Essai sur le Principe Générateur dcs Constitutions Politiques et des autres Institutions Humaines (by Joseph de Maistre, 1809).
In noticing De Maistre's Considerations on France and Letters on the Spanish Inquisition, we said a few words of that part of the first-named essay which relates to written constitutions, and which is expanded in the Essai sur le Principe Générateur des Constitutions Modernes, the most original and systematic of its author's speculations. It has been the source of commonplaces which are repeated in all directions, and on all occasions, by writers who have no notion of the source from which they derive them. The following is an outline of its contents.
The preface begins by laying down the principle that 'Whatever in this science' (politics) 'good sense regards at first sight as an evident truth, almost always turns out, when experience has spoken, to be not only false, but fatal'; and after giving various examples, he goes on to lay down a variety of principles, which he says are proved by experience to be true in 'the most substantial and most fundamental part of politics, that is to say, in what relates to the very constitution of empires.' These principles are as follows:—
'1. No constitution results from a deliberation; the rights of the people are never written, or, if they are, it is only as a simple declaration of anterior unwritten rights.
'2. Human action is circumscribed in cases of this sort to such a degree that the men who act are only circumstances.
'3. The rights of the people, properly so called, proceed almost always from the concessions of sovereigns, in which case they may be in evidence historically; but the rights of the sovereign and of the aristocracy have no known dates or authors.
'4. Even these concessions have always been preceded by a state of things which has made them necessary, and which did not depend upon the sovereign.
'5. Though written laws are never more than declarations of anterior rights, it is far from the truth that all rights can be written.
'6. The more writing the weaker is the institution.
'7. No nation can give itself liberty if it has not got it, as human influence does not extend beyond the development of existing rights.
'8. Legislators properly so called are extraordinary men, who belong perhaps only to the ancient world and the youth of nations.
'9. These legislators, with all their marvellous power, have never done more than collect pre-existing elements, and have always acted in the name of the Divinity.
'10. Liberty in one sense is a gift of kings; for almost all free nations were constituted by kings.
'11. No free nation ever existed which had not, in its natural constitution, germs of liberty as old as itself, and no nation ever tried effectually to develop by its written fundamental laws, other rights than those which existed in its natural constitution.
'12. Assemblies of whatever kind cannot constitute nations. Such an enterprise ought to be placed amongst the most memorable acts of madness.'
These principles, which are announced in a body in the preface, are expanded and supported in the body of the essay itself. De Maistre begins with considering the nature of laws. A law, he says, is not, as Locke declared, 'the expression of the general will'; such laws are mere regulations (règlements). A law (loi) is the expression of a superior will. He quotes Bergier for the remark, 'Sans le dogme d'un Dieu législateur, toute obligation morale est chimérique. Force d'un côté, impuissance de l'autre, voila tout le lien des sociétés humaines.' Hence 'primordial good sense, happily anterior to sophisms, has sought on every side a sanction for its laws in superhuman power, either from God, or in revering certain unwritten laws as emanating from him.'
Fundamental law, 'ce qu'il y a de plus essentiel, de plus intrinséquement constitutionnel et de véritablement fondamental,' never is written, and never can be written, without danger to the State. The English Constitution, in particular, abounds with proofs of this. It is, he says, 'l'unité la plus compliquée et le plus bel équilibre de forces politiques q'un ait jamais vu dans le monde.' It was made by circumstances infinite in number, and the fact, that out of these numerous and discordant elements, there arose such a whole, is as clear a proof that the English Constitution was made by God, and not by man, as the fact that letters thrown out of a window, formed a poem when they reached the ground, would be, of the fact that they were guided in their fall by some intelligent cause.
The greatest of all cases of an unwritten law is to be found in Christianity. The New Testament contains no system of dogmas imperatively announced. Creeds in all ages have been the work of heretics. 'If Christianity had never been attacked it would never have written to fix its dogmas; though, on the other hand, dogma has never been fixed by writing, except because it existed before in its natural condition of word.'
