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chapter 18: On the Constitution of Civil Government 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On the Constitution of Civil Government1
The celebrated Locke (Second Treatise of Government, ch. 12)2 neatly reduces all the parts of sovereign power to three: legislative (as it is commonly, though improperly, called),3executive, and federative. It belongs to the legislative power not only to command what is to be done and not done, but also to say what penalty is to be inflicted on him who omits the one or does the other. Pufendorf explicates the executive power and the judicial power which facilitates its exercise, and finally discusses the federative power. Also the power of making magistrates and ministers (of which Pufendorf gives an independent account) belongs either to the executive or to the federative powers, according as the subordinate acts of the one or the other are entrusted to such magistrates or ministers. As for the power of raising revenue, one could easily refer their imposition to the legislative, the actual collection to the executive. Finally, it is obvious that both of these powers are concerned with doctrine.
It is also easily shown that all these divisions of the supreme power are derived from the consenting will of the subjects. For civil power, by commanding and prohibiting, by imposing fines or handing down sentences, or, finally, by making treaties with foreign powers, obliges the citizens to do, omit, or suffer what, in the state of nature, it would be in their own power to do, omit, or prevent. Manifestly therefore civil power is founded in the consent of those against whom it is exercised. A man’s right of disposing of his actions and therefore of his property so far as that depends on his actions, is called freedom (libertas) while he remains in the state of nature; this same right becomes government (imperium) when it is transferred, with each man’s consent, as the end of civil society requires, to a sovereign. On the other hand when civil power defends the rights of citizens against their fellow citizens or against foreigners, it acts with the consent of those for whose benefit it is exercised. For civil power is in fact nothing but the right which belonged to individuals in the state of nature to claim what was their own or what was due to them, and which has been conferred upon the same ruler for the sake of civil peace. In this category belongs the power of inflicting corporal punishment on the guilty, except that since this power belongs naturally to all men, it ought not to be said to be conferred upon the sovereign power, so much as restricted to him, while the rest of the citizens forbid themselves its use. [II.7.1.i]
The power of establishing universities and supporting them with laws and adorning them with privileges is a power which political writers usually include among the lesser rights of majesty (the greater rights are the essential parts of sovereign power described above). This authority naturally comes under the executive power, as do most of the other so-called lesser rights of majesty, where they exist: such as the power of conferring dignities, of coining money, of granting fairs and holidays, of legitimating children, of restoring reputation, of granting the pardon of age, of remitting the customary penalties of the laws, of granting forgiveness to debtors, etc. Some of these rights can be conceded to subordinate magistrates; some can be omitted altogether, without damage to the state or to civil government. And other rights of this kind, such as the acquisition of forfeits for the treasury, the occupation of unowned objects to the exclusion of other people, and so on, are not so much parts of the sovereign power as rights of convenience, which are conceded to the sovereign power, by the laws of many states, to maintain its dignity.
If Pufendorf’s teaching in this section is understood to apply to doctors of the church, it leads to the vexed question of the right of the sovereign power in sacred matters. Whether this right provides for the regulation of the form of worship favored by the laws of the state, or for the suppression or toleration of those who dissent from it, is a question which in both respects requires a deep and careful investigation which the plan of our course does not allow us even to broach here.4 [II.7.8.i]
One can scarcely avoid acknowledging, for the reasons given by Pufendorf,5 that the operations of the state will be awkward and poorly coordinated if the various parts of the sovereign power are vested in quite different offices. But there is nothing difficult about the prince or senate exercising alone some parts of the supreme power, such as the executive and federative powers, while the other power, the legislative, can act only with the consent of the various orders of the state. See below, pp. 169–72. [II.7.9.i]
The forms of government
[Pufendorf distinguished between regular governments and irregular governments. In the former, government was united in a single will; in the latter, government was distributed or divided in such a way that no single body or institution exercised sovereign power. He also described systems of states, where different sovereign states were united under a common king or by a treaty.]
