第 31 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  in the state; being constituted by the relation of one; as king; to
  the people; so that there is one only who is the lawgiver。 An
  aristocracy; as a form of government; is; however; compounded of the
  union of two relations: that of the nobles in relation to one
  another as the lawgivers; thereby constituting the sovereignty; and
  that of this sovereign power to the people。 A democracy; again; is the
  most complex of all the forms of the state; for it has to begin by
  uniting the will of all so as to form a people; and then it has to
  appoint a sovereign over this common union; which sovereign is no
  other than the united will itself。 The consideration of the ways in
  which these forms are adulterated by the intrusion of violent and
  illegitimate usurpers of power; as in oligarchy and ochlocracy; as
  well as the discussion of the so called mixed constitutions; may be
  passed over here as not essential; and as leading into too much
  detail。
  As regards the administration of right in the state; it may be
  said that the simplest mode is also the best; but as regards its
  bearing on right itself; it is also the most dangerous for the people;
  in view of the despotism to which simplicity of administration so
  naturally gives rise。 It is undoubtedly a rational maxim to aim at
  simplification in the machinery which is to unite the people under
  compulsory laws; and this would be secured were all the people to be
  passive and to obey only one person over them; but the method would
  not give subjects who were also citizens of the state。 It is sometimes
  said that the people should be satisfied with the reflection that
  monarchy; regarded as an autocracy; is the best political
  constitution; if the monarch is good; that is; if be has the judgement
  as well as the will to do right。 But this is a mere evasion and
  belongs to the common class of wise tautological phrases。 It only
  amounts to saying that 〃the best constitution is that by which the
  supreme administrator of the state is made the best ruler〃; that is;
  that the best constitution is the best!
  52。 Historical Origin and Changes。
  A Pure Republic。 Representative Government。
  It is vain to inquire into the historical origin of the political
  mechanism; for it is no longer possible to discover historically the
  point of time at which civil society took its beginning。 Savages do
  not draw up a documentary record of their having submitted
  themselves to law; and it may be inferred from the nature of
  uncivilized men that they must have set out from a state of
  violence。 To prosecute such an inquiry in the intention of finding a
  pretext for altering the existing constitution by violence is no
  less than penal。 For such a mode of alteration would amount to
  revolution; that could only be carried out by an insurrection of the
  people; and
  not by constitutional modes of legislation。 But insurrection against
  an already existing constitution; is an overthrow of all civil and
  juridical relations; and of right generally; and hence it is not a
  mere alteration of the civil constitution; but a dissolution of it。 It
  would thus form a mode of transition to a better constitution by
  palingenesis and not by mere metamorphosis; and it would require a new
  social contract; upon which the former original contract; as then
  annulled; would have no influence。
  It must; however; be possible for the sovereign to change the
  existing constitution; if it is not actually consistent with the
  idea of the original contract。 In doing so it is essential to give
  existence to that form of government which will properly constitute
  the people into a state。 Such a change cannot be made by the state
  deliberately altering its constitution from one of the three forms
  to one of the other two。 For example; political changes should not
  be carried out by the aristocrats combining to subject themselves to
  an autocracy; or resolving to fuse all into a democracy; or
  conversely; as if it depended on the arbitrary choice and liking of
  the sovereign what constitution he may impose on the people。 For; even
  if as sovereign he resolved to alter the constitution into a
  democracy; he might be doing wrong to the people; because they might
  hold such a constitution in abhorrence; and regard either of the other
  two as more suitable to them in the circumstances。
  The forms of the state are only the letter (littera) of the original
  constitution in the civil union; and they may therefore remain so long
  as they are considered; from ancient and long habit (and therefore
  only subjectively); to be necessary to the machinery of the
  political constitution。 But the spirit of that original contract
  (anima pacti originarii) contains and imposes the obligation on the
  constituting power to make the mode of the government conformable to
  its idea; and; if this cannot be effected at once; to change it
  gradually and continuously till it harmonize in its working with the
  only rightful constitution; which is that of a pure republic。 Thus the
  old empirical and statutory forms; which serve only to effect the
  political subjection of the people; will be resolved into the original
  and rational forms which alone take freedom as their principle; and
  even as the condition of all compulsion and constraint。 Compulsion
  is in fact requisite for the realization of a juridical
  constitution; according to the proper idea of the state; and it will
  lead at last to the realization of that idea; even according to the
  letter。 This is the only enduring political constitution; as in it the
  law is itself sovereign; and is no longer attached to a particular
  person。 This is the ultimate end of all public right; and the state in
  which every citizen can have what is his own peremptorily assigned
  to him。 But so long as the form of the state has to be represented;
  according to the letter; by many different moral persons invested with
  the supreme power; there can only be a provisory internal right; and
  not an absolutely juridical state of civil society。
  Every true republic is and can only be constituted by a
  representative system of the people。 Such a representative system is
  instituted in name of the people; and is constituted by all the
  citizens being united together; in order; by means of their
  deputies; to protect and secure their rights。 But as soon as a supreme
  head of the state in person… be it as king; or nobility; or the
  whole body of the people in a democratic union… becomes also
  representative; the united people then does not merely represent the
  sovereignty; but they are themselves sovereign。 It is in the people
  that the supreme power originally resides; and it is accordingly
  from this power that all the rights of individual citizens as mere
  subjects; and especially as officials of the state; must be derived。
  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。 A
  contract; 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 t