Essay on the Generative Principle of Political Constitutions

Front matter

I — II — III — IV — V — VI — VII — VIII — IX — X — XI — XII — XIII — XIV — XV — XVI — XVII — XVIII — XIX — XX — XXI — XXII — XXIII — XXIV — XXV — XXVI — XXVII — XXVIII — XXIX — XXX — XXXI — XXXII — XXXIII — XXXIV — XXXV — XXXVI — XXXVII — XXXVIII — XXXIX — XL — XLI — XLII — XLIII — XLIV — XLV — XLVI — XLVII — XLVIII — XLIX — L — LI — LII — LIII — LIV — LV — LVI — LVII — LVIII — LIX — LX — LXI — LXII — LXIII — LXIV — LXV — LXVI — LXVII

FILII HOMINUM USQUEQUO GRAVI CORDE? UT QUID DILIGITIS VANITATEM, ET QUÆRITIS MENDACIUM. Ps. iv. 3.

Notice by the translator

It has been frequently noticed as a uniform tendency of the sciences of the last period, to limit or exclude the Divine agency, in the several departments to which they relate. This tendency has been no less obvious in political, than in physical science. In the political theories of the last century, the origin of Civil Institutions has been uniformly traced to some social compact, or some other act, more or less deliberate, of merely human arrangement, to the exclusion of the Divine agency. It is in this error, so repugnant to the religious spirit, though sanctioned by the highest names in modern political science, so fraught with pernicious consequences, though seemingly a harmless speculation, which it is the object of this Essay to expose. The great name of the Author is a sufficient pledge of the ability of the work. The extent and variety of learning displayed in it, the depth of its political reflections, the light cast by it upon very many associated topics of the greatest importance, the eloquence to which it rises in occasional passages, and the tone of moral earnestness by which the whole is pervaded, cannot fail to be acknowledged, even by those who may not be convinced by its arguments.

In transferring to our language, a work of such a nature, the Translator has felt bound to do what he could to represent the exact meaning of the Author with the utmost fidelity, even when it might be necessary, in so doing, to sacrifice something of beauty or harmony of style. He has added a few notes, always included in brackets, designed to explain and illustrate such historical allusions, and other matters of the text, as might not, in themselves, be sufficiently intelligible.

The work is submitted to the candour of the thoughtful reader, in the hope that it may lead to a more just recognition of the Hand of God in the History of the World.

Boston, June 12, 1847.

Preface

Political Science, which is, perhaps, the most thorny of all sciences, by reason of the difficulty perpetually arising, of discerning what is stable or changeable in its elements, presents a very strange phenomenon, well calculated to make every wise man, called to the administration of states, to tremble; it is this, that whatever good sense perceives, at first view, in this science, as an evident truth, is almost always found, when experience has spoken, not only false, but pernicious.

To begin at the foundation. If we had never heard governments spoken of, and men were called upon to deliberate, for example, on hereditary or elective monarchy, we should justly regard one who should decide for the former, as a madman: the arguments against it appear so naturally to reason, that it is useless to repeat them. History, however, which is experimental politics, demonstrates, that an hereditary monarchy is the government which is the most stable, the happiest, and most natural to man; and an elective monarchy, on the contrary, is the worst form of government known.

With respect to population, commerce, prohibitive laws, and a thousand other important subjects, the most plausible theory is almost always found to be contradicted and annulled by experience. Let us cite a few examples.

What method must be adopted to render a state powerful? “It is necessary, first of all, to favour population by every possible means.” On the contrary, every law, tending directly to favour population, without regard to other considerations, is bad. It is even necessary, to endeavour to establish in the state a certain moral power, tending to diminish the number of marriages, and to render them less hasty. The proportion of births over deaths, as ascertained by tables, only proves, ordinarily, the number of the wretched. Etc., etc. French economists had sketched the demonstration of these truths: the excellent work of Malthus has completed it.

How shall scarcity and famine be prevented? “Nothing is more simple. It is necessary to prohibit the exportation of grains.” On the contrary, a premium must be allowed to those who export them. The example and authority of England have constrained us to swallow this paradox.

How shall exchange be maintained in favour of a particular country? “It is unquestionably necessary to prevent the specie from going out of it, and consequently to see to it, by severe prohibitory laws, that the state buys no more than it sells.” On the contrary, these means have never been employed without lowering the exchange, or, what amounts to the same thing, without augmenting the indebtedness of the nation; and never can the opposite course be taken without raising it, that is to say, without making it evident that the credit of the nation over its neighbours is increased. Etc., etc.