The true authors of the Council of Trent were Luther and Calvin. 'The faith would be a thousand times more angelic if a sophistical opposition had not forced it to write; it weeps over the decisions which revolt dragged from it, and which were always misfortunes, since they all suppose doubt or attack, and could not be born except in the midst of the most dangerous convulsions. The state of war raised these venerable ramparts round the truth; they defend it no doubt, and make it impregnable, but by that very fact less accessible.' Christianity, considered as a system of Church government, follows the same principles.
The superhuman character of the Papal authority is proved by the fact that, like all other great and lasting things, it was developed by degrees, having in its infancy been altogether a different thing from what it afterwards became. This supernatural character of all law, properly so called, is further proved by the fact that all ancient legislators surrounded their institutions with religious sanctions, and that the only cases in which savages have been civilised by Europeans, are cases in which they have been civilised by missionaries, Paraguay being the great illustration.
So small is mere human power in the matter of legislation that men cannot even reform efficiently. 'De là cette aversion machinale de tous les bons esprits pour les innovations. Le mot de réforme en lui-meme, et avant tout examen, sera toujours suspect à la sagesse.'
Men cannot even name an institution if they try to do so. The names which really last are names given by accident—' Sceptre,' 'Chancellor,' 'Constable,' ‘Tuileries,' etc. We must always distrust ‘tout nom pompeux imposé a priori.' A rather unlucky illustration of this is given in the Considerations on France. The Americans, he says, propose to build a town, to be called Washington, where the Congress is to sit. 'There is too much deliberation, too much humanity in this affair; you may bet a thousand to one that the town will not be built, or will not be called Washington, or that the Congress will not sit there.'
If ancient history is not sufficient to demonstrate the truth of his principles as to the Divine origin of society and sovereignty, De Maistre appeals to contemporary history to complete his case. The elimination of the Divine element from society, he considers is proved by modern experience, to be destructive to all institutions. The general spirit of the eighteenth century was that of 'an insurrection against God.' People had doubted and had denied in other ages, but in no other age had their denial taken the form of hatred against all that is holy.
He puts into the mouth of the philosophy of the eighteenth century the following passionate burst of blasphemy addressed to the Almighty: 'Leave us. Must we then eternally tremble before priests, and receive from them such instructions as they choose to give us? Truth all over Europe is hidden by the smoke of incense. It is time for it to emerge from this fatal cloud. We will speak of thee no more to our children; when they grow up to be men, they will have to find out for themselves whether thou dost exist, what thou art, and what thou dost ask of them. All that exists displeases us because thy name is written on all that exists. We will destroy all, and remake it without thee. Get out of our councils, get out of our universities, get out of our houses; we shall know how to act for ourselves; reason is enough for us. Leave us. . . . How' (he continues) 'has God punished this execrable madness? He has punished it as he created light—by a single word. He said, Do (faites), and the political world fell.'
These are the leading points in this remarkable essay—remarkable as the first, the most eloquent, and the most plausible protest ever made against what its author called, in general terms, 'modern principles'; remarkable as containing, in a short and pointed form, the whole of that theory of Development which Dr. Newman has made so celebrated in our own country; remarkable as one of the earliest works in which the general principles of what we should now call historical science are put forward, though not correctly, in the form in which we are accustomed to them; and remarkable, lastly, for the vein of ingenious sophistry which runs through it from first to last, and which vitiates every one of its conclusions when they are closely examined.
No man in modern times ever admired the Jesuits more than De Maistre. No man ever exhibited in a more striking shape the characteristics which are usually ascribed to that Society—dexterity, plausible subtlety in talking the language of each successive generation, and one-sided sophistry which even in the most sincere has all the effects of insincerity. With these observations we will proceed to examine the general principles of the essay, and try to point out the fallacies by which it is pervaded.
The general object of the whole essay is to surround the origin of all Governments with mystery, to represent all political institutions as divine, and to deny that men made, or can make, or improve them. This is made out by misrepresenting a fact of the highest importance, which De Maistre apprehended imperfectly (for no one can accuse him of conscious sophistry), and by misusing a familiar word. The fact misrepresented is the fact that men did not make human nature itself. The word misused is the word 'law.' If these points are properly appreciated, they will supply the key to the whole of De Maistre's arguments, and to many others conceived in the same spirit.
