pure, honest sovereignty and magnanimous poverty is not contradictory. Sovereignty offers no right to self-enrichment and holds no seigniory over the rights of others; its only power is to regulate the modality of those rights. No external, real good is necessarily joined per se to civil sovereignty.

1787. Nevertheless this office is highly desired. What does its good consist in? Three things:

1. The esteem and gratitude of those governed. — The head of civil society is necessarily legislator, leader and judge; this presupposes wisdom, strength and justice. A sovereign endowed with these sublime qualities, whether he possesses them all personally or in his ministers, is the defender and pacifier of his people; in short, he is their continual benefactor. Hence, reverence, affection and national gratitude belong to him. The esteem, gratitude and love of our fellows draws in its wake great social happiness for the upright spirit of the person able to enjoy them; indirectly, they bring a great quantity of goods and legitimate affluence of all kinds.

Sovereignty is a sublime office from which gifts of spirit and soul can shine before all, and great benefits flow ceaselessly over humanity; it can conquer the hearts of an immense number of our fellows. It must therefore be considered a most precious good in this life.

2. The protection of the sovereign against dangers from the abuse of government to which the subject is exposed. — The sovereign, considered as an individual, need not fear that another will harm the subject's rights under the pretext of governing their modality. This advantage becomes more notable in proportion to the wealth of the sovereign considered as a private person, so that the person most interested in the regulation of the modality of rights among a people in the state of nature is the one who owns the most. This individual is most interested in the constitution of good civil society and good government, and must naturally desire to keep it within his grasp.

3. Sovereignty is a school of wisdom and virtue. — Heroism, magnanimity, and a serene, all-embracing, wise mode of thought are engendered in the person exercising sovereignty. Ruling families preserve traditional practices and examples, while experience gradually perfects them in the art of educating their children to great office. Everything contributes to the formation of character and royal blood, a character eminently distinguished by a certain mysterious splendour of nobility, generosity of enterprise, independence, exercise of mercy and constant practice of benefits (USR, 159).

1788. The word subject does seem to express the concept of some kind of servitude; some degree of servitude is certainly present when civil society is not pure but mixed with seigniory. But if subject means simply `citizen', a person civilly subject to a governor, it expresses only the lightest servitude resulting from the alienation of civil power. We have already seen that all servitude consists in the right one has over the actions of another for one's own advantage. Civil sovereignty has no right over actions and things; its task is to regulate socially the modality of the members' rights.

It is very necessary and helpful for those possessing rights to have the modality regulated by a single mind and power; civil society and its government are a benefit for citizens. Any burden imposed comes from abuse, not from the institution of a single mind to regulate the modality of rights. If indeed regulation requires some sacrifice of rights, the sacrifice, as we saw, has to be compensated in such a way that the person making it loses nothing of the good he could otherwise have kept.

1789. To say that modality could be regulated in a far more helpful way than by this kind of institution is not a valid objection. All we can justly claim is that the institution should act in such a way that
1. no individual good is harmed, and no rights are affected (commutative justice);
2. the good it does is equably distributed (strict distributive justice); and
3. this good is the greatest obtainable by the wisdom of the ruling mind, granted that the ruler has taken every care to be enlightened. Because no one can determine the limit of this wisdom, it is reasonable for everyone to be content with what the government can and does achieve.

1790. Government which fails to adhere to these conditions abuses its power. The evil, however, comes not from the nature of government but from its poor administration, from human wickedness.
Clearly, civil sovereignty does not involve any loss of rights; it is not even a limitation of good, but a benefit to those governed.

1791. The first of our two theses gives rise to the following. Civil rule, although only an office for regulating modality, is a suitable object for a right of ownership, provided it contains the goods listed above, because good is a necessary condition for constituting right.(85)
The argument can be further developed by the application of jural reason from which we can derive the titles giving rise to the acquisition of such a right.

1792. Moreover, we can show by legitimate deduction that occupancy peacefully consented to is a just way to acquire sovereignty or civil rule.

1793. In fact, according to individual Right, everyone can take possession of an unoccupied good, provided the occupancy harms no one.
In the state of nature, where the administration of the modality of rights does not generally exist, such an office, although unoccupied, is a good for the person who comes to occupy it without harming but rather helping others. Anyone therefore can legally occupy it. Occupancy is a just way of acquiring both the right of civil rule and every other right.

1794. If family heads did not in fact associate peacefully in the way discussed earlier, some individual, or special society, might reasonably undertake to administer the modality of everyone's rights to the advantage of all, provided they had the force necessary to assert their rule. No one would have the right to obstruct this person or persons although everyone would have the right to take action against abuse of administration, and to request sufficient guarantees in accord with the norms governing rights of defence and guarantee. The good sense of mankind acts in this way and always has done. The voice of upright nature ceaselessly suggested it to those who formed the first civil societies without unjust violence. Often they recognised wisdom in someone or imagined a person inspired by heaven, and either asked that person to be their legislator and civil ruler or, if the person took the lead, submitted spontaneously and accepted his laws and decrees as a great benefit. They felt an infinite gratitude towards him, acclaimed him, deified him. Some individuals were considered on a par with Hercules or Theseus because of the strength and bravery with which they defended their peoples; others, like Orpheus or Amphion, took control of the multitudes by their wisdom and eloquence; others, like Numa, ruled by their piety. In short, numerous individuals gained civil rule through occupancy, persuading whole nations of their capacity to guide them, defend their rights and hold the reins of civil government. To condemn as unjust everything that happened in this way when the first societies were instituted would be mistaken and temerarious. The voice of nature always suggested the dictates of justice to the people. What they accept and what is done in the matter is not unjust unless the people manifest jural resentment.(86)

1795. It may still be objected that although eminent individuals, using their talents, could place themselves at the head of nascent civil societies, the people legitimised the move by open or tacit fellow-feeling. Consequently, the acquired right of these individuals to govern must be sought in the will of the people, in a social contract.

