Studies in Constitutional Law/Part 3
Part III
The Conception of Sovereignty
in France
and in England and in the United States
Part III
The Conception of Sovereignty
in France
and in England and in the United States[1]
Section i
The Constitutions of England and of the United States, which are the subject of the two preceding essays, do not appear to lend themselves to comparison, unless the object of the comparison be to bring out the contrasts in the two political organizations. They do indeed differ considerably. The English Constitution is in great part unwritten, that of the United States rests upon a written document. The first is the law of a monarchy, the second the law of a republic; the first is unified and imperial, the second is federal. In the relation between Ministry and Parliament, the one upholds the principle of ministerial responsibility, the other the principle of ministerial independence; finally, to go to the bottom of the whole matter, the first is entirely aristocratic in its construction, the second democratic to the very core. My readers may wonder that I should bring together by way of comparison two such apparently opposite types, and the more so because I may be thought to have treated as the antithesis and opposite of them both that French public law which resembles either Constitution in detail, and even in general outline, more than the English and American Constitutions resemble each other. The differences and analogies between the three Constitutions must, however, not be pressed too far; besides, in proportion as democracy spreads its uniformity over all three countries, these differences gradually melt away and disappear. I only keep up the comparison for a moment to deduce the following principle from it: viz. that in order to determine the species of a Constitution, to define it, and class it per genus et differentiam, there are factors as important as the imperative provisions which it contains, and as distinctive and specific as the particular amount of equilibrium maintained in the Constitution between the several powers. I refer to forces anterior to the Constitution, which were the source of its existence, and which have brought its very elements together and united them. In other words, some important characteristics of the constitutional law of any country can be gathered at least as well from a study of the history, the origin, and the nature of the sovereign power (acte constituant), as from an examination into the relations between the powers constituted by this sovereign authority. I have touched on this point more than once in the course of this work. But the thesis is of so much importance that doubtless there will be some interest in taking it up as a conclusion, and in putting it before my readers in a clearer form, with more unity and connection of ideas.
Section ii
In France, when the Revolution broke out, all the old authorities — except the highest — which exercised any kind of public power — e.g., the nobility, clergy, parliament, the provincial estates, officers, magistrates in towns, and had been, by the very action of the ancien régime, humbled and discredited, dispossessed, or made powerless. They were like branches of a tree nourished only by the bark; and there was no object in sparing this half-dead wood which the sap would never nourish again. The Revolution rather overthrew these authorities by its shock than cut them down. Royalty, deprived of its chief branches, which had withered under the shadow of its own mighty foliage, was like a bare trunk standing alone defying the wind, but ready for the hatchet. It too fell in its turn. Everything therefore had to be planted or sown afresh on this soil, which had been dug and re-dug, and weeded to excess, until it was well-nigh exhausted. The whole body of the people was the only social organization which remained standing. The people had to create new powers, so to say, out of nothing — to invent and constitute a whole new political society. These facts are too well known to require dwelling upon. I only note this much: in France every power, every established authority, dates from the revolutionary constitutions — from them it proceeds, from them it derives its title. In the case of subordinate officers, their title to authority, originally inserted in the constitution itself, has been in later times derived from laws made in virtue of powers given by the constitution. But the primary source is the same for both; neither seek to date their investiture farther back than the constitution. The only exception was in the case of royalty in 1814, and rather less clearly so in 1830. Louis XVIII. flattered himself that he reigned in virtue of an immemorial right: Louis Philippe was not in his own eyes an elected king who owed his crown to a contract between the Chambers and the younger branch of the Bourbons. But these two exceptions in some sense confirm the rule, as they both acted in contradiction to, and as a dissolvent of, the system to which they belonged. The element which had a different origin from all the rest was, in the end, eliminated by violence.