But the observation we are now considering recurs most frequently in that which is most substantial and fundamental in politics; I mean in the very constitution of empires. It is said that the German philosophers have invented the word Metapolitics to be to Politics, what Metaphysics is to Physics. This new term appears to be very happily invented to express the Metaphysics of Politics, for there is such a thing; and this science deserves the profound attention of observers.

An anonymous writer who has been much occupied with speculations of this nature, and who has endeavored to fathom the hidden foundations of the social edifice, believed himself to be in the right when, nearly twenty years ago, he advanced, as so many incontestible axioms, the following propositions, diametrically opposed to the theories of that time.

No constitution results from deliberation; the rights of the people are never written, or never except as simple declarations of pre-existing rights not written, of which nothing more can be said, than that they exist because they exist.

Human action in such cases is so far circumscribed, that the men who act are only circumstances. [God not having judged it proper to employ in this matter supernatural means, at least circumscribes human action to such a degree, that circumstances do all. It is even very common that in pursuing a certain end they obtain another, as appears in the English constitution.]

The rights of the people, properly so called, proceed almost always from the concessions of sovereigns, and then it is possible to trace them historically; but the rights of the sovereign and of the aristocracy, [at least the essential, constitutive and radical rights, if it is permissible to express one’s self thus,] have neither date nor known authors.

These concessions themselves have always been preceded by a state of things which rendered them necessary, and which did not depend upon the sovereign.

Although written laws are only the declarations of pre-existing rights, yet it does not follow that all these rights can be written. [There is always in every constitution, something which cannot be written, and which must be left in a dark and venerable cloud, under pain of overturning the state.]

The more is written, the weaker the constitution. [The reason is obvious. Laws are only declarations of rights, and rights are only declared when they are attacked; so that the multiplicity of written constitutional laws, only evinces the number of shocks and the dangers of destruction. The most vigorous and flourishing institution of profane antiquity was that of Lacedæmon, where nothing was written.]

No nation can give liberty to itself, if it has it not. [When a nation begins to reflect upon itself, its laws are already made.] Human influence does not extend beyond the development of existing rights [but which were unacknowledged or disputed. If the imprudent overleap these limits by rash reforms, the nation loses what it had, without attaining what it wishes. Hence results the necessity of innovating only very rarely, and always with moderation and trembling.]

Lawgivers, strictly speaking, are extraordinary men, belonging perhaps only to the ancient world and to the youth of nations. [When Providence has decreed the more rapid formation of a political constitution, there appears a man clothed with an indefinable power; he speaks, and he makes himself to be obeyed. These lawgivers par excellence possess one distinctive characteristic: they are kings, or eminently noble; in this point, there is and can be no exception. It was on this account that the institution of Solon, the most frail of antiquity, failed. The flourishing days of Athens, which did not continue long, were all the while interrupted by conquests and tyrannies; and Solon even saw the Pisistratidæ.

These lawgivers even, notwithstanding their wonderful power, have only collected the pre-existing elements, [elements which existed in the customs and character of the people,] and have always acted in the name of the Divinity.

Liberty, in a sense, is the gift of kings; for all nations were constituted free by kings. [This is the general rule, and the exceptions that might be indicated, would enter into the rule, if they were discussed.

There never has existed a free nation which had not, in its natural constitution, germs of liberty as old as itself; and no nation has ever successfully attempted to develope, by its fundamental written laws, other rights than those which existed in its natural constitution.

No assembly of men can give existence to a nation. An attempt of this kind ought even to be ranked among the most memorable acts of folly [exceeding in folly what all the Bedlams of the world might produce most absurd and extravagant.]

It does not appear that, since the year 1796, the date of the first edition of the work we quote, there has anything passed in the world to induce the author to abandon his theory. We believe on the contrary, that it may be useful at this moment to develope the theory fully, and to trace it to its ultimate results; the most important of which is, doubtless, the one that is found announced in these terms, in the tenth chapter of the same work, viz.:

“Man cannot create a sovereign. At the utmost, he may be the instrument in dethroning the sovereign, and delivering his kingdom to another sovereign already royal . . . [and even the manner in which human power is employed in these circumstances, is well fitted to humble it. It is here especially that we may address to man these words of J. J. Rousseau; montre-moi ta puissance je te montrerai ta faiblesse] . . . Moreover there never has existed a royal family to whom a plebeian origin could be assigned. If such a phenomenon should appear, it would create an era in the world.”