On the contrary:

1. The people's judgment and consent does not in this case concern the right of civil rule but the exclusion of someone from the right. The people, being in the state of nature, can and usually do exclude those who want to govern them without sufficient sagacity or strength. They exercise a just right of defence, a right whose strength corresponds to the danger and extent of the offence threatened under the pretext of taking possession of sovereignty.

The right to occupy sovereignty is therefore subject to the same exceptions as the right to occupy anything whatsoever. If my neighbour or someone else wishes to occupy some unoccupied thing, he has the right. But if I have a well founded reason to fear that his occupancy will invade my rights, I also have the right to prevent his occupancy if he will not give me sufficient guarantee to dispel my fear. This is the right of a people, or rather of each person in the state of nature, against anyone wishing to occupy sovereignty.

1796. 2. If my neighbour's occupancy causes me no fear or he gives me sufficient guarantee to dispel all reasonable fear, and I do not wish to occupy the thing myself, it is indeed true that he occupies some good with my tacit or expressed consent. It is not true however that my consent gives him the right of occupancy or that I put him in possession of the occupied thing. It is also true that the person who occupies sovereignty in the state of nature does so with the people's tacit or expressed consent, but it is by no means true that the people's consent is that which grants sovereignty or the right to occupy it. This is the inoffensive freedom which no one receives from another, although each individual can limit its exercise when they have good reason to fear its abuse.

1797. We conclude:
1. Occupancy is a legitimate way of taking possession of unoccupied sovereignty to which no one has an acquired right.
2. A people cannot give or remove this title, but they can prevent its exercise when, in accord with jural reason, they fear injury to their right.

1798. Jural resentment is symptomatic of injured right (RI, 638). History frequently witnesses to individuals who have quietly become heads of nations without any resentment on the part of the people; indeed some nations have joyfully welcomed them. There can be no doubt that such leaders occupied government legitimately.
This tacit, peaceful and spontaneous consent is the clearest sign that the person assuming civil rule neither usurped it nor invaded others' jural freedom. This kind of freedom had not yet developed; there was no capacity for governing at the time when those outstanding individuals used their own more developed freedom to undertake it, as they were fully entitled to do by jural law.

1799. Resentment, we should note, is a symptom of injured right when human beings are guided by nature. But they also become irritable and show resentment when they are debased by passion or deceived by rebellious persons, even though right is not injured. Modern error, which gives right a material, mechanical stamp, supposes that evil itself can become a right. Today, people think that when they have a right, they can use it capriciously, free from any obligation to conform to reason and fittingness. Rousseau said that people have a right even to harm themselves. What could be more foolish or inhuman! On the contrary, a people is jurally obliged to allow unoccupied sovereignty to be occupied, and cannot capriciously expel the person who has taken the sovereignty; indeed, he can force them to reasonable, civil submission both in a case of right of jural claim and in that of jural freedom, that is, in a case of legitimate occupancy. But I will speak about this forced, civil submission later. For the moment, let us continue our examination of peaceful, spontaneous occupancy.

1800. Occupancy of civil dominion is not complete until the fellow-feeling of all has been given to it either in fact or verbally. It does not yet exist as a title giving a right to civil rule.

1801. Consequently, two cases can be verified wherever someone proposes verbally and attempts in fact to establish a civil society where it does not exist:

First Case. The other family heads (in the state of nature, as we have supposed) refuse the proposal of the individual who aspires to form a civil government, and will not unite with him for the good regulation of the modality of rights. If this refusal is prejudicial to the individual, he can force them to agree to the foundation of a civil commonalty. Later we will consider the jural laws which bind and limit this kind of forced foundation.

1802. Second Case. The others consent to the institution of civil societies in one of three ways:

1. They can consent unanimously, handing over to the person who aspires to government the regulation of the modality of their rights. This consent, whether expressed or tacit, completes the occupancy. — The resulting form of government is monarchic.

2. In consenting to the proposal to found a civil society, some of the fathers may wish to take part in the government; others may not wish to have this responsibility and expressly or tacitly renounce it. Granted the declaration of those who wish to take part, the individual who wants to occupy the government can no longer do so alone because the others' consent is lacking. Consequently he has no right to use force. Those who say they want to occupy the sovereignty together with him have the same right to do so as he. The civil rule must be regulated by all those who desire it; it rests with those who have claimed it through the tacit or expressed consent of others who either do not wish to share it, or do not think or know about it, or cannot share it. Each of the claimants must partake in proportion to the mass of their rights. — Here the government is aristocratic.