We see the consequences. A day came in history when France was one single homogeneous mass, composed of an immense number of small human atoms. The new groups cut out of this mass could be nothing at first but bodies arbitrarily created for the convenience of the government: they were not organic wholes made by the slow action of long common life. They have all, except the feeble commune, lasted for less than a century; they are all hampered by narrow regulations. Hence they do not, even to-day, possess that individual life, I might almost say that consciousness of personality, which local institutions derive, and derive only, from long years of existence, and from the moderation or the neglect, much more than from the favour or the gifts, of their rulers. They possess, as I said, no individual life. It is the national life which runs through them, it is the consciousness of the national spirit, which sustains and directs their officials. That this is so appears from the law itself, and is shown by this fact — that until 1838 the Départment had no corporate existence, and that even now such corporate existence is denied to the arrondissements. The highest authorities in the state have not, any more than the local authorities, a sense of independent existence, and have not ever become real “persons.” Born yesterday, they are still bound by a close and visible tie to the constitution which created them; they have not had time to create ways of thinking and feeling for themselves, and to find in these habits a stable basis outside the law. The strongest reason for existence and self-reliance in the case of a collective body, that which proceeds from the fact of length of days, could not enter into their being and develop the instinct for personal rights independent of statutes and laws. Since 1789 we may say that there have been in France individuals who were kings, but there has been no royalty, if by that term we mean to describe a perpetual corporation represented at any given moment by a single individual, who receives from it something beyond his own value, his own responsibility, and his own personal credit. There have been assemblies of representative individuals under the name of peers, senators, or deputies, coming together in accordance with the conditions provided by articles of the constitution, and finding in their meeting place exactly what they had brought with them from outside. But there has been no House of Peers, no Senate, no Chamber of Deputies, if by these words are meant permanent bodies possessing a character and spirit of their own, something of which is communicated to each generation of their members. These superior authorities are of but recent date, and have been created by statute; they therefore constantly look for support to the law which created them, and to the people who create the law. The national will — the will of the whole people — is their very soul. But this national will is the will of a day only; it is now strong and powerful, now nerveless and languid; enthusiastically active to-day, to-morrow passive even unto indolence. This is the reason why at times these high authorities seem gifted with irresistible energy, coining from the impulse and the faith of a whole people, and at other times, on account of the indifference of the public, seem entirely at the mercy of the weakness and egoism of the individuals of whom they are composed. Public organization in France is wanting in the lofty esprit de corps, and the comprehensive and admirable self-reliance, exhibited by great corporate bodies existing for partial or special objects, by whom moral life is kept at a constant average level. French organization being so completely national in every pore it follows to their extreme length the oscillations of public spirit.
Section iii
In England the Constitution — I mean by that, the whole of the written or unwritten rules which regulate the exercise of the public powers in all their branches — was never the result of an imperative law passed by a sovereign people creating authorities, so to say, out of nothing, and investing them with fixed powers. The English Constitution is made up out of a long list of bilateral or trilateral acts. These acts are many and varied, they are tacit arrangements, agreements which have been fought out in debate, and solemn compacts made between powers already existing, acknowledged and respected, which were in a sense self-constituted, because they were created by the force of circumstances, and because they claim a title grounded on immemorial possession. Go back in the history of England as far as the fourteenth century. We find three powers standing face to face — the Crown, the Lords, and the Commons; they are constantly engaged either in friendly negotiations or in violent opposition. From year to year they have to rearrange their varying form, their mobile relations, and their undefined and unstable balance of power. The two documents generally quoted as the sources of the modern English Constitution, the Declaration of Right of 1689, and the Act of Settlement of 1701, are but treaties somewhat more weighty than the others. There is no question of creating powers — they already exist — nor even of carefully enunciating their attributes — these are already fixed by custom. The whole object of these famous documents is to define the limits assigned by custom to these pre-existing powers on certain points actually in dispute. The Crown does not owe its authority to these documents, it is the dynasty only which derives its title from them. The royal prerogative remains the prerogative of Henry VIII. and Elizabeth, transmitted without interruption to their successors; and the new dynasty simply accepts the order of things, under the general restrictions of the Common Law, partly confirmed by the Acts which changed the order of succession to the throne.
To sum up: the great political powers in England are in no way the creations of a constitution (pouvoir constituant), for their existence is anterior to any fundamental law whatever. Their title does not result from a direct expression of national will promulgated in express terms and distinct form on a given day, but it is a right originating in actual possession, which has not been contested for centuries. Their foundation is outside any law sanctioned by the seal of national sovereignty; it is therefore outside the Constitution in the sense in which this term is taken in France. And if these extra-constitutional powers look like a part of the Constitution, it is not because they have been made and consecrated by the Constitution, but because the Constitution has been created by them. The Constitution is nothing but the bringing to light of the settlement of frontiers fixed from time to time between these immemorial forces. These forces exist side by side; they perpetually expand, or withdraw their claims to authority, they constantly come into collision with and press upon each other, they make compromises, but they are never at rest.[2]
I have as yet spoken only of the superior powers. The state of the subordinate authorities, local or special, is no less peculiar. These subordinate authorities can generally, as in France, trace back their rights to a definite title granted to them by law at a fixed date; but this original title is so incomplete, and the grant so ancient, that both seem trifling in comparison with the prestige belonging to the fact of ancient possession and customary rights, which constant usage has grafted on to this primary legal basis. National unity in England existed at such an early date, and the feeling for this unity was so active, in those earliest times, that the state did not frown upon these secondary institutions, and even found it advantageous to respect their independent growth, and to recognize them as the complement of or supplement to its own somewhat imperfect organization. Thus it was that the consciousness of a distinct life, and a right independent of all positive grant, in the long run developed an immense number of great and small local and special authorities, such as universities, ecclesiastical corporations, boroughs, parish vestries, and chartered bodies. Created one by one, each body remained more or less independent of the others; not one of them was content to take rank passively in a co-ordinated whole, nor to feel itself strictly dependent on an organization, which was itself subject to the general welfare. Their past history is so ancient, their origin in some cases so near the date of the formation of the body politic itself, they have so completely lost the habit of considering their immemorial social functions as delegated, they look upon themselves so naturally and simply as partners and not agents of the state, that an English lawyer has to reflect seriously, and to philosophize more than is his wont, before he discovers that these institutions are really the servants of the state, and that their claims must give way to considerations of the public good.