With respect to this proposition we may reflect, that the divine judgment has just now sanctioned it in a manner sufficiently solemn. But who knows whether the ignorant levity of our age will not seriously say, if he had willed it, he would still be in his place! just as is now repeated after two centuries; if Richard Cromwell had possessed the genius of his father, he would have fixed the protectorate in his family; which is precisely the same as to say, if this family had not ceased to reign, it would reign still.

It is written, By me kings reign. This is not a phrase of the church, a metaphor of the preacher; it is a literal truth, simple and palpable. It is a law of the political world. God makes kings in the literal sense. He prepares royal races; maturing them under a cloud which conceals their origin. They appear at length crowned with glory and honour; they take their places; and this is the most certain sign of their legitimacy.

The truth is, that they arise as it were of themselves, without violence on the one part, and without marked deliberation on the other: it is a species of magnificent tranquillity, not easy to express. Legitimate usurpation would seem to me to be the most appropriate expression, (if not too bold,) to characterize these kinds of origins, which time hastens to consecrate.

Let no one, then, permit himself to be dazzled by the most splendid human appearances. Who has ever concentrated in himself more of them than the extraordinary personage whose fall still resounds throughout Europe? Has there ever been a sovereignty outwardly so well fortified, a greater consolidation of means, a man more powerful, more active, more formidable? For a long time we saw him trample under foot twenty nations silent and frozen with dread; and his power at length had struck certain roots which might have led even hope to despair. Yet he is fallen, and so low, that Pity while contemplating him, draws back for fear of being touched by him. We may observe, moreover, is passing, that for a reason somewhat different, it has become equally difficult to speak of this man, and of his august rival who has rid the world of him. The one escapes insult, and the other praise. But to return.

In a work known only to a few persons at St. Petersburgh, the author wrote in the year 1810, “If, when two parties encounter each other in a revolution, on one side precious victims are seen to fall, we may rest assured that this party will triumph at last, notwithstanding all appearances to the contrary.”

The truth of this assertion has also just been verified in a manner the most striking, and the least expected. The moral order has its laws as well as the physical, and the investigation of these laws is altogether worthy of occupying the meditations of a true philosopher. After an entire age of criminal trifling, it is high time to recall to mind what we are, and to trace all knowledge back to its source. It is this that has induced the author of this little work to permit it to escape from the timid portfolio which has retained it for five years. He permits the date of it to stand, and gives it to the world, word for word, just as it was written at that time. Friendship has called forth this publication, which perhaps is so much the worse for the author; for this good dame is, on certain occasions, as blind as her brother. Be this as it may, the mind which has dictated the work enjoys a privilege well understood; he may doubtless be mistaken sometimes on indifferent points; he may exaggerate, or speak too confidently; he may, in fine, offend against language or taste; and in this case, so much the better for the evil disposed, if perchance there be any such: but there will always be left to him the well founded hope of not displeasing any one, since he loves all the world; and, moreover, he will enjoy the perfect assurance of interesting a numerous and very estimable class of men, without the possibility of injuring a single person!—a confidence altogether tranquilizing.

Essay on the Generative Principle of Political Constitutions, etc., etc.

I

One of the grand errors of an age, which professed them all, was, to believe that a political constitution could be written and created à priori; whilst reason and experience unite in establishing, that a constitution is a Divine work, and that that which is most fundamental, and most essentially constitutional, in the laws of a nation, is precisely what cannot be written.

II

It has been often supposed to be an excellent piece of pleasantry upon Frenchmen, to ask them in what book the Salic law was written? But Jérôme Bignon answered, very apropos, and probably without knowing the full truth of what he said, that it was written in the hearts of Frenchmen. Let us suppose, in effect, that a law of so much importance existed only because it was written; it is certain that any authority whatsoever which may have written it, will have the right of annulling it; the law will not then have that character of sacredness and immutability which distinguishes laws truly constitutional. The essence of a fundamental law, is, that no one has the right to abolish it: now, how can it be above all, if any one has made it? The agreement of the people is impossible; and even if it should be otherwise, a compact is not a law, and binds nobody, unless there is a superior authority by which it is guarantied. Locke endeavours to discover the characteristic feature of law in the expression of united wills; but has thus happened to hit upon the characteristic which exactly excludes the idea of law. In fact, united wills form the regulation, and not the law, which manifestly and necessarily supposes a superior will that makes itself to be obeyed. “In the system of Hobbes,” (the same that has had such currency in our day, under the pen of Locke,) “the force of civil laws reposes only upon a convention; but if there is no natural law which requires the execution of laws that are made, of what use are they? Promises, engagements, oaths, are mere words: it is as easy to break this frivolous bond as to form it. Without the doctrine of a Divine Lawgiver, all moral obligation is chimerical. Power on one side, weakness on the other, constitutes the whole bond of human societies.”