3. Finally, all the fathers may both consent to the institution and wish to take part in the civil rule. With this act of their jural freedom they become co-occupiers, none of whom can be excluded provided they pay their contribution. — The form of government that results from this kind of occupancy is democratic.(87)

1803. The last form clearly supposes a greater development and activity of reason and jural freedom in human beings. Allowing another to occupy civil power indicates that human reason still does not see the consequences of the power to govern and that human freedom does not have the means to profit from it. Hence, because jural freedom remains almost dormant, the people appreciate that in their present state it is more useful to be governed than to govern.

1804. Furthermore, because civil rule cannot exist unless someone occupies it, we see the great error of the theory that places it in the hands of the people, as if it exists there naturally before its institution. Neither the people nor the fathers have civil rule by nature; its institution requires some element of action. If the people desire it, they must occupy it and, by doing so, they (or a number of individuals who wish to possess it) become subject to the same jural law affecting individuals. When fathers unite, come to a mutual understanding and determine a way of reliably regulating in common the modality of their rights, sovereignty is instituted and occupied by the people. Only now is it a democracy, not before: Tolle unum turba est, adde unum populus est.

1805. Before presenting further titles to pure civil rule, that is, titles divided from every other right of ownership and seigniory, it will be helpful to look at the historical order, and properly speaking, the humanitarian order, in which these titles arose in the world. We must do this to understand the kind of progress revealed by the institutions and foundations of civil societies among mankind. It will serve as a fragment of a Philosophical History of Civil Society, a work yet to be undertaken.

1806. I have said that it was and still is difficult for human beings to divide the modality of rights from rights themselves, and govern the former without invading the latter. Only time can perfect and refine civil power by separating it from every other power. We certainly cannot claim that human beings of the remotest antiquity were able to make a perfect distinction, even mentally, between rights as such and their modality. Great development of the faculty of abstraction is needed to achieve this, and we have seen how slow this development is in the masses. Whatever strength we attribute to the ancients' faculty of thought, we cannot grant them much abstraction, which comes only after a long time and varied experience. It is time which presents us with the series of successive events. It composes and dismantles things and occurrences, varies their forms and their countless accidents, which then become abstract. Time alone leads the mind to divide and subdivide things, to distinguish and subdistinguish, to separate out individual relationships, circumstances, ownerships. In this way the human mind is educated to abstract.

1807. To distinguish the modality of rights from rights themselves is a profound and difficult abstraction, but nevertheless necessary for separating civil power from all other power. Because the ancients lacked the force of abstraction, they did not and could not have the pure, clear idea of civil government — they were able to conceive this power only as united and incorporated in other powers, not totally separate from them.

1808. This important observation explains very many facts in ancient societies. Civil government is a benefit for the governed on one condition: it must be limited to the regulation of the modality of their rights. If civil government, by that title alone, directs the rights themselves of those governed, it is no longer a benefit but a continual violation of particular rights, a pure despotism. The governments of all the ancient nations were of this kind. Civil government in antiquity was as extensive as its force: if the force was supreme, the government was a supreme, seigniorial power in the full meaning of the term; the emperor's house was truly divina domus [a divine house].

1809. The first government to exist among human beings was paternal. The danger was not, generally speaking, that such government might exceed its power because the power was supreme and universal; all that was required was its reasonable exercise. Nature generally taught fathers to use this reasonableness within their homes, and taught the children the fullest subjection. Consequently, the children hardly ever felt the resentment caused by violation of rights. During the lifetime of the fathers, the children lived together under a single head; later, they separated.
The father could indeed have divided civil power from his paternal authority and passed it on to one of the children, but that would have caused many difficulties.

In the first place, there was no evident need; children did not need common government in the first ages of the human race. The reason is obvious but worth noting. Our mind and faculties cannot attend simultaneously to many things. We cannot think of the advantages to be obtained from the common administration of the modality of our rights before we have thought about the rights themselves.
The first human beings were concerned with their rights, not with the modality of these rights. Their needs and desires were few, the terrain to be cultivated extensive, the flocks abundant — everyone was intent on enjoying domestic happiness. The first, spontaneous movement of families must have been to separate rather than unite.(88) Thus each family lived a long time by itself in complete independence, totally occupied with its own internal sphere. This explains the division of languages and cults: these arose from the almost solitary life which the families must have led for a long time, concentrating on themselves and fleeing relationships with others.

Secondly, relationships with others easily caused dissensions through wickedness and through the selfishness that increased in each family because of their solitary living, and through that lack of abstraction, of which we have spoken, which made it impossible to distinguish one's own right from another's in the same matter. If one family had to govern others, it would have so easily become tyrannical, believing it could dispose of things as it liked and totally unable to conceive how its government must be limited to regulating only the modality of others' rights without in any way disposing of the rights themselves.

Civil government, therefore, divided from patria potestas, served no purpose in the earliest times. Because people were sufficiently occupied in forming their rights, they had neither time nor desire to busy themselves with the modality of rights. Regulation of the modality would have been harmful and insufferable, because there was no one who could exercise it without disposing under such a pretext of every good and every right of others.