My reader will now realize how different all this is from the state of things in France. In France the nation is a single mass; in England it is an aggregate. In France the superior powers have all been created by the Constitution; in England it is they who daily make and complete the Constitution by the very action of their life, and the natural play of the forces working in them. In France the partial or special groups are all artificial; they make up a regular organized hierarchy, and the powers which rule them derive their rights from the law. In England the partial or special groups, and the powers which rule them, date from far back in the past, and each one for itself derives the most undeniable part of its authority from long possession.
Section iv
I have shown in the preceding essays that in the United States the organization of the federal union ought not to be separated from the interior organization of the different States, and that the two organizations have no complete and precise meaning unless placed side by side. It is well to distinguish them at first, and consider them separately in order to see what the whole body derives from each one. The single States, founded on virgin soil by individuals who, having broken their ties with the old world, found themselves thrown back in some sense on the very origin of political society, were obliged, like the French, to re-organize their local and central authorities from top to bottom. I pointed out that in this respect the State constitutions have strong analogies with French constitutions. The Federal Constitution, the only one which I wish to consider here, has a mixed character. It resembles French constitutions in two points: first, it is based upon an avowed act of national sovereignty; secondly, all the federal powers receive their existence and investiture from this act. Nevertheless, on looking closer we see that this manifestation of a supposed national will was, at the outset, only formal and apparent. The name indeed of the American people appears in the Articles of the Constitution, but the people is introduced not to dictate to its statesmen but to receive from their wisdom, an existence which was destined for a long period[3] to remain fictitious and to be called in question. Washington, Jefferson, and Hamilton, were rather the apologists of a common nationality than its representatives. They were also, and above all, the agents of several sovereign States. A good number of these States were more than a century old, some were famous, each and all incorporated the interests of different bodies accustomed to act together, and each State was separated from the other by a powerful and distinct esprit de corps. I must insist on this important fact. In the United States it is the American people which was the artificial element, and, so to speak, created from above. Here it is not the nation which made the Constitution, but the Constitution which created the nation. Effective sovereignty was exercised by the several States which were then the only living force. In every line of the Constitution, we see the States trying to take back in detail what they had granted wholesale to the national element. They dispute and cavil over every clause, they are supported throughout the course of these debates over small details by an immense force of popular feeling. The Constitution of 1787–89 left the separate States standing side by side with the federal powers which it created. The States have each continued to live their own separate life; they look with suspicion upon one another and group themselves into rival factions. The States, by an act of prudent self-abnegation, created a superior authority, and the rival factions, have each in their turn, either used it as a means for securing their own domination, or look upon it as a rock of offence. The political history of the United States for more than half a century is almost entirely the the story of a struggle, full of incidents, between these great organized powers, which existed before the Constitution and up to a certain point independently of it. Nowadays a long common life has strengthened the feeling of national unity. The War of Secession has raised, emboldened, and exalted the federal power. But up to 1860, we may say that the Constitution, except in appearance, and in the sight of foreign nations, scarcely upheld the unity and sovereignty of the American nation. The States had existed so long before the Constitution that they were not willing to acknowledge its paramount authority, and but too often they used the organs of national authority which they had created as instruments ready at hand for the promotion of their own objects.
Section v
From all that I have said in the preceding pages, we can now define the precise sense and substance of the word “constitution “in the three countries. The type of a French constitution is an imperative law promulgated by the nation calling up the hierarchy of political powers out of chaos and organizing them. The English Constitution is essentially a compact between a small number of ancient corporations — legal persons — who are immemorial depositaries of a part of the public power. The Federal Constitution of the United States is in form an imperative law carrying out the organization and fixing the attributes of the central and superior powers; in this point it can be classed with the French constitutions. But this law rests on a treaty between several distinct and sovereign political bodies, uniting to create, and at the same time to limit, the power of the nation.
The consequences of the differences and resemblances brought out by these three definitions are numerous. Several have been noticed in the course of this volume. I shall here recapitulate those only which affect the conception of sovereignty. The foundations of sovereignty, its essence, its limits, its organization, as well as the form and spirit of the documents which proclaim it, are points on which, up to this day, the Anglo-Saxon Constitutions present special characteristics. In these points I may add their likeness to each other is less striking than the contrasts they each offer to the numerous monuments of French public law.
