Of Divine Influence
in Political Constitutions
Man can modify everything within the sphere of his activity, but he creates nothing: such is his law, in the physical as in the moral world.
Man can no doubt plant a seed, raise a tree, perfect it by grafting, and prune it in a hundred ways; but never has he imagined that he had the power to make a tree.
How can he have imagined that he had the power to make a constitution? Could it be through experience? Let us see what it teaches us.
All the known free constitutions in the world have been formed in one of two ways. Sometimes they have, so to speak, germinated in an imperceptible manner by the convergence of a host of circumstances which we call “fortuitous”; and sometimes they have a single author who appears as a phenomenon, and makes himself to be obeyed.
In these two assumptions, here are the signs by which God warns us of our weakness and the right He has reserved to Himself in the formation of governments:1
1. No constitution results from deliberation; the rights of the people are never written, or at least the constitutive acts or the written fundamental laws are never anything but declaratory statements of pre-existing rights, of which we can say nothing more than that they exist because they exist.2
2. God, having not judged it appropriate to use supernatural means in this business, circumscribes at least human action to the point that, in the formation of constitutions, circumstances do everything, and men are only circumstances. Quite commonly even, in pursuing a certain aim they attain another, as we have seen in the English constitution.
3. The rights of the people, properly so-called, often originate in the concession of sovereigns, and in this case, they may be traced historically; but the rights of the sovereign and the aristocracy, at least their essential, constitutive, and basic rights, if it is permissible to call them that, have neither date nor author.
4. Even the concessions of the sovereign have always been preceded by a state of affairs which necessitated them, and which did not depend on him.
5. Although written laws are nothing but declarations of pre-existing rights, it is nowhere near possible that they be written; there is always, in every constitution, something which cannot be written,3 and which must remain in a dark and venerable cloud, on pain of overturning the state.
6. The more one writes, the weaker the constitution; the reason is clear. Laws are only declarations of rights, and rights are only declared when they are attacked; so that the multiplicity of written constitutional laws only proves the multiplicity of conflicts and the danger of destruction.
This is why the most vigorous constitution of secular antiquity was that of Sparta, wherein nothing was written.
7. No nation can give itself liberty if it does not have it.4 By the time it begins to reflect on itself, its laws are made. Human influence does not extend beyond the development of rights which already exist but are ignored or contested. If imprudent men overstep these bounds with reckless reforms, the nation loses what it had without gaining what it wants. Hence the necessity of innovating only very rarely and always with restraint and trepidation.
8. When Providence has decreed the more rapid formation of a political constitution, there appears a man clothed with an indefinable power: he speaks and makes himself to be obeyed: but these extraordinary men perhaps belong only to the ancient world and the youth of nations. Be that as it may, the distinctive characteristic par excellence of these legislators is that they are kings, or high nobles: there is and can be no exception in this regard. It was this that sullied the constitution of Solon, the most fragile of antiquity.5 The days of Athens’ greatness, which were soon passed,6 were interrupted by conquest and tyranny, and Solon himself suffered to see the Pisistratids.7
9. These legislators, even with their marvellous power, have only ever gathered together pre-existing elements in the customs and character of peoples; but this gathering, this rapid formation attached to creation, is only performed in the name of the Divinity. The political and the religious merge together: there is hardly any distinction between the legislator and the priest; and his public institutions consist mainly of ceremonies and religious holidays.8
10. Liberty was always, in a sense, the gift of kings; for all free nations were constituted by kings. This is the general rule, and the exceptions that might be pointed out would fall under the rule if thoroughly scrutinized.9
11. There never existed a free nation which did not have, in its natural constitution, seeds of liberty as old as itself; and no nation has ever successfully attempted to develop, by its fundamental written laws, rights other than those which existed in its natural constitution.
12. No assembly of men whatever can constitute a nation; and any such enterprise exceeds in madness the greatest absurdities and extravagances to which all the Bedlams in the world could give birth.10
To prove this proposition in detail after what I have said, would, it seems to me, be disrespectful to the wise, and do too much honour to the ignorant.
13. I have spoken of one principal characteristic of true legislators; here is another which is quite remarkable, and upon which a book could easily be written. It is that they are never called learned, that they do not write, that they act by instinct and impulse rather than by reasoning, and that they have no other instrument with which to act than a certain moral force that bends men’s wills as the wind bends a wheat field.
I might say some interesting things in showing that this observation is only the corollary of a general truth of the highest importance, but I fear digressing too far: I prefer to dispense with the intermediary arguments and to go straight to the conclusions.
The same difference exists between political theory and constitutional laws as between poetics and poetry. The illustrious Montesquieu is to Lycurgus, in the scale of genius, what Batteux is to Homer or Racine.
This is not all: these two talents positively exclude each other, as we have seen in the example of Locke, who stumbled badly when he decided to give laws to the Americans.
I have seen a great admirer of the Republic seriously lament that the French had not found in Hume’s works a piece entitled Plan for a Perfect Republic. — O caecas hominum mentes [“O the blind minds of men”]! If you see an ordinary man with good sense, but who has never shown any sort of outward sign of superiority, you cannot be sure that he has not the makings of a legislator. There is no reason to say yes or no; but in the case of Bacon, Locke, Montesquieu, etc., say no without hesitation; for the talent he does have proves that he does not have the other.11
The application to the French constitution of the principles I have just expounded is obvious; but it is well to consider it from a particular point of view.
