When the sovereignty of the people themselves is thus realized, the republic is established; and it is no longer necessary to give up the reins of government into the hands of those by whom they have been hitherto held, especially as they might again destroy all the new institutions by their arbitrary and absolute will.
It was therefore a great error in judgement on the part of a powerful ruler in our time, when he tried to extricate himself from the embarrassment arising from great public debts, by transferring this burden to the people, and leaving them to undertake and distribute them among themselves as they might best think fit.It thus became natural that the legislative power, not only in respect of the taxation of the subjects, but in respect of the government, should come into the hands of the people.It was requisite that they should be able to prevent the incurring of new debts by extravagance or war; and in consequence, the supreme power of the monarch entirely disappeared, not by being merely suspended, but by passing over in fact to the people, to whose legislative will the property of every subject thus became subjected.Nor can it be said that a tacit and yet obligatory promise must be assumed as having, under such circumstances, been given by the national assembly, not to constitute themselves into a sovereignty, but only to administer the affairs of the sovereign for the time, and after this was done to deliver the reins of the government again into the monarch's hands.
Such a supposed contract would be null and void.The right of the supreme legislation in the commonwealth is not an alienable right, but is the most personal of all rights.Whoever possesses it can only dispose by the collective will of the people, in respect of the people; he cannot dispose in respect of the collective will itself, which is the ultimate foundation of all public contracts.Acontract, by which the people would be bound to give back their authority again, would not be consistent with their position as a legislative power, and yet it would be made binding upon the people;which, on the principle that "No one can serve two masters," is a contradiction.
II.The Right of Nations and International Law.
(Jus Gentium).
53.Nature and Division of the Right of Nations.
The individuals, who make up a people, may be regarded as natives of the country sprung by natural descent from a common ancestry (congeniti), although this may not hold entirely true in detail.
Again, they may be viewed according to the intellectual and juridical relation, as born of a common political mother, the republic, so that they constitute, as it were, a public family or nation (gens, natio) whose members are all related to each other as citizens of the state.As members of a state, they do not mix with those who live beside them in the state of nature, considering such to be ignoble.Yet these savages, on account of the lawless freedom they have chosen, regard themselves as superior to civilized peoples; and they constitute tribes and even races, but not states.
The public right of states (jus publicum civitatum), in their relations to one another, is what we have to consider under the designation of the "right of nations." Wherever a state, viewed as a moral person, acts in relation to another existing in the condition of natural freedom, and consequently in a state of continual war, such right takes it rise.
The right of nations in relation to the state of war may be divided into: 1.the right of going to war; 2.right during war; and 3.right after war, the object of which is to constrain the nations mutually to pass from this state of war and to found a common constitution establishing perpetual peace.The difference between the right of individual men or families as related to each other in the state of nature, and the right of the nations among themselves, consists in this, that in the right of nations we have to consider not merely a relation of one state to another as a whole, but also the relation of the individual persons in one state to the individuals of another state, as well as to that state as a whole.This difference, however, between the right of nations and the right of individuals in the mere state of nature, requires to be determined by elements which can easily be deduced from the conception of the latter.
54.Elements of the Right of Nations.
The elements of the right of nations are as follows:
1.States, viewed as nations, in their external relations to one another- like lawless savages- are naturally in a non-juridical condition;2.This natural condition is a state of war in which the right of the stronger prevails; and although it may not in fact be always found as a state of actual war and incessant hostility, and although no real wrong is done to any one therein, yet the condition is wrong in itself in the highest degree, and the nations which form states contiguous to each other are bound mutually to pass out of it;3.An alliance of nations, in accordance with the idea of an original social contract, is necessary to protect each other against external aggression and attack, but not involving interference with their several internal difficulties and disputes;4.This mutual connection by alliance must dispense with a distinct sovereign power, such as is set up in the civil constitution;it can only take the form of a federation, which as such may be revoked on any occasion, and must consequently be renewed from time to time.
This is therefore a right which comes in as an accessory (in subsidium) of another original right, in order to prevent the nations from falling from right and lapsing into the state of actual war with each other.It thus issues in the idea of a foedus amphictyonum.
55.Right of Going to War as related to the Subjects of the State.