In France, since 1789, the nation considered as an indivisible whole, has been the only existing corporate body animated by a really powerful spirit of life. And within the nation there has been and is nothing solid and stable but individuals. For it was necessary to find a solid foundation on which the state could rest, and to dig deep to clear away the rubbish left by the crumbling edifices of the ancient political bodies. The determination of individual rights is then the first and principal question which came before the French legislator; all French political history gives evidence of its priority and pre-eminence. From this question we have derived a very simple and very precise conception of sovereignty. The nation, for reasons which have been explained, cannot, in France, be anything but the whole body of citizens. Theoretically, sovereignty is the will of all the citizens, and practically it comes to be the will of the numerical majority. In France, since 1789, this majority has been in fact the sole and necessary source of all legitimate authority. The existing powers are all creations of this majority, and all are based on the constitution which is its work. Any power which is suspected of not representing it, or of misrepresenting it, loses in a sense, its justification for existence, and is marked out by this want of harmony for immediate destruction or transformation. There is no fulcrum outside the majority, and therefore there is nothing on which, as against the majority resistance or lengthened opposition can lean. This is why all French political systems always gravitate automatically and rapidly towards unity and homogeneity of powers. The progress of enlightenment and of wisdom are the only resources against this kind of instinct inherent in French institutions. In fact there is no internal and spontaneous action which could be roused in these institutions to oppose the strong current which carries them on in their accustomed path.
In England, all the foreground of the political scene is occupied by ancient corporate bodies, national or local, which, on account of their greatness and their cohesion, have secured a basis of their own within the body of the nation, halfway between the individual and the state. Almost up to our own times the English nation has never conceived of itself as independent or distinct from these bodies. Sovereignty belonged now to the Crown, now to the Lords, now to the Commons, and because it was attracted by each of these permanent and powerful bodies in turn, it was never ascribed to the whole collective body of individual citizens. In English constitutional law up to a very recent time, the word “people “did not mean the whole body of persons making up the British State, it was an accepted equivalent for the three great sovereign powers taken together, viz., King, Lords, and Commons. Compared to these great and permanent powers, the changing and insignificant body of citizens sinks to nothing. In the eye of the English Constitution the citizens as individuals do not attain to political rights, such rights are vested in the three members of the sovereign body, or in corporations as old and independent. The House of Commons, for instance, at the outset certainly represented some hundreds of corporate bodies (personnes morales), counties,[4] towns, boroughs, and later the universities. The original sense of the word “commons,” according to a plausible etymology, is communities, corporate bodies, and not, as we might easily suppose, the common people. These corporate bodies have remained, almost up to the present day, the only persons really entitled to the electoral power. A few individuals have been empowered to vote on their behalf. But the law has taken little cognizance of these individual voters, has scarcely cared to know who they are, and still less to decide who they ought to be. In all boroughs it is local custom which has till recent times decided[5] who are to be the voters. The legal idea of the citizen as a man, who as such is entitled to certain political rights, was for the first time partially recognized in 1832. Up to that date this idea was not so much misapprehended by, as actually unknown to, English law. The entrance on the political scene of citizens as such was at first hardly noticed, but certainly was, on account of its present no less than of its future results, the great political event of the century in England. The Ballot Act, and the statutes against bribery, passed in order to keep the citizen free and uncorrupted in the exercise of his public duty, show that his existence is at last recognized, that he has emerged from the ranks of the corporate bodies, and that he has forced himself on public attention, and has become a person known to the law. Before these Acts were passed, corruption and intimidation were considered to be the private concern of the local body invested with the franchise, and public opinion encouraged the non-interference of Parliament;[6] so time was it that the ultimate elements of the electorate seemed, to be not the individual citizens but the local bodies or corporations Even to-day the opposition and competition between the two ideas shows itself by a marked distinction between the reform Acts which define the qualifications of voters, and the redistribution Acts which carefully distribute the representative power between the electoral bodies. In 1832, in 1867, and even in 1884, the redistribution of seats excited more passion, and was thought of more consequence, than the qualification of voters. This shows how difficult it was for the English public to recognize and admit the idea of political rights belonging to all citizens as individuals. Mr. Gladstone’s Acts,[7] affecting as they do both the extension of the franchise and the distribution of seats, has for the future put an end to the interest, or at least the importance, of the distinction between the two. In these Acts the individual triumphs, and the historical bodies are dissolved, by means of the introduction of districts mapped out in proportion to the number of the electors. According to all appearance the English electoral system is rapidly verging towards the French type.