[A regular government locates the sovereign power in one body], that is in one man or in one assembly of men, united in the exercise of government. [II.8.2.i]
[There are three forms of regular government: monarchy, where the sovereign power is vested in one man; aristocracy, where it is exercised by a council of select citizens; thirdly, democracy, where it is housed in an assembly composed of all the fathers of families. Carmichael observes:]
The noblest example of the [aristocratic] form [of government] furnished by the ancient world was the Lacedaemonian. In the modern world it is provided by the Venetian Republic. The discussion here is about simple governments [not systems of states]. [II.8.3.i]
The [democratic] form of government was most conspicuous in the ancient Athenian republic. The Roman republic is referred to below, in section 12 [II.8.12.1]. The examples [of democracy] which exist today are found mainly in minor states especially among the Germans. In these states also the people are rarely convened; most business is entrusted to the Senate and the Magistrates, who exercise power, albeit dependently. The government of the individual provinces of the Netherlands is not democratic, as is attested by their own jurists. [II.8.3.ii]
An example of an irregular government is the Roman Republic, as described by Pufendorf in a Select Dissertation entitled On the Form of the Roman Republic. [II.8.12.i]
An example of another kind of irregular government [where the nobility have so increased their power that they have become unequal partners of the king] is provided by Pufendorf in his treatise On the State of the German Empire, published under the pseudonym of Severinus de Monzambano.6 He justifies the interpretation [of the German Empire] which he gives there in a Select Dissertation entitled On Irregular Governments.7 Titius however contends that the Empire is not a simple government but a system [of states] albeit irregular. [II.8.12.ii]
See also Pufendorf’s dissertation, On Systems of States.8 [II.8.13.i]
The British kingdoms furnished Pufendorf with an example of [a system of states united under a common king] when he was writing the Select Dissertation cited above. But for a system to be formed by a common king, it is necessary for the king to have free exercise of the power of war and peace, so that he may use the forces of either kingdom to defend and promote the rights of the other. However if the king can exercise all parts of the sovereign power at his own discretion, it is easy for a system of that kind to degenerate into a single kingdom. [II.8.14.i]
We have examples of this kind [of systems of states, united by treaty] before us in the federated Belgic provinces and in the federated cantons of the Swiss. [II.8.15.1]
[1.] From the notes to bk. II, ch. 7, “On the Functions of the Sovereign Power”; and bk. II, ch. 8, “On the Forms of Government.”
[2.] Carmichael interpreted Locke’s presentation in chapter 12 of the Second Treatise of Government in the way he read other chapters of the Second Treatise, as a commentary on Pufendorf’s jurisprudence. Pufendorf had distinguished seven ways in which the sovereign powers of government may be exercised: they were powers of legislation; of vindication (or execution); of the judiciary; of making war and peace (federative power); of appointing magistrates; of levying taxes and of examining doctrines (Of the Law of Nature and Nations, VII.IV.1–8). Carmichael demonstrates how these seven ways of exercising the powers of civil government may be reduced to the three powers specified by Locke.
[3.] See p. 45, above, where Carmichael insists that the legislators of ancient Greece and Rome were so called only because they were the authors of laws which derived their legitimacy from the votes or enactments of the people.
[4.] It is remarkable that Carmichael should have chosen to say nothing at all about the government of the church in his writings. The orthodox position of the Reformed theologians and of the Westminster Confession of Faith, which Carmichael had sworn to uphold as a condition of appointment to the University of Glasgow, was that civil governments have the duty to enforce the doctrines of the established church (i.e., the Presbyterian Church of Scotland). Carmichael’s silence on this subject may indicate some sympathy with the more tolerant position taken by Locke, whose political ideas he endorsed, albeit in his own manner.
[5.] See Of the Law of Nature and Nations, VII.IV.10.
[6.] Severinus de Monzambano [Pufendorf], De Statu Imperii Germanici.
[7.] Pufendorf, “De republica irregulari.”
[8.] Pufendorf, “De systematibus civitatum.” It was Pufendorf’s view that the government of the German empire ought to be reconstituted as a system of states; in its unamended form, he considered it a monstrosity. See Moore and Silverthorne, “Protestant Theologies,” pp. 178–84.