1810. We have noted that in its infancy humanity had so little ability in using the faculty of abstraction that it was unable to separate modality from rights; it could not administer modality alone without believing it could invade rights. We have therefore the following important corollary: `Monarchy was less suitable for ancient nations; whatever their civilisation and culture, they had to favour a republic.'(89)

1811. If a single person governs only the modality of others' rights, he does them no harm; his action is beneficial. But the opposite is true if he thinks he has the right to do anything whatever that helps him govern, even to regulate particular rights. This is the principal error of ancient governments: civil governments of antiquity thought they had an unlimited power, at least relative to everything concerning the general good, which they understood as the good of the majority, the good of those influential in government. According to this principle, the veteres migrate coloni, the division of land among soldiers, the prohibition of cultivating the land in certain provinces, the mass punishment of entire cities and provinces, and many other political ordinances which directly removed the goods and life of individuals, were universally justified.

The system was expressed in the maxim: `The well-being of the republic is the supreme law,' which later became `reasons of State'. All this took on an aspect of justice in the eyes of the people for the reason already given: human beings had not separated the modality of rights from rights themselves. Aware of the need for a power over modality, they included in it a power over rights; civil power was necessary and seen to be just and respectable. Because power over particular rights seemed inseparably connected with the modality of rights, it followed, as I said, that power over the latter implied power over the former, and because power over the latter could not be denied, power over the former, no matter how burdensome, could also not be denied. To lighten the burden, another method was used: to make civil power as tolerable as possible, all individuals, or at least many of them, were made part of civil power. In this way republics were born. In republics, individuals themselves carry out civil administration. Those who get into government, that is, the most powerful, do not find it intolerable if civil administration extends to regulating rights as well because, after all, it is they themselves who regulate their own rights.

1812. It will be objected that this seems contrary to many historical documents: Justinian states that `when peoples and nations began, government was in the hands of kings;'(90)in a word, republics succeeded monarchies.(91)
I certainly said that a republic must have been a more suitable form of government for ancient peoples. Their faculty of abstraction had developed so little that they could not conceive civil government in its purity. But this does not mean that this form was chronologically the first. Ancient peoples did not immediately know which form of government was most suitable and fitting to their circumstances. They attained this knowledge only after long and painful experiences, in the way that the greatest discoveries are made gradually, after long and hesitant research. We should not be surprised therefore that kings replaced family heads, whom they resembled, and that republics followed kings.

1813. Many reasons for appointing a single head influenced the first fathers to unite in civil associations:

1. The thought of a single head is certainly the simplest for the human mind.
2. The task of government was far beyond the intellectual power of many. Because jural freedom was so little developed, most preferred to be governed rather than govern.
3. Government as the source of common good was perceived as an idea, not a fact; no one suspected the abuses which experience would later reveal.
4. Probably the sole purpose for uniting at the beginning was defence, which requires unity of strength. Hence, the fathers chose commanders-in-chief rather than kings, uniting under the strongest and most valiant personage.
5. Finally, patria potestas was so obvious that they could not avoid using it as a natural model for civil power.

1814. These observations remain valid even if we suppose that ambitious people exerted no violence on the institution of civil society and that everything was done according to jural law.

However, although history may indeed witness to a tendency in human beings to make the idea of justice a reality, it also reveals the various ways this task was thwarted by the uncontrolled force of passions. Passions are often more active, more vehement than the rational feeling of justice; they prevent its action and bring forth a deformed, lifeless child, a repulsive monster instead of beautiful offspring. This is what we find at the historical foundation of civil societies.

1815. The first cities mentioned in history were built by violent men, like Cain and Nimrod.(92) Consequently, Bodin, Böhmer and others ascribed the origin of States to force and to the desire to dominate. Certainly, some kingdoms arose from these passions and their accompanying violence.

1816. However, when tyrants of this kind wished to found kingdoms for themselves, they did not always have to deal with the ignorant, the weak and the deprived, people with whom they could do as they liked. Sometimes those they wished to subject rose in their own defence. Thus united, they appointed a head, the strongest and bravest among them, through whom they hoped to escape the threatened slavery or feared tyranny. This explains why Hobbes and many others ascribed the origin of civil society to the fear of tyrants and the need for defence.

1817. We should not be surprised therefore that in the beginning some monarchies appeared as a result of tyranny or the need for defence.

1818. But after these monarchical forms had been founded and wars ended, they must have become unbelievably burdensome. As we said, the ancients were unable to separate civil rule from full dominion. Nor could they conceive how the modality of rights could be regulated without control over rights themselves. This explains the change of monarchies into republics, which occurred, however, only where a people had attained sufficient intellective development to be able to rule themselves. They activated that quantity of jural freedom which made them feel the need to govern themselves. This is what happened among the Greeks, Romans and generally among all ancient settlers. In other peoples, laziness and restricted development rendered the evils of tyranny more tolerable than the irksome effort and thought needed to avoid them.

1819. This explains the rapid change to republics among all pagan, civilised peoples. It explains why all Greek and Roman authors extol this form and vaunt it above all others, and why the greatest, most generous and just characteristics of such times emerged in all their splendour wherever this form of government was established.

1820. But the move to escape the oppression of a single human being ran into other obstacles. Accidental disorders arose in republics where the multitude governed, particularly through the manipulations of the ambitious and party struggles. When these evils, accompanied by corruption of morals, reached a certain level, the people were forced back to government by one human being. Any nation that has made some progress can tolerate only a certain level of evil. This explains why neither government by a single person nor by all endures for long among the most alert peoples of the pagan world; the forms of civil rule have nearly always oscillated between the two extremes.