In the United States the idea of political duties and rights inherent in the individual and citizen has long been familiar to the law; the State Constitutions clearly prove this. It was not therefore for want of recognizing the importance of the electoral franchise, but of set purpose, that the Convention of Philadelphia left it outside the national compact of 1787. I have noticed in the preceding pages the sense and the exact bearing of the Declaration of Rights formed by the first constitutional amendments. I will recapitulate two points only of this analysis: the first, that these amendments are directed against the federal power alone, and do not in themselves bind the separate States; the second, that the amendments give guarantees and means of protection to the individual, but do not give him the means of asserting political rights. As to active political rights, the Federal Constitution assures their possession only to the ancient sovereign bodies known as States. The only possessors of active political rights, according to the Federal Constitution, are the States. Citizens as individuals have no share in the sovereign authority. To give one proof only, and that a very striking one, I remind my readers that there are in strictness, under the working of the Federal Constitution, no federal electors. The central power does not go down to matters so fundamental as the question of franchise. It distributes a certain share of electoral representation to each State, and then each State decides, according to its own pleasure under a single slight restriction,[8] who are to be the persons qualified to choose its representatives in Congress, and its presidential electors.[9]
The principle that political rights are a personal attribute of the individual citizen, leads necessarily to the consequence that the will of the majority of the citizens is sovereign. Now the chief article of the Constitution concerning the composition of the Senate completely contradicts this latter principle. All the States, however unequal the number of their population, are each represented by two members in the Senate. There we have equality among the States but not among the citizens. The presidential election itself, which the convention of 1787 had intended to reserve to the nation and to the majority, was recovered by the States. Nowadays it is the regular rule that in each State the voting for the presidential electors takes place not in separate districts, but in the mass and by “general ticket,” and these presidential electors make up the college called upon to choose the President of the Union. The candidate who gets a majority even of a few hundred votes in the hundreds of thousands of voters in any State — as was once the case at New York — gets the whole vote of that State. Thus at every election it is a majority of States rather than a majority of voters which decides the victory. This is so distinctly the fact, that Presidents have been actually elected (when there were more than two candidates) who might not possess anything approaching to an absolute majority of the popular vote; and some were positively elected when it was clearly proved that they had a minority of the popular vote, as against their sole and defeated competitor. Here we find ourselves confronted by a peculiar conception of sovereignty and of political rights. In the sphere of the Federal Constitution there are no political rights (droits politiques actifs) belonging to the citizens as such, there is only the right to representation divided among corporate bodies, i.e. the States.[10] This is as it is in England, but for different reasons. In the same sphere the formula of sovereignty is a mixed one; the supreme power does not belong solely to the numerical majority of individuals, it belongs also, and in greater part, to the numerical majority of thirty-eight powerful corporate bodies. The States, and not the individual citizens, are the real members of the state, the integrant parts and organic elements, as it were, of the body politic.
Section vi
I should exceed the limits of a mere summary, if I followed out the chain of reasoning which I have begun to the very end. I must allow myself, however, to call attention to one or two more points in regard to the Constitutions of each of the three countries — points which have reference to the scope and objects of the sovereign power, to the spirit of the constitution, to its structure, and to its mode of growth.
We have noticed that in France the political equation, so to speak, consists of two terms only, the individual and the state, the infinitely small and the infinitely great. There is nothing between these two to attract attention. No coherent, solid, and well-tried organization gives consistency to any considerable interests, whether local or special. The local or special groups of yesterday’s growth are mere meeting places used by individuals for certain transactions of public life: they are lifeless figures, and not persons gifted with a consciousness and will of their own. The superior paramount interest of the nation stands face to face with the paltry selfishness of each individual citizen. The prodigious inequality in value between the only two living elements of political society produces this result. The philosopher, gazing down from the dreamlike heights of public power upon the crowd of human atoms, necessarily feels that he has the right to dispose of them despotically without much caring to humour their prejudices. French constitutions further appeal to a people brought back to the indefinite state of nature by the fall of their historical institutions, and gifted anew with an extraordinary plasticity by the ruin of the strong old framework which held the citizens together in fixed compact aggregates. Our philosopher must feel that he has more than enough power to stir up these heaps of human atoms according to his fancy, to bind them together, or to divide them in different ways — in fact to mould them into what he happens to think the best form. In his mind, therefore, there exists a virtually perfect combination of absolute might and absolute right. He needs to make a great effort of reason to prevent dreams from appearing to him easily attainable realities, and it is difficult for him to remember that, among the infinite number of combinations which seem to lie at his disposal, he can hardly expect to find that one which is destined to realize the dream of absolute justice combined with universal happiness. Hence profound idealism and unmistakable optimism are fundamental characteristics of the constitutional creations of the French nation. We find in these creations noble, large, and humane inspirations, which seem to disappear at certain periods of reaction, but which reappear with that sudden power of rejuvenescence of which the French have the secret. This was very noticeable in 1848. But this combination of idealism and optimism naturally increases the ambition, and encourages the presumption, of the state. The state is not sufficiently afraid of summary and authoritative proceedings, and readily inclines towards socialism.