What a wise and profound theologian has here said on moral obligation, applies with equal truth to political or civil obligation. Law is not properly law, nor does it possess the true sanction of law, unless it emanates from a superior will; so that its essential character is, that it is not the will of all: otherwise laws, as we have just remarked, will be only regulations; and, as the author just cited further observes: “Those who have had the liberty of making these conventions have not taken away from themselves the power of revoking them; and their descendants, who had no part in making them, are still less bound to observe them.”

Hence it is that the good sense of antiquity, happily anterior to sophisms, has sought, on every side, the sanction of laws, in a power above man, either in recognizing that sovereignty comes from God, or in revering certain unwritten laws as proceeding from him.

III

The compilers of the Roman laws have placed, unpretendingly, in the first chapter of their collection, a very remarkable fragment of Greek jurisprudence. Among the laws which govern us, says this passage, some are written, others are unwritten. Nothing can be more simple or profound. Is there any Turkish law which expressly permits the sovereign to pass sentence of death upon a man immediately, without the decision of an intermediate tribunal? Are we acquainted with any written law, even religious, which prohibits the sovereigns of Christian Europe from doing this? Yet the Turk is no more surprised at seeing his master pass sentence of immediate death upon a man, than at seeing him go to the Mosque. He believes with all Asia, and even with all antiquity, that the right to inflict death immediately, is a legitimate appendage of the sovereignty. But our Princes would tremble at the bare idea of condemning a man to death; for, according to our view, this condemnation would be an atrocious murder. And yet, I doubt whether it would be possible to prohibit them from doing this by a fundamental written law, without producing greater evils than those we might wish to prevent.

IV

Ask Roman history what was precisely the power of the Senate: she is silent, at least as to the exact limits of that power. We see, indeed, in general, that the power of the people and that of the Senate mutually balanced each other, and that the opposition was unceasing; we observe also that patriotism or weariness, weakness or violence, terminated these dangerous struggles: but we know no more about it. In looking upon these grand historical scenes, we are sometimes tempted to believe that affairs would have gone much better, if there had been special laws defining these powers; but this would have been a great errour: such laws, always being compromitted by unexpected cases and forced exceptions, would not have lasted six months, or they would have overturned the Republic.

V

The English Constitution is an example nearer to us, and, therefore, more striking. Whoever examines it with attention, will see that it goes only in not going (if this play upon words is permissible.) It is maintained only by the exceptions. The habeas corpus, for example, has been so often and for so long time suspended, that it is doubted whether the exception has not become the rule. Suppose for a moment that the authors of this famous act had undertaken to fix the cases in which it should be suspended; they would ipso facto have annihilated it.

VI

At the sitting of the House of Commons, June 26, 1807, a lord cited the authority of a great statesman to show that the King had no right to dissolve Parliament during the session; but this opinion was contradicted: Where is the law? Attempt to make a law, and to fix exclusively by writing the case where the King has this right, and you will produce a revolution. The King, said one of the members, has this right when the occasion is important; but what is an important occasion? Try to decide this too by writing.

VI

But, there is another fact still more singular. All the world remember the great question agitated, with so much earnestness, in England, in the year 1806. The question was, whether the holding of a judicial employment, together with a place as member of the Privy Council, was or was not in accordance with the principles of the English Constitution? At the sitting of the same House of Commons, on the third of March, a member observed: England is governed by a body (the Privy Council) not known by Legislature. Only, he added, it is connived at.

There is, then, in this wise and justly famous England, a body, which governs, and in truth does everything, but which the Constitution does not recognize. Delolme has overlooked this feature, which I could corroborate by many others.

After this can any one talk to us about written constitutions and constitutional laws made à priori. We cannot conceive how a sensible man could imagine the possibility of such a chimera. If any one should undertake to make a law in England, in order to give a constitutional existence to the Privy Council, and subsequently to regulate and rigorously circumscribe its privileges and attributes, with the precautions necessary for limiting its influence and preventing its abuse, he would overturn the State.

The true English Constitution is that admirable, unique, and infallible public spirit, beyond all praise, which guides every thing, preserves every thing, saves every thing. That which is written is nothing.