First as to the fact. It is an important truth that the power of legislation is bounded by human nature, and that no legislation can be either permanent or useful, which is not founded upon facts over which the legislator has no control whatever. The general outline of morality, family relations, and all the leading human passions, together with the consequences which they produce, precede legislation. They were the materials with which the first legislators, whoever they may have been, had to deal; just as the existing state of things, the existing distribution of property, intelligence, population, etc., are the materials with which those whose business it is to frame Reform Bills have to deal in the present day; and no doubt any laws which had been made in complete disregard of those facts, would have been broken through, and would not have lasted.
Not only is the proposition that the power of legislators is bounded by circumstances perfectly true, but it is a truth which no legislator ought ever to forget, however much he may be disposed to do so. It is highly desirable, for instance, that we in this country should be generally aware of the fact that it is not in the power of Parliament either to make England as democratic as the United States, or to prevent it in the course of time from becoming so, if in point of fact the course of events and the general progress of society tend in that direction. In the same way, it was not in the power of the various legislators who in the last century made laws for America to alter the natural course of events there. The constitutions devised by Locke and others for different States which now form part of the Union, were mere pieces of waste paper.
The appreciation of this fact lies at the bottom of all intelligent study of history, and of all sound practical legislation, and De Maistre is entitled to great credit for having perceived its existence; but the more his views are examined, the more clearly will it appear that he saw the fact itself through a distorted medium, and described it in language altogether incorrect and misleading. He draws from the facts that men did not make their own nature, and that laws which are not founded upon, and not agreeable to, that nature are not permanent, the inference that laws which are permanent are not made by men, but are imposed by God. It would be just as reasonable to say that God builds line-of-battle ships, because men do not create oak trees and iron ore. Of course there is a sense in which it may be said that everything whatever, the worst things as well as the best, the most insignificant as well as the most important, are the work of God; but as this may be affirmed of everything whatever, there is no use in affirming it of any one thing in particular.
De Maistre was more or less conscious of this difficulty, and he accordingly tried to meet it by the second expedient which we have mentioned—playing upon the word 'law.' He draws a distinction between a law and a rule, and he says that though men may make rules (règlements) God only can make laws, and that the instruments which he chooses for this purpose are certain semi-divine legislators, who appear only in the infancy of nations and legislate for them.
It is certainly true that laws in very ancient times were regarded as something supernatural; but it is equally true that the more these supposed supernatural laws are examined, the more clearly will it appear to be impossible to point out any substantial distinction between them and the laws, commonly so called, which are made every day by all the governments and most of the courts of justice in the world.
This may easily be tested by taking a specimen of each class. If De Maistre had been asked to give an instance of a true law, in his own sense of the word, he would probably have chosen the law of the old French monarchy, that France should be a monarchy hereditary in the male line. If he had been asked to mention a règlements, he might have taken any English Act of Parliament at random.
Let us consider, then, whether there is any substantial generic difference between the two. When we say that for many centuries—fourteen, if any one pleases to say so—it was the law of France that sovereignty should be hereditary, and should exclude women, what do we mean? We mean that during that period all the parties concerned were accustomed to act upon that principle, and that any one who acted on a different principle did so (as Edward III. did) at the risk of being resisted, defeated, and, if he were a private person, punished, by the public force of the French nation. Foolishly or not, such was the fact; and the short rule, generally known to all the world, which commemorated the fact, was the law of France. If the French from any cause had ceased to act upon or enforce it, it would no longer have been a law. It would still have been a principle, to which it might have been wise to attend, but its quality as a law depended upon the fact that it could not be disobeyed with impunity.
This differs from the most petty provisions in the most commonplace Act of Parliament only in respect of their comparative importance. Each is a rule affecting human conduct, and each is a rule capable of being enforced by penalties against all who violate it, and each would cease to be a rule, and become a mere speculative principle, if the sanction by which it is enforcible were to be withdrawn. If, then, there is no difference, except a difference of degree, between the most solemn and important, and the pettiest and most technical of laws—between what De Maistre calls a law and what he calls a regulation— and if he himself admits that regulations are continually made by men even in matters of great importance, what necessity is there for assigning any mysterious origin to what he calls laws? Why should not the one be made by men as well as the other?