Here we come within view of the fundamental paradox which lies concealed in the constitutional law of France. I have shown above what an important place the individual citizen holds in it. When analysed to its very source sovereignty rests on the individual alone; public power has authority only because the individual gives up a part of his natural liberty, supposed to be unlimited, and of which he can keep as much as seems good to him. Hence no constitutions abound so much as those of France in decided and emphatic assertions as to the rights of individual citizens. The chief leaning of the French constitution makers is all in this direction. In this lies their merit and their glory. Whatever criticism may be passed on the Declaration of Rights of 1789, the fact will always remain that the resounding fame of these memorable axioms has rendered this great service to the world, viz., that the principles of liberty and equal justice for all, up to that time locked up in maxims of philosophers and aphorisms of society, became thenceforth indispensable articles of all constitutional legislation. Even those who violated these principles have, from that day forward, been compelled to pay them hypocritical respect, as the homage that vice renders to virtue. But this zeal for individual liberty is only the first of two tendencies. After the state has been created by the will of all these human atoms, a second tendency in the opposite direction becomes apparent. This Leviathan — the state (or rather those who act in its name) — begins to be conscious of the greatness of its strength in comparison to the weakness of everything that surrounds it; of duties in proportion to this power, and of rights co-extensive with the duties. It tries instinctively to have an aim and an object worthy of the enormous means at its disposal; the idea of a “supreme social good “takes hold of the commonwealth and brings along with it the absolute right of the state (la raison d’État). The rights of the individual, the first thesis of the constitution, and the recognized source of all legitimate power, too often fade away during the supremacy of this second tendency, and sink to nothing before this despotic ideal. The intemperance of Parliament and of the public powers in making laws and regulations, the existence and the exaggerated activity of the special administrative courts in which the state appears both as judge and party, are two facts which show most clearly this tendency to hold private interests and liberties of slight account, and to set up a conscientious despotism of public interests. England, and, in the federal sphere, the United States, have suffered less than France from the first of these evils; they have escaped the second altogether.
In these two countries the importance and prestige of the great corporate bodies who preceded and created their Constitutions has been the cause of their never having experienced this shock of opposition between the state and the individual, this uninterrupted oscillation which alternately raises and gives predominance, now to the rights of the individual, and now to the high mission of the state. Another problem, that of keeping up a balance between the pre-existing powers, has kept the attention of the makers of the Constitution in a region of compromise and moderation, and has prevented them from gliding down the slope which leads to one of two extremes, viz. individual license or state despotism. Definitions and comparisons must not be pressed too far; nevertheless, one of those which I have suggested above elucidates in a rather striking manner this capital characteristic of the Anglo-Saxon public law. I have shown that the two Anglo-Saxon Constitutions, if they are not really treaties, yet contain treaties which are an essential part of them, and that from this fact they derive their most important features. Now, the object of a treaty between living powers is always to give securities to each other. It may happen that they both fall under a predominant power which absorbs them, but it is never the object of a treaty to create such a power; the most in this respect that parties to a treaty can propose to themselves (and this is what happened in the United States) is to create an arbitrator with limited authority, who may preserve harmony between the parties. Absolute justice introduced into a treaty would only be baffled or violated by the rival interests of the parties: the perfection of a treaty, therefore, is not to be an embodiment of ideal justice, but to express with accuracy, and to consolidate an effectual balance of power between the contracting parties. The maintenance of the status quo, a nicely adapted compromise, is the highest aim that a treaty can have. The idea of a supreme social good is quite foreign to it. Narrow, but lucid realism, calm satisfaction or aquiescence in the arrangements of daily life, dislike to great schemes, to heroic remedies and actions, are naturally destructive of a somewhat complex equilibrium: these are the characteristics common to both the Anglo-Saxon Constitutions.
In France, constitution makers (nos constituants) saw nothing but the human monads which, looked at from afar, lost their differences of kind as well as of degree. Hence they were led to treat them as equal and similar, i.e. as abstractions by their very nature amenable to very general principles. Consequently principles hold a very important place in French public law. In the next place, a circumstance connected with the exercise of national sovereignty (l’acte constituant), which is peculiar to France is, that no fabric based on history occupies the ground, and that in the midst of the site to be covered there no longer stands any part of the old edifice, which may hamper the arrangement and complicate the plan of the new construction. The authors of the French constitutions, therefore, have been in the position of an architect about to erect a monument in the centre of a public square — they have a free and clear space at their disposal. How could they escape the temptation of erecting perfectly symmetrical constructions of which all the parts are linked together and radiate from a very few centres? Naturally they would expect that such an edifice, simple, elegant, imposing from the harmony of the whole, and the perfection of detail, would carry prestige with it, and last for centuries. These characteristics are in fact guarantees of solidity, though not the most secure ones; they appeal only to the reasoning powers. But after all it is wise to have recourse to them when one is deprived of the other guarantees derived from custom. French constitution makers, therefore, have done the work of logicians, engineers, and artists. Logic is the soul of their creations. Finally, as all the ancient powers were destroyed or hated, it was impossible to fall back upon their practice or refer to their precedents for anything which was not provided for by express rule. It was thought necessary to enunciate everything afresh, and to fix everything in conformity with principle. This is why the Articles of the earlier French Constitutions aim at being encyclopedic as well as systematic. And ever since the public law of France, following this precedent, has continued to be inordinately explicit and scrupulously literal. There is a maxim which has remained true under all the successive régimes in France, viz., that all rights must be recorded in writing; that no right can come into existence without a document to attest it, or be annulled without express abolition. There is no country where the feeling for customary law is more blunted than in France, or where the virtue of leaving things to be understood is less appreciated. Nor is there any country where there is a greater dislike to the idea of an equity (droit prétorien), which, while preserving the form, changes the substance of written law.