VIII

Towards the end of the last century, a great outcry was made against a Minister, who had conceived the project of introducing this same English Constitution (or what was called by that name) into a kingdom which was convulsed, and which demanded a constitution of some kind, with a sort of frenzy.

He was wrong, if you please, so far at least as one can be wrong when he acts in good faith; which he may well be presumed, and which I believe with all my heart. But who at that time had the right of condemning him? Vel duo, vel nemo. He did not declare that he desired to destroy any thing of his own accord; he merely wished, he said, to substitute one thing which appeared to him reasonable, for another which had ceased to be wanted, and which, for that very reason, no longer existed. And besides, if the principle is granted, (and it was in effect,) that man can create a constitution, this Minister (who was certainly a man) had the same right to make his own as well as another, and more than another. Were the doctrines on this point doubted? Was it not believed, on all sides, that a constitution was the work of intelligence, like an ode or tragedy? Had not Thomas Paine declared, with a profoundness that charmed the Universities, that a constitution does not exist, so long as one cannot put it into his pocket? The eighteenth century, which distrusted itself in nothing, as a matter of course, hesitated at nothing; and I do not believe that it has produced a single tyro of any talent, who has not made three things on leaving college,—a system of education for youth, a Constitution, and a World. If, then, a man in the maturity of his age and talent, profoundly versed in economical science and in the philosophy of the time, had attempted only the second of these things, I should then have regarded him as exceedingly moderate; but I confess that he appears to me a real prodigy of wisdom and modesty, when I see him, substituting (at least as he believes) experience for foolish theories, ask respectfully of the English a constitution, instead of making one himself. You say, even this was not possible. I know it: but he did not, and how could he have known it? Name to me the man who had advanced this opinion.

IX

The more we examine the influence of human agency in the formation of political constitutions, the greater will be our conviction that it enters there only in a manner infinitely subordinate, or as a simple instrument; and I do not believe there remains the least doubt of the incontestable truth of the following propositions:—

That the fundamental principles of political constitutions exist before all written law.

That a constitutional law is, and can only be, the developement or sanction of an unwritten pre-existing right.

That which is most essential, most intrinsically constitutional, and truly fundamental, is never written, and could not be, without endangering the state.

That the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles.

X

We are deceived on this point by a sophism so natural, that it entirely escapes our attention. Because man acts, he thinks he acts alone; and because he has the consciousness of his liberty, he forgets his dependence. In the physical order, he listens to reason; for although he can, for example, plant an acorn, water it, etc., he is convinced that he does not make the oaks, because he witnesses their growth and perfection without the aid of human power; and moreover, that he does not make the acorn: but in the social order, where he is present, and acts, he fully believes that he is really the sole author of all that is done by himself. This is, in a sense, as if the trowel should believe itself the architect. Man is a free, intelligent, and noble being: without doubt; but he is not less an instrument of God, according to a happy expression of Plutarch, in a beautiful passage which here introduces itself of its own accord:

We must not wonder, he says, if the most beautiful and greatest things in the world are done by the will and providence of God; seeing that in all the greatest and principal parts of the world there is a soul: for the organ and tool of the soul is the body, and the soul is the instrument of God. And as the body has of itself many movements, and as the greater and more noble are derived from the soul, even so it is with the soul; some of its operations being self-moved, while in others it is directed, disciplined, and guided, by God, as it pleases Him; being itself the most beautiful organ and ingenious instrument possible: for it would be a strange thing indeed that the wind, the water, the clouds, and the rains, should be instruments of God, with which He nourishes and supports many creatures, and also destroys many others, and that He should never make use of living beings to perform any of His works. For it is far more reasonable that they, depending entirely on the power of God, should obey His direction, and accomplish all His will, than that the bow should obey the Scythians, the lyre and flute the Greeks.

No one could write better: and I do not believe that these beautiful reflections could be more justly applied, than to the formation of political constitutions, where it may be said, with equal truth, that man does every thing, and does nothing.

XI

If there is any thing well known, it is the comparison of Cicero, on the subject of the Epicurean system, which proposed to build a world with atoms falling at random in space. I would rather believe, says the great Orator, that letters, thrown into the air, would, on falling, arrange themselves in such a manner as to form a poem. A thousand voices have repeated and commended this thought; yet, so far as I known it, it has not occurred to any person to give it the completeness which it warrants. Let us suppose that printed characters, scattered plentifully in the air, should, on coming, to the ground form the Athalie of Racine; what would be the inference? That an intelligence had directed the fall and the arrangement of the characters. Good sense will never conclude otherwise.