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, start fairly often from a concession by sovereigns, and in this case they can be established historically; but the rights of the sovereign and of the aristocracy, at least their essential rights, those that are constitutive and basic, have neither date nor author.
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 cloud on pain of overturning the state.
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 Sparta, in which nothing was written.
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 Providence has decreed the more rapid formation of a political constitution, a man appears invested with indefinable powers: he speaks and exacts obedience: but these heroes belong perhaps only to the ancient world and the youth of nations. However that may be, the distinctive characteristic of these legislators is that they are kings or high nobles; there is and can be no exception to this….
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 Perfect Republic – O coecas hominum mentes! You cannot be sure that an ordinary man of good sense has not the making of a legislator, even if he has never shown in any way any external sign of superiority. There is no reason for a firm opinion either way; but as far as men like Bacon, Locke, and Montesquieu are concerned, you can be perfectly sure without hesitation that they have no such ability, for it is excluded by the talent they do possess.
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 China to Geneva. But a constitution that is made for all nations is made for none: it is a pure abstraction, an academic exercise of the mind, according to some hypothetical ideal, that should be addressed to man, in whatever imaginary realm he inhabits.
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!