It is due to the nature of sovereignty (actes constituants) in England and the United States that these countries have escaped from the despotism of logic. We have shown that the fundamental laws of these countries if not essentially treaties, yet contain treaties between established powers. Now the one aim of a treaty is not to bring down everything to a few simple axioms and to follow them out to their logical consequences. A treaty cannot help bearing more or less the stamp of circumstances, and reflecting the incoherence, diversity, and complexity of the state of things which it aims at settling; the most it can do is to introduce into that state of things some sort of order and arrangement. The spirit of system does not extend over the domain of diplomacy — a sphere of which the limits are ever shifting under the influence of force and of will. The principle that politics are to be treated in the spirit of a treaty is universally and indisputably recognized in England, of this I have already given proofs. The recognition of this principle is less evident in the Constitution of the United States. In appearance, the Federal Constitution aims at being a well-ordered composition; it lays down general principles. But we need only look closer to see that in it no principle is followed out to the end, but that concrete and varied interests settle everything by a compromise. See, for example, the principle of the liberty of the individual, categorically asserted at the head of the Declaration of Independence, and contradicted in a hypocritical form by Section IX. of the first Article of the Constitution. See again the principle of respect for contracts and federal arbitration between the States, which is categorically affirmed in the text of the Constitution but is openly contradicted by that eleventh Amendment of which the Supreme Court has recently made such an extraordinary application.[11]
On every page contradictory clauses show traces of a constant struggle, and of victory alternating between the Northern and Southern States, the industrial and agricultural States, between the populous States and the small States, between the free and the slave States, and lastly, between all the States, and the yet unborn national authority. Logical sequence and systematic order break down and constantly perish amid these struggles for power.
A treaty further aims at settling only the points already in dispute, or likely to become so. All other points are either not settled or settled by protocols and complementary documents. In this also Anglo-Saxon constitutional law resembles a treaty. Both in England and in the United States, side by side with special and definite constitutional documents, a large field is occupied by custom, by supplementary legislation, and by local law; thus changes and adaptations which the course of time renders necessary, are prudently and, so to speak, noiselessly provided for. Hence on each occasion for change, naturally much less is at stake than if it were necessary solemnly to modify the fundamental provisions of the Constitution. Such a Constitution as that of England or of the United States is therefore freer, more supple, and yet at the same time more stable, than can be any French polity. Every educated person is aware that customary law has a place, and fills a considerable rôle, in the English Constitution; it is not so generally known that in the United States customary law has been the origin of more than one powerful and original development of the Federal Constitution. I have tried in the preceding pages to put this fact in a clear light with reference to the powers of the Senate. It is no less apparent in the system of graduated elections which, as regards the presidential election, has gradually grown up, side by side with the plan provided by the letter of the Constitution.
Is it necessary for me to dwell further on the importance and the bearing of the contrast on which I have been insisting? Slow changes, careful transitions, which follow and reflect the natural progress of events; half concealed and almost unconscious transformations, which do not run counter to consecrated formulas until innovation has secretly gained over the instincts of the people, and has allied itself with long custom — all these different forms of growth take place more easily in England, and even in the United States, than in France. As much may be said for the partial modifications of the Constitution, which though in appearance arbitrary are in fact the work of a statesmanlike instinct, constantly checked by regard for what is practical and expedient. In France the logical perfection of the Articles of the Constitution causes this danger; if any any modification be once admitted, the whole Constitution is put in question, and is liable to be re-arranged in accordance with the new principle which is involved in the change. A French constitution may be likened to a town defended by a single wall without any redoubts inside it. A breach once made, the enemy pours in and occupies the position. The two Anglo-Saxon Constitutions on the other hand, are well provided with these internal defences; by their very nature they could never go through those sudden transformations, which are so often in advance of the needs and ideas of the people. They have never suffered from these manifestations of noisy triumph by which progress is exposed to the reaction of exasperated prejudice, and which, on account of one faulty feature, bring about a useless and dangerous revision of the whole constitutional system. Compared to French constitutions they exhibit several defects — they are inferior, regarded as an artistic whole, they are not inspired by elevated ideas, and there is little in their construction to satisfy the intellect. But to make up they are endowed with an elasticity, and with a capacity for adaptation, which have up to this day insured to them a far longer existence than has been granted to the classic constructions and the “eternal mansions “of French constitution-makers.