The greatest enemies of the French Revolution must frankly admit that the commission of eleven which produced the last constitution has, by all appearances, more sense than its work, and that it has done all it could. It had at its disposal disobedient materials which forbade it from following principles; and the division of powers alone, although divided only by a wall,12 is still a fine victory over the prejudices of the moment.
But it is not only a question of the intrinsic merit of the constitution. It does not enter into my plan to look for particular defects which assure us that it cannot last; besides, everything has been said on this point. I will only indicate the theoretical error which has served as the basis for this constitution, and which has misled the French from the outset of their revolution.
The Constitution of 1795, like its predecessors, is made for man. But there is no such thing as man in the world. In my life, I have seen Frenchmen, Italians, Russians, etc.; thanks to Montesquieu, I know even that one can be Persian, but as for man; I declare that I have never met him in my life; if he exists, he is unbeknownst to me.
Is there a single country in the world where you can find a Council of Five Hundred, a Council of Elders, and Five Directors? This constitution may be presented to all human associations, from China to Geneva. But a constitution which is made for all nations is made for none: it is a pure abstraction, an academic work made to impress upon the mind a hypothetical ideal, and which must be addressed to man in the imaginary realm he inhabits.
What is a constitution? Is it not the solution to the following problem?
Given the population, morals, religion, geographical situation, political relations, wealth, good and bad qualities of a certain nation, to find the laws that suit it.
Yet this problem is not even addressed in the Constitution of 1795, which considers only man.
Every imaginable reason converges to establish that this work does not bear the divine seal. — It is just a schoolboy’s exercise.
And so, already at this moment, how many signs of decay!
1 [The points that follow are, with some differences, contained in the Essay on the Generative Principle, p. 5, which refers to this work.]
2 “It would take a fool to ask who gave liberty to the cities of Sparta, Rome, etc. These republics did not receive their charters from men. God and nature gave them to them.” (Algernon Sidney, Discourses Concerning Government, vol. I, §2) The author is not suspect.
3 The wise Hume often made this remark. I will cite only the following passage: “This [Parliament’s right to challenge the king] touched upon that circumstance in the English constitution which is most difficult, or rather altogether impossible, to regulate by laws, and which must be governed by certain delicate ideas of propriety and decency, rather than to any exact rule or prescription.” (Hume, History of England, ch. LIII, note B).
Thomas Payne is of a different opinion, as we know. He claims that a constitution does not exist until it can be put in his pocket.
4 Un populo uso a vivere sotto un principe, se per qualche accidente diventa libero, con difficolta mantiene la liberta [“A people accustomed to live under a prince, should they by some eventuality become free, will with difficulty maintain their freedom”]. (Machiavelli, Discourses on Livy, book I, ch. XVI).
5 Plutarch recognized this truth very well: “Solon,” he says, “could not long maintain a city in union and concord, for he was born of common stock, and was not one of the richest of his city, and of only bourgeois means.” (Plutarch, Solon, French translation by Amyot).
6 Haec extrema fuit aetas imperatorum Atheniensium Iphicratis, Chabriae, Timothei; neque post illorum obitum quisquam dux in illa urbe fuit dignus memoria. [“This was the end of the age of the Athenian emperors Iphicrates, Chabrias, and Timotheus; and after the death of those illustrious men, no general in that city was worthy of memorializing.”] (Cornelius Nepos, Life of Timotheus. ch. IV) 114 years passed from the battle of Marathon to that of Leucade, won by Timothy. This is the glory of Athens sounding out.
7 [The dynasty of Peisistratos. Promising the poor a division of Eupatrid lands, Peisistratos attained power over Athens by subterfuge. He was twice overthrown, and twice returned to power; his sons reigned after him, and the tyrant Cleisthenes, whose reforms subverted Eupatrid power forever, after them.]
8 Plutarch, Life of Numa.
9 Neque ambigitur quin Brutus idem, qui tantum gloriae, superbo exacto rege, meruit, pessimo public id facturus fuerit, si libertatis immaturae cupidine priorum regum alicui regnum extorsisset, etc. [“Nor is there any doubt but that the very same Brutus, who earned such glory by driving out the arrogant king, would have wrested rule from any of the earlier kings if a premature desire for liberty, etc.”] Livy, II, 1. The whole passage is quite worthy of consideration.
10 E necessario che uno solo sia quello che dia il modo, e della cui mente dipenda qualunque simile ordinazione [“It is essential that there should be but one person upon whose mind and method depends any similar process of organization”]. (Machiavelli, Discourses on Livy, book I, ch. IX)
11 “Plato, Zenon, Chrysippus, produced books; but Lycurgus, deeds.” (Plutarch, Life of Lycurgus) There is not a single sound idea in morals and politics that has escaped the good sense of Plutarch.
12 Under no circumstances may the two Councils meet in the same room, Constitution de 1795; title V, article 60.