1821. The faculty of abstraction in the human race was developed by Christianity.(93) Christianity led people gradually, although unconsciously, to the very important separation we are discussing, that is, the separation of the modality of rights from rights themselves. This alone leads to the perfect idea of civil government, and would itself be enough to declare the Christian religion a sublime benefactor of humanity.
Civil government, reduced to all the purity of which it is susceptible, is government proper to Christian nations. Monarchy is therefore more suitable to these nations than a republic.

1822. When a monarch limits himself to regulating the modality of rights, preserving intact the rights of all, he is the great benefactor of the nation. In this case the monarchic form loses all its dangerous and burdensome content, which it never did in antiquity. On the other hand, a republic preserves its defects, and is therefore greatly inferior to Christian monarchy.

1823. Moreover, in Christian peoples every seed is developed. Hence, as good and evil grow,(94) a republic necessarily becomes much more difficult, while the dangers it presents increase. Furthermore, it lacks the guarantees that moderate monarchies can give peoples: the gentleness of reigning families, traditional affections and virtues, hierarchical order, ancient inviolable customs, fundamental constitutional laws.

1824. A rigorous democracy has probably never existed, and could not exist, at least not for any length of time. Civil power needs a prevalent force, not found in democracy without perfect agreement, which is rarely achieved and even more rarely endures steadily for any length of time.

If however civil power is placed into the hands of a small number, the rest, whether few or many, are easily sacrificed to them. Moreover, the many, the majority, are always excluded if the republic is huge and possesses provinces. On the other hand, if a body of citizens governs, it is almost impossible for the civil administration to be purified, that is, limited to the modality of rights, although government by one person can very easily accomplish this. A body of citizens, especially those whose authority is prevalent in a group where members are both owners and civil governors, attaches no importance to the limits of civil authority. No one commands in their house; they command themselves, or at least they think they do. Hence their inclination to despotism and their low esteem of those who do not share in government, especially of those whose fortunes are usually much less than theirs.

I said they at least think so, but often they are deluded. In fact, in a republican government equity is considered satisfied if all ordinances are based on a majority vote. In this case, the minority is sacrificed to the majority. If we prescind from inflamed passions, we see that all the difficulties of a republican government stem directly from its form. History confirms this theory: it reveals the extent to which many republican governments openly regulated individual rights. If we compare the laws of different forms of government, we will see that republican laws have always entered more boldly where they do not belong, and more resolutely controlled every kind of ownership among the citizens. Sumptuary laws, which limit the exercise of particular rights, are proper to republics; goods, life, morality and the very religion of the citizens are seen as things belonging to the republic. Whenever a republic is born, even today, it manifests its despotic character and regards the citizens as servants or things of the State. Its symbol is Ruault's motto: `Everything, both body and goods, belongs to the State.'

1825. Let us now return to the discussion of occupancy of civil rule, a title of first, direct acquisition.

We have already asked whether a person who wishes to occupy civil rule can, according to rational Right, force others to submit to him as regulator of their modality of rights. Generally speaking, the answer is `No', but there are special cases where even forced occupancy can be an upright, jural title to civil rule.

1826. The answer must be `No', generally speaking, because there is certainly no place for forced occupancy when peaceful, harmless families willingly agree to the stable regulation of the modality of their mutual rights. In this case, no single father or family can exclusively occupy civil rule (the supreme right to regulate the modality); all the families are disposed to occupy it. A policratic government therefore is the only form possible.

1827. Forced occupancy of non-existent civil rule can be effected in only two cases:
1. when just self-defence requires it;
2. in the just defence of others.

1828. We have seen that rational Right obliges human beings to agree in certain cases, and that they must exercise their rights in a way helpful to others without reducing their own good. We have also seen that as a result of this rational law one human being can require others to exercise their rights in one way rather than another, when this brings equal good to the possessor of the right and reduces obstruction to others' freedom (USR, 161-167). Civil society is simply an extensive agreement by many, or rather, an extensive, enduring determination agreed upon for the regulation of the modality of rights to mutual advantage. A person therefore could require from others (still in the state of domestic society) the establishment of a civil society, that is, that their modality of rights be regulated in common in a determined way, because helpful to himself and without harm to them. Moreover, if they refuse with total unreasonableness, he could force them to this, because their refusal would offend his right.

1829. Let us imagine that a person with great possessions lives among barbarian people who have not yet associated in civil society. Although he has occupancy of vast lands worked by his bond-servants, his property is never safe from the rapacity of his neighbours, who lack both laws and customs. Furthermore, this ferocious, strong and wild people refuse to submit to any social order, rejecting all guidance and despising the threats and cajolements of the landowner. Surely he is allowed to put pressure on them and force them to a regular, civil life? It is true that the yoke, being contrary to their practices, would be burdensome. But because these practices are depraved and lead to vices, the barbarians have no right to maintain them with harm to others; no one, as I must go on repeating, has a right to vice. Here we have an obvious case of the legitimacy of forced occupancy of civil government.

The ancient inhabitants of Sicily, described by Homer, are one of the many historical examples of people in this condition. He describes the Cyclops as

In short, they are a people in a state of domestic society, entirely lacking civil society. Moreover, they are inhospitable, cruel, wicked, proudly despising divinity itself.(95) Surely, no one lacked the right to compel these monsters to duty and make them return to the fold of humanity?

