The prince derives his authority from the nation; he possesses just so much of it as they have thought proper to intrust him with.* If the nation has plainly and simply invested him with the sovereignty without limitation or division, he is supposed to be invested with all the prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called regal prerogatives, or the prerogatives of majesty.
§46. The prince ought to respect and support the fundamental laws.
But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws shew the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labour for the attainment of happiness: the execution is intrusted to the prince. Let him religiously follow this plan,—let him consider the fundamental laws as inviolable and sacred rules,—and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws:—and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?* <16>
§47. He may change the laws not fundamental.
If the prince be invested with the legislative power, he may, according to his wisdom, and when the public advantage requires it, abolish those laws that are not fundamental, and make new ones. See what we have said on this subject in the preceding chapter, §34.
§48. He ought to maintain and observe the existing laws.
But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquillity, and the firmest support of the sovereign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws. He ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV.11 one of the most absolute princes that ever reigned in Europe. “Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states.”*
§49. In what sense he is subject to the laws.
But it is necessary to explain this submission of the prince to the laws. First he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, “in his private affairs”; for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. <17> Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws. The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.
§50. His person is sacred and inviolable.
It is not sufficient that the prince be above the penal laws: even the interest of nations requires that we should go something farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defence. It is impossible even for the most just and wise monarch, not to make mal-contents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people.* Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.†
§51. But the nation may curb a tyrant, and withdraw itself from his obedience.
But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank), and withdraw itself from his obedience. To this indisputable right a <18> powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the house of Orange; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right, and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him: the people become free by the act of the sovereign, and can no longer view him but as an usurper who would load them with oppression. This truth is acknowledged by every sensible writer, whose pen is not enslaved by fear, or sold for hire. But some celebrated authors maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him, much less to curb him, and that nought remains for the nation but to suffer and obey with patience. This is founded upon the supposition that such a sovereign is not accountable to any person for the manner in which he governs, and that if the nation might controul his actions and resist him, where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose,—that, if he abuses it, he does ill indeed, and wounds his conscience,—but that his commands are not the less obligatory, as being founded on a lawful right to command,—