To possess ourselves of a clear idea of what government is, or ought to be, we must trace it to its origin.In doing this we shall easily discover that governments must have arisen either out of the people or over the people.Mr.Burke has made no distinction.He investigates nothing to its source, and therefore he confounds everything; but he has signified his intention of undertaking, at some future opportunity, a comparison between the constitution of England and France.As he thus renders it a subject of controversy by throwing the gauntlet, I take him upon his own ground.
It is in high challenges that high truths have the right of appearing;and I accept it with the more readiness because it affords me, at the same time, an opportunity of pursuing the subject with respect to governments arising out of society.
But it will be first necessary to define what is meant by a Constitution.
It is not sufficient that we adopt the word; we must fix also a standard signification to it.
A constitution is not a thing in name only, but in fact.It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none.A constitution is a thing antecedent to a government, and a government is only the creature of a constitution.The constitution of a country is not the act of its government, but of the people constituting its government.It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organised, the powers it shall have, the mode of elections, the duration of Parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in fine, everything that relates to the complete organisation of a civil government, and the principles on which it shall act, and by which it shall be bound.A constitution, therefore, is to a government what the laws made afterwards by that government are to a court of judicature.The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.
Can, then, Mr.Burke produce the English Constitution? If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a constitution exists, or ever did exist, and consequently that the people have yet a constitution to form.
Mr.Burke will not, I presume, deny the position I have already advanced-namely, that governments arise either out of the people or over the people.
The English Government is one of those which arose out of a conquest, and not out of society, and consequently it arose over the people; and though it has been much modified from the opportunity of circumstances since the time of William the Conqueror, the country has never yet regenerated itself, and is therefore without a constitution.
I readily perceive the reason why Mr.Burke declined going into the comparison between the English and French constitutions, because he could not but perceive, when he sat down to the task, that no such a thing as a constitution existed on his side the question.His book is certainly bulky enough to have contained all he could say on this subject, and it would have been the best manner in which people could have judged of their separate merits.Why then has he declined the only thing that was worth while to write upon? It was the strongest ground he could take, if the advantages were on his side, but the weakest if they were not; and his declining to take it is either a sign that he could not possess it or could not maintain it.
Mr.Burke said, in a speech last winter in Parliament, "that when the National Assembly first met in three Orders (the Tiers Etat, the Clergy, and the Noblesse), France had then a good constitution." This shows, among numerous other instances, that Mr.Burke does not understand what a constitution is.The persons so met were not a constitution, but a convention, to make a constitution.
The present National Assembly of France is, strictly speaking, the personal social compact.The members of it are the delegates of the nation in its original character; future assemblies will be the delegates of the nation in its organised character.The authority of the present Assembly is different from what the authority of future Assemblies will be.The authority of the present one is to form a constitution; the authority of future assemblies will be to legislate according to the principles and forms prescribed in that constitution; and if experience should hereafter show that alterations, amendments, or additions are necessary, the constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future government.
A government on the principles on which constitutional governments arising out of society are established, cannot have the right of altering itself.
If it had, it would be arbitrary.It might make itself what it pleased;and wherever such a right is set up, it shows there is no constitution.
The act by which the English Parliament empowered itself to sit seven years, shows there is no constitution in England.It might, by the same self-authority, have sat any great number of years, or for life.The bill which the present Mr.Pitt brought into Parliament some years ago, to reform Parliament, was on the same erroneous principle.The right of reform is in the nation in its original character, and the constitutional method would be by a general convention elected for the purpose.There is, moreover, a paradox in the idea of vitiated bodies reforming themselves.
From these preliminaries I proceed to draw some comparisons.I have already spoken of the declaration of rights; and as I mean to be as concise as possible, I shall proceed to other parts of the French Constitution.