1830. That which can be done in defence of self can be done with laudable generosity if defence of others.
The defence of others can have as its object not only some particular, unjustly oppressed individual, but violated, tortured humanity itself.

1831. Certain vices against nature are reasonably considered by publicists as just titles of war, for example, cannibalism. It follows that whenever savage, immoral hordes and large gangs of robbers cannot otherwise be brought to a human state, every ruler has the right to go to war, and to govern them under just civil rule. In this way he brings them the greatest benefits; his conquest gives him the most human, beneficial title to govern them civilly. And there are still many peoples in this state today.

1832. A right of conquest must therefore be acknowledged.
The abuses of this right have been immense; its use is, and always has been, exceedingly dangerous. But God forbid that we should exclude it for this reason from a treatise on Right. We do not dictate arbitrary laws. As faithfully as possible we copy the laws written in the eternal mind and write them down. We are not legislators, but simply recorders for the divine legislator. In any case, the right of conquest under discussion has no place among civil and Christian nations: a family may be conquered, but not a nation, at least not a civil, Christian nation.

1833. I have said that many or all the fathers can agree to occupy civil sovereignty, that is, constitute themselves as a government. This form, which requires a contract between them, is a title resulting from a combined act.

1834. Moreover they can all choose one or more persons on whom they confer government. There is nothing contradictory in this origin of civil society.
Let us suppose that the fathers come together after living independently and governing their families. After some increase in numbers, they experience the advantage to be had from agreement and the establishment of a common administration regulating the modality of their rights. Finally, they decide to come together and, in assembly, unanimously constitute a government. In this case the government is certainly legitimate, and civil society has begun to exist with full right.

1835. We need to distinguish here between different actions and successive states:
1. The state of separate families without any relationship between them, or without any stable, universal relationship.
2. The idea and proposal to unite, and the effective union or mutual understanding of the family heads, which we call `people'.
3. The result of this agreement and mutual understanding, that is, the establishment of a government.

1836. Civil society, and consequently civil power, exists only when the third action is verified.(96) Previously only families co-existed, but without the civil bond which formed them into a body, a society.

1837. This highlights the absurdity of the statement that civil power resides always and inalienably in the people. In fact, while the human race is in the state of family society, civil power does exist, but only in individual families. In this case, because it is absorbed by paternal authority, it is not yet called civil power or government which, as we have seen, applies solely to the jural relationship of many families.

1838. Hence, prior to the existence of civil society, a people as such has no political rights; they do not form a body, exist as a collective person, have unity. The word `people' is misused when applied to family heads, or whenever a merely mental, potential union, non-existent in reality, is attributed to them. The ancients were correct to refuse the name `people' to the co-existence of many human beings who were not all dependent on a government.(97)

1839. In the state of nature, therefore, no political right pertains to the body of family heads; such a body does not exist. But what of the right of individuals? They have no right in, but only to, civil power; their right is simply that of the jural freedom pertaining to every human being, as we have seen. Through this right of freedom, which allows everyone to occupy all the unoccupied goods he finds, human beings can also occupy government provided it is unoccupied, and provided they have the aptitude and others do not object. This right therefore pertains equally to everyone. Hence, many, and even all together, can attempt occupancy. In this last case, which produces the democratic form of government, the people obtain the right in civil power which, as I said, they did not previously have.(98)

1840. If this is true, how are the titles of occupancy and popular choice distinguished? In the same way that occupancy of land through spontaneous will is distinguished from occupancy through invitations, requests and the help of friends.
Family heads, gathered together to establish a government, can choose a king or some outstanding individuals to govern them. The choice simply means they are inviting these worthy people to assume the burden of governing them and, because the family heads consider government better occupied by others, are renouncing their own freedom to occupy government. If the occupancy takes place without this explicit choice, the fathers' consent is spontaneous, tacit and as it were unconscious. In the case of an explicit choice, the consent is explicit, reflective, formulated, fully conscious and vested in contractual form (USR, 313).

1841. But the decision of the family heads can take another direction, if they wish. They can keep the government for themselves while choosing magistrates or ministers to act on their behalf to represent the government. Thus, although they would bring into existence a representative government, they themselves would occupy civil rule, absolute government.

Representative government can be 1. by one person or 2. by many. In the first case, the fathers choose a ministerial head of the nation, who has executive power, while the legislative power is retained by the national body. In the second case, they choose two or more consuls or a body of magistrates, as they wish.
It is imperative however that the fathers, before having the right to constitute a representative government, occupy absolute government — there is no representative without some absolute to be represented (USR, 313-314).

1842. Hence, the people's right to be represented is not to be considered an exclusive, inalienable right, but a right common to all those who have some absolute power. In absolute monarchy, magistrates effectively represent the ruler; in every government they represent the person (individual or collective) who possesses absolute power, autocracy.

1843. We must note here that the people, even when they retain civil authority, can never exercise it fully on their own behalf. Although absolute power is present equally in republics and monarchies, it is not present in the administrative branch. In monarchies the absolute power, present in the king, can for the most part be exercised by him. For this reason alone, popular government, rather than monarchic, is normally called representative.