I say advisedly “up to this day.” The transformation which took place in France in the last century is not confined to that country; it proceeds from general causes. It was accomplished in France at one stroke; in other countries it has taken place by stages, or by a process of insensible evolution. In all societies the increase of personal property, unlimited as it is, and accessible to all, equalizes the differences caused by the preponderance of landed property, which by its nature is limited in amount, and subject to a natural monopoly. In all societies the development of science, a domain open to all gifted men, equalizes the differences based upon the preponderating influence of experience and tradition, the inheritance of certain corporations and certain families. In all societies, thanks to the improved means of communication and the activity of commerce, distant regions are brought nearer, their inhabitants mingle together, and tend to lose the feeling of a separate life and destiny. Everywhere we see a daily diminution of the differences between localities, persons, ideas, and interests. In fact everything which serves as framework or support to special or partial groups, intermediate between the State and the individual, has received a shock, and has been undermined or destroyed. It is certain then that sooner or later all nations will go through the conditions out of which, in 1789, the French political system arose. By the slow action of these causes, we see that in England , as well as in America, democratic equality and national homogeneity are growing side by side, and are bringing about the day, which is still distant, but inevitable, when these two countries will possess a simple political constitution founded on law, i.e. on the express will of the numerical majority. Law will then be founded on logic alone, and logic, left mistress of the field by the gradual retreat of tradition and custom, will express its will and find its satisfaction in systematic ideas. Logic will in consequence be forced to rely on its own resources alone, and from these, combined with a more complete and minute knowledge than now exists of the objects aimed at by a constitution, will have to provide those checks on sudden change which policy now draws from custom, tradition, and other sentiments which do not originate in the rational part of human nature but are derived from past history.
An acute observer has remarked that the United States are still in the feudal stage of their history, and that they must in their turn pass through the successive phases of centralization. I have already pointed out the circumstances which have retarded, and which will still greatly delay, the progress of this evolution. In England, at any rate, the Constitution is gradually ceasing to be a government of public opinion, and is becoming an organized democracy. Formerly the majority of the people were excluded from the parliamentary franchise. At that time popular aspirations formed a sort of atmosphere, generally in a state of moderate activity, in which independent political powers floated and moved with apparent spontaneity, but in the end yielded to the course of opinion. Sometimes they delayed and resisted this current for a long time till its accumulated force carried everything away before it. To-day, owing to the existence of almost universal suffrage, the will of the people is condensed and embodied in a legal organ, viz., Parliament. Popular will acts upon the law and upon the government like a powerful and regular spring, presses and bears upon the right spot, and thus produces with perfect certainty the desired movement of the political mechanism.
To sum up the whole matter, the distinctions already dwelt upon between the three countries may, after all, tend to disappear through partial and gradual assimilation. They proceed in part from the fact that, while all three nations are influenced by a common democratic movement, the progress of this movement has, in the case of England and of the United States, been delayed, whilst in France it has been hurried on, so that France has reached a more advanced stage of the movement than the other two countries. This explanation is necessary in order to make the exact bearing of my preceding remarks intelligible, and with this I close this already too lengthy essay.
- ↑ [This heading is rather an account of the contents of Part III. than a translation of the title affixed to it by Monsr. Bontmy. He entitles this Part “La Nature de l’Acte Constituant en France, en Angleterre et aux États-Unis.” The expression “l’acte constituant” is a term for which there is no exact English equivalent; it may be described as “the act whereby the sovereign power in a State “creates a constitution.” The want of any proper English terminology for expressing this idea is itself a marked illustration of the soundness and importance of the contrast drawn by our author between French and English constitutionalism. (D.)]
- ↑ “Of the three powers which exist together, each asserts its own rights but hardly knows their extent. The success of each thus depended on the time, the circumstances, and the king who was on the throne. England owes its existing Constitution to chance.” — D’Argenson, Considerations sur le Gouvernemeut, p. 38.
- ↑ [Compare in confirmation of this view Bryce, American Commonwealth, i., p. 16, 1st eel. (D).]
- ↑ [A county is not in strictness a corporate body, but is a personne morale in the sense in which the term is here used. (D).]
- ↑ [This is now determined by statute. (D).]
- ↑ [Parliament has from a period long preceding the Reform Act of 1832, treated corrupt practices as offences (see Blackstone’s Commentaries, i., pp. 178, 179). What Monsr. Boutmy no doubt refers to, is the recognised existence of (so-called) rotten boroughs. (D).]
- ↑ [See the Representation of the People Act, 1884, 48 Vict. c. 3, and the Redistribution of Seats Act, 1885, 48 & 49 Vict, c. 23 (D.)]
- ↑ Constitution of U.S., Art. i., s., ii.
- ↑ Even since the Fifteenth Amendment the States have been left at liberty to create electoral inequalities between citizens of the United States so that they do not depend on race or colour.
- ↑ [The House of Representatives, however, does represent the people. (D.)]
- ↑ It is well known that when certain States repudiated their debt, or reduced the interest assured to their creditors by law, the Supreme Court declared itself incompetent and refused to entertain the claims of the plaintiffs.