This line of thought supplies the answer to De Maistre's observations about written laws, their supposed foundation in pre-existent rights, and the supposed weakness inherent in constitutions which require them. Rights are the creatures of laws, and cannot precede them. They may of course be conferred by an unwritten as well as by a written law; but it is impossible to frame any intelligible notion of a right without a law from which it is derived.
So long as Robinson Crusoe lived all alone in his island, he had no rights. He could have none till other men, subject to a common superior, divine or human, joined him. When a law is unwritten and is liable to be differently understood by different people, the rights which it confers are ambiguous; and thus, when it is put into writing, what happens is not the confirmation of pre-existing rights, but the establishment of a particular set of rights, to the exclusion of all others. A written law which fixes once for all the meaning of what was ambiguous before is as much an innovation as any other.
A reading which confined the line
‘Aio te Aeacida Romanos vincere posse’to one of its two possible meanings would alter that which is most characteristic about it; and though Magna Charta and the statute which defines treason are declaratory in form, every one knows that in fact they both did confer, and were regarded as conferring, upon English subjects some of their most important rights. To say that a man has no right to a thing, but that he has a capacity of getting one, and to say that he has a right to a thing, but that his right is disputed and unascertained, is to say the same thing in different words. A right is a power conferred by law, and whilst the law is doubtful the right is only inchoate.
The truth is that, when De Maistre denies that men can legislate, because their legislation is founded on pre-existing rights, he means that they usually legislate by the help of fictions. They declare that such a thing is the law, when they really mean that for the future it shall be, and shall be considered to have been, the law.
When judges pronounce on a new or unsettled legal question, they appear to declare, but they in truth make, the law upon the subject. They no doubt make it in accordance with principles and decisions laid down by their predecessors. They do not invent it entirely out of their own heads. They prolong existing lines, and complete an existing though imperfect plan, but they not the less cause that to be regarded as settled law, which was before a moot point; and they thus alter a part of the law of the country. To remove obscurity is to alter.
This is the true criticism upon that doctrine of Development of which De Maistre and Dr. Newman have said so much. Development is an active process. It is legislation and alteration—improvement possibly, but still alteration; and thus, in their anxiety to prove the immutability of their own dogmas, and to restrict the sphere of human reason, these eminent men have only succeeded in showing how various are the forms which human activity assumes, and how it will do under one name what it considers itself to be forbidden to do under another. Men who will not alter, or legislate, or speculate for the world in plain words, are the most active of legislators, speculators, and innovators, under the fiction of being guardians of a tradition.
If we pass from De Maistre's theory to his facts, we find that onesidedness and partiality are at least as characteristic of the one as of the other. His argument contains, amongst other things, one of the most singular cases of 'Heads I win, tails you lose,' which are anywhere to be met with. The more writing, he says, the more weakness, and he quotes the New Testament and the history of Christianity as a proof of it. Here, he says, there was originally no writing at all. All was oral, and the heretics were the cause of the written dogmas.
He then turns to the case of the Old Testament. Hero there was a written law which founded the most durable institution in the world; for Judaism has lasted 3000 or 4000 years, and is based on the books of Moses. With this inconvenient fact De Maistre deals as ingeniously as Warburton himself. Precisely so, he replies; and what more convincing proof can you have of the miraculous origin of the Mosaic institutions? 'Cette magnifique exception a une loi générale qui n'a cede qu'une fois, et n'a cédé qu'a son auteur, démontre soule la mission divine du grand legislateur des Hebreux bien mieux que' — Warburton's Divine Legation.
The two arguments appear to us to be much upon a par. How, by the way, came De Maistre to forget the Koran? There is a written law which governs, and has for more than twelve centuries governed, the consciences of men, without much variation, from Delhi to Morocco. Is this a diabolic miracle? If every fact in his favour was natural, and every fact against him miraculous, De Maistre was fortunate. As to writing proving weakness, it is no doubt true that written laws shackle the discretion of legislators and of the executive power, and this under some circumstances may be a bad thing.