1844. We must now ask various jural questions.
If the united family heads choose a leader to govern them, does this person have absolute power, or simply representative power? The question must be answered according to circumstances and the precise formula of choice. In the absence of these, the choice must be interpreted according to the rules of contracts (RI, 1166-1176).

1845. Chief among these rules is that of noting carefully the nature of a contract. The nature of the contract by which someone is given direction over a people assigns to him either complete civil power or only some share of the attributions and duties of civil power. Power is complete when the person is given total direction of the modality of rights; partial when he is chosen to regulate only a part of the modality of the people's rights, in some particular circumstance, in case of some urgent, transitory need. The choice of a commander-in-chief in time of war would be a case in point. The ancient Germans did this when choosing their rulers.(99) Thus recourse was sometimes had to a wise man to obtain wise laws. Such choices are for particular purposes; when these are fulfilled, the authority conferred ceases. Those chosen can be viewed as having responsibility, that is, as ministers, representatives, councillors, masters, directors, etc., but not as absolute, permanent monarchs.

1846. The case is different when someone is chosen as head of civil society in general, without limit of duties or time. Such a choice should be interpreted as an invitation to occupancy of absolute authority or, if the people have already been constituted, as a transmission and alienation of popular authority.

1847. It can happen however, and history offers frequent examples, that a person who has been called to occupy, or has himself occupied, a part of civil authority, gradually occupies it all. Thus, many absolute monarchs began by being simply commanders-in-chief or legislators or priests. The errors of publicists arise precisely from their relying on one or other of these origins to deduce all political regimes. Other origins are excluded.(100) The vast nature of human systems, however, admits them all, and history offers us examples of them all.

Notes

(60) ER, 322-328.

(61) Ex 20: 2.

(62) Lev 25: 23-24.

(63) Lev 25: 39-42.

(64) Montesquieu distinguishes three governments: republican, monarchic and despotic (bk. 2, c. 1). Despotic government, however is not government, but the corruption of all government. This explains why the author of De l'esprit des Lois was reproached for sometimes putting fact in place of right.

(65) This school is wrongly called Catholic. Catholicism is not restricted in this way in its doctrines; it is as extensive as truth. When the first Presbyterians sailed to North America to escape persecution, and founded the first colonies of the United States, they took the mosaic laws as their model because they considered these laws divinely inspired and therefore the best. The consequence was legislation steeped in blood: things which, in the present state of humanity, are considered politically as minor failings, were subject to the death penalty. Such legislation, taken from the Bible, and essentially Hebraic and Protestant-like, soon had to be changed. Catholicism does not lead to such errors because a divine, living magisterium resides within it, a magisterium that is necessary precisely because it protects human beings against political errors of this kind which are natural to people who listen solely to the voice of God communicated long ago to human beings and recorded in the Bible.

(66) `The people could not unite by themselves in an inviolable association, if the agreement were not founded on a higher power, such as the power of God who is the natural protector of human society and unfailing vindicator of every contravention of law' (Politique etc., bk. 1, art. 4, prop. 7). Soon afterwards he says: `Plato, in his Republic and his other book on laws, proposed only those laws which he wanted confirmed by the oracle prior to their acceptance; it is in this way that laws would become sacred and inviolable.' It is true that a little earlier Bossuet had taught that all laws are based on the first law of all, the natural law, that is, on right reason and natural uprightness (art. 2) which undoubtedly come from God. When he says therefore that an agreement is valid only when positively concluded, we are not clear whether he means according to natural uprightness, or in the presence of the supreme Being revealed by some external sign. I think that an agreement is undoubtedly valid even if it lacks God's supernatural, positive confirmation, provided it is made according to the laws of natural uprightness which certainly contain a divine element. Arguing from Bossuet's example from Plato, whose laws are sacred and inviolable only when confirmed by the oracle, it seems that the bishop of Meaux requires a direct revelation of the divine will for laws to be inviolable. We must not, in my opinion, confuse God's will manifested naturally through reason and natural uprightness with his will manifested supernaturally through revelation. In both ways, God's will is inviolable; only when manifested through revelation is it properly called sacred.

(67) Bk. 3, a. 2 — Both royal and paternal authority are inviolable, but properly speaking they are called sacred only in the case of Christian rulers whom the Church has consecrated. The dignity which the ruler has in himself must not be confused with the august characteristic he receives from the church ceremony. The Hebrew kings had this characteristic of being Anointed of the Lord. Precisely because Bossuet always sees the Hebraic regime as the type of every government, he easily applies it to all other sovereigns. The quotation from Sirach which he uses to prove this contradicts him: God `appointed a ruler for every nation (this is what he does with all peoples because all authority comes from God), but Israel is the Lord's own portion' (this is what he did in particular with the people of Israel) (Sir 17: [17]).

(68) `If government is removed, the earth and all its goods become common to all human beings, like air and light. - According to this primitive, natural Right, no one has a right to anything whatsoever; everything is open to all.' What kind of right is this where no one has a right to anything whatsoever? Can it ever be lawful, even where no government has been instituted, to take over what another has occupied? A little later he concludes: `From this arises the right of ownership (that is, from Joshua's distribution of land). In general, every right must come from public authority; no one is allowed to invade anything, to take something for himself by force.' I have already shown that if ownership could not exist before the institution of civil government, it could not exist after (RI, 330-359).

