Man can modify everything in the sphere of his
activity, but he creates nothing: such is the law binding him in the physical as
in the moral world.
No doubt a man can plant a seed, raise a tree, perfect it by grafting,
and prune it in a hundred ways, but never has he imagined that he can make a
tree.
How has he thought that he has the power to make a constitution? Was it
through experience? See what it can teach us.
All free constitutions known to the world took form in one of two ways.
Sometimes they germinated, as it were, in an imperceptible way by the
combination of a host of circumstances that we call fortuitous, and sometimes
they have a single author who appears like a freak of nature and enforces
obedience.
In these two assumptions can be seen the signs by which God warns us of
our weakness and of the right he has reserved to himself in the formation of
governments.
1. No government results from a deliberation; popular rights are never
written, or at least constitutive acts or written fundamental laws are always
only declaratory statements of anterior rights, of which nothing can be said
other than that they exist because they exist.
2. God, not having judged it proper to employ supernatural means in this
field, has limited himself to human means of action, so that in the formation
of constitutions circumstances are all and men are only part of the
circumstances. Fairly often, even, in pursuing one object they achieve another,
as we have seen in the English constitution.
3. The rights of the people, properly speaking,
4. Even the concessions of the sovereign have always been preceded by a
state of affairs that made them necessary and that did not depend on him.
5. Although written laws are always only declarations of anterior
rights, yet it is very far from true that everything that can be written is
written; there is even in every constitution always something that cannot be
written, and that must be left behind a dark and impenetrable
6. The more that is written, the weaker is the institution, the reason
being clear. Laws are only declarations of rights, and rights are not declared
except when they are attacked, so that the multiplicity of written
constitutional laws shows only the multiplicity of conflicts and the danger of
destruction.
This is why the most vigorous political system in the ancient world was
that of
7. No nation can give itself liberty if it has not it already. Its laws
are made when it begins to reflect on itself. Human influence does not extend
beyond the development of rights already in existence but disregarded or
disputed. If imprudent men step beyond these limits by foolhardy reforms, the
nation loses what it had without gaining what it hopes for. In consequence, it
is necessary to innovate only rarely and always moderately and cautiously.
8. When
9. Even these legislators with their exceptional powers simply bring
together preexisting elements in the customs and character of a people; but
this gathering together and rapid formation which seem to be creative are
carried out only in the name of the Divinity. Politics and religion start
together: it is difficult to separate the legislator from the priest, and his
public institutions consist principally in ceremonies and religious holidays.
10. In one sense, liberty has always been a gift of kings, since all
free nations have been constituted by kings. This is the general rule, under
which the apparent exceptions that could be pointed out will fall if they were
argued out.
11. No free nation has existed which has not had in its natural
constitution germs of liberty as old as itself, and no nation has ever succeeded
in developing by written constitutional laws rights other than those present in
its natural constitution.
12. No assembly of men whatever can create a nation; all the Bedlams
in the world could not produce anything more absurd or extravagant than such an
enterprise.
To prove this proposition in detail, after what I have said, would, it
seems to me, be disrespectful to the wise and over-respectful to the foolish.
13. I have spoken of the basic characteristic of true legislators;
another very striking feature, on which it would be easy to write a whole book,
is that they are never what are called intellectuals; they do not write;
they act on instinct and impulse more than on reasoning, and they have no means
of acting other than a certain moral force that bends men's wills as the wind
bends a field of corn.
In showing that this observation is only the corollary of a general
truth of the greatest importance, I could say some interesting things, but I am
afraid of digressing too much: I want rather to omit the intermediary arguments
and simply to state conclusions.
There is the same difference between political theory and constitutional
laws as there is between poetics and poetry. The famous Montesquieu is to
Lycurgus in the intellectual hierarchy what Batteux is to Homer or Racine.
Moreover, these two talents positively exclude each other, as is shown
by the example of Locke, who floundered hopelessly when he took it into his
head to give laws to the Americans.
I have heard an ardent supporter of the Republic seriously lamenting
that the French had not seen in the works of Hume a piece entitled Plan for
a
The application to the French constitution of the principles I have just
set out is perfectly clear, but it is useful to look more closely at it from a
particular viewpoint.
The greatest enemies of the French Revolution must freely admit that the
commission of eleven which produced the last constitution has apparently more
intelligence than its work and that perhaps it has done all it could do. It
worked on incalcitrant materials, which did not allow it to act on principle;
although these "powers" are divided only by a wall, the division of
powers is of itself still a splendid victory over the prejudices of the moment.
But it is not only a matter of the intrinsic merits of the constitution.
It is no part of my purpose to seek out the particular faults which show us
that it cannot last; moreover, everything has been said on this point. I shall
point out only the error of the theory on which this constitution is based and
which has misled the French from the beginning of their Revolution.
The 1795 constitution, like its predecessors, was made for man.
But there is no such thing as man in the world. During my life, I have
seen Frenchmen, Italians, Russians, and so on; thanks to Montesquieu, I even
know that one can be Persian; but I must say, as for man, I have
never come across him anywhere; if he exists, he is completely unknown to me.
Is there a single country in the world in which there is a council of
five hundred, a council of elders, and five leaders? Such a constitution may be
offered to every human association from
Is not a constitution a solution to the following problem: Given the
population, customs, religion, geographical situation, political relations, wealth,
good and bad qualities of a particular nation, to find the laws which suit it?
Yet this problem is not even approached in the 1795 constitution, which was
aimed solely at man. Thus every imaginable reason combines to show that
this enterprise has not the divine blessing. It is no more than a schoolboy's
exercise.
Already at this moment, how many signs of decay does it reveal!