It is also quite true that to write laws wisely requires great experience and consummate care. To suppose that a lasting constitution may be written some morning before breakfast, and that such a scheme can change the whole character and social condition of a country, is simply a childish error, into which no doubt many people have fallen at different times; but to argue from this that written laws on constitutional subjects, and proceeding upon deliberation, are useless or impossible to make, is to argue at random, and to fly in the face of all experience.
Written constitutions are to be found in every branch of human affairs. What else is the lease of a house, a marriage settlement, a partnership deed, the articles of association of a joint-stock company, the charter of a town? Every English colony has its written constitution, and the written constitution of the United States, made in express defiance of all De Maistre's principles, has for about eighty years succeeded in the most marvellous manner. The fact is that writing, like everything else, has its place in human history. There is a period after which it is as natural and necessary for men to write their constitution, as it is natural for them in simpler times to leave it unwritten, and evils are as incidental to the one as to the other state of things; but, whether a law is written or unwritten, its nature is always the same. It is a command which imposes duties and confers rights. The writing is only evidence of its terms.
As to the last part of De Maistre's essay, it may be observed that his etymological observations are perhaps the happiest part of the whole work. They are beautiful as guesses, but as arguments they may be described as good taste run mad. Nothing certainly can be more vulgar or offensive than the unnatural and pretentious names, of which so many were invented under the influence of the French Revolution; and it is very true that names originally vulgar, but ennobled by historical associations, have something specially racy and attractive about them. But etymology, especially as De Maistre understood it, is not definite enough to support the sort of propositions which he wished to build upon it. He knew just enough of it to make fireworks of, and his fireworks are singularly graceful and ingenious. There is a shrewdness in some of his observations on this head which reminds one of Mr. Carlyle.
As to the argument of which his etymology forms one branch—the argument, namely, that the divine origin of law is proved by the fact that the exclusion of the divine element from politics by the revolutionary spirit led to the downfall of the political world—nothing can be more false. Whatever may be the truth as to the exclusion of the divine element from politics, it is idle to assert that the political world has fallen to pieces. The very contrary is the fact. Political institutions throughout the whole of Europe and America are far stronger now than they were before the Revolution. Whatever may be thought of the United States, it is impossible for any sane man to deny the broad fact that there stands one of the firmest and strongest Governments in the world, founded upon the very principles which De Maistre denounced as atheistical, and realising the very project (that of a great republic) which he declared to be not only impossible, but to involve a contradiction in terms like a round square. Every part of Europe is moving in the same direction under a variety of conditions.
The great blemish which is inseparable from all such speculations as De Maistre's is that they regard the greatest movements of modern times, the Reformation and the Revolution, as simply negative and destructive. No movements in fact were ever so creative. It was the mass of the living and growing body which burst the old clothes. The new order of things which we see growing up in all directions— lay government, lay science, natural religion—are positive and living if ever anything was. The new elements introduced into human life by Christianity itself, were not more full of vital energy and reality, than those which have been fostered and partially thrown into shape, by the movements of the last three centuries.
The real cry of the eighteenth century was not a blasphemous cursing of God, but an exceeding great and bitter cry against what it regarded, and not wrongly, as a blasphemous and in some respects fraudulent misrepresentation of the divine character. Men did not call upon God to leave them, but upon kings and priests, who claimed to be God's agents, to stand out of the light of mankind, and let them see for themselves what the divine will and character were.
Such at least was the case with many of the most audacious writers of the eighteenth century. To describe Voltaire and Paine, for instance, as atheists is a gross calumny. Sour and narrow-minded pedant as he was, Robespierre believed in his Être Supreme; nor will any one who looks, with anything like an unprejudiced eye, at the theories of our own age and nation, venture to deny that, with all their confusion and conflict, they are rapidly bringing into existence an order of things which, whether good or bad, shows as much promise of stability, and of producing a powerful effect on the character of the human race, as any that has preceded it.