(69) Politique etc., bk. 1, a. 3, prop. 4.

(70) The relationship between father and child is beneficent and seigniorial but not social as long as the child has not acquired sufficient use of reason to realise that he has goods in common with his father, with whom he lives. Prior to this, relationships between parents and children pertain to individual Right. We have discussed them under this heading (RI, 772-894). Father and child are in a state of nature until the child becomes a social being; at birth, he is this only potentially. Assigning the period of puberty as the moment when parental society begins, as Zeiller does (§166), indicates to some extent the arbitrary nature of the discretion found in the souls of writers who have applied themselves at length to the study of positive laws.

(71) Discours sur le Gouvernement, A. Sidney, tom. 1, sects. 12 and 14.

(72) Gen 9: [24-27].

(73) Gen 27: [29].

(74) Gen 49: [10].

(75) 1 Kings 1: [33-35].

(76) 1 Macc 2: [65-66].

(77) Cf. SP, 371-391.

(78) ER, 322-333.

(79) Laws acknowledge a father's faculty to confer on another person a part of his power over his children, for example, the right to feed, educate and govern them. This was practised even more extensively among the Romans in adoption.

(80) Here the master is considered in the state of nature, not in constituted, civil societies where he is a member, not a monarch. However, wherever slavery is practised, we find civil governments leaving the civil regulation of the slaves almost entirely to the master. As we said, this renders civil governments weak and imperfect (RGC, 869-871).

(81) Cf. SP, 111-131.

(82) Ibid., 91-101.

(83) The Gospel itself speaks about this union of seigniory and government: `Those IN AUTHORITY over them are called BENEFACTORS' (Lk 22: 25). But the spirit of the liberator of bond-servants is much more social and beneficent: `But not so with you...'

(84) 1 Sam 12: [3-4].

(85) ER, 252-255.

(86) Aristotle says: `All those raised to the level of king were benefactors of the cities and provinces over which they presided either through preserving the fatherland from forced servitude, like Codrus, or through freeing it from servitude, like Cyrus, or through conquering provinces and establishing cities, like the kings of the Lacedaemonians, Macedonians and Molossi' (Pol., 4, 10).

(87) Signor Baroli's affirmation does not seem true to me: `Wherever civil society had to be instituted for the first time, provident nature always determined that the person required as sovereign possessed exclusively the qualities necessary for his vocation. The fear that many claimants to the crown would arise in nascent States is totally vain and imaginary. The person truly called presents himself automatically in a most natural, human way, so that he cannot but be recognised, much less his vocation opposed' (Il diritto naturale pubblico interno, §22). On the contrary, history is full of violence and struggle. Those who obtained supreme civil power peacefully and legally were mostly brave men chosen by the people to defend them against ferocious enemies. But whatever the merits of this historical information, an author of Right must discuss all jural cases whose concept contains nothing absurd. We have made it our duty to do so.

(88) We have the history in Genesis.

(89) Lycurgus, who tried to inculcate the following maxim, which is a general expression of all that the ancients claimed to achieve, states grandly: `Each citizen is a property of the fatherland and, relative to the fatherland, has no right whatsoever over him- or herself.' According to this principle, citizenship entails the most absolute slavery. Rousseau had the same ideas and granted civil society ownership of its citizens: `When the ruler has told a citizen that it is necessary for the State that he die, he must die.' Understood in a strict sense (as we have a right to do, according to the whole spirit of the author), these words suppose that society is owner of all particular rights, and that the minority is swallowed up by the majority.

(90) Epit.

(91) Haller has maintained this for a long time.

(92) Gen 4.

(93) SP, 839-843.

(94) Ibid., 715-722.

(95) Odyssey, bk. 9.

(96) Baroli says: `Some authors maintain that a mere contract of union suffices for the jural origin of a State, except for aristocratic and monarchic States. Others, like Pufendorf and Egger, accept the necessity of three known levels of contract: union, constitution and subjection. The last level does not take place in a democratic State' (Il Diritto naturale pubblico interno, §28). We must note however that civil subjection is found in every government, but not servile subjection, which does not exist even in purely civil monarchies and aristocracies.

(97) `According to Africanus, the republic is what belongs to the people. But a people is not every association of human beings, irrespective of the way they associate. The people is that association formed by de iure consent, and brought together to be of mutual assistance' (Cicero, De Republica, bk. 1).

(98) Horn fittingly wrote: `Because neither individuals nor the multitude as a loose association possess majesty, they cannot bestow it on a king' (De Civit., bk. 2, c. 1). If we substitute `civil rule' for that mysterious, obscure word `majesty', the truth is clear.

(99) P. Cluver shows in his Germania that 1. government among the ancient Germans was military; 2. the king was chosen by the people; 3. the people obeyed the king as long as it pleased them. The Lombards placed a staff in the hand of their king as a sign of their choice. The Visigoths lifted the chosen king on a shield.

(100) Haller is too restrictive in determining the origins of civil society, even though he ranged more widely than his predecessors. For him, Filmer and Adam, who derived all government from patria potestas, Gatterer, who derived it from leaders of armies, and other authors, who derived it from priestly power, were far too exclusive and systematic. Haller accepted these three origins, but history offers others, which we have indicated.

Chapter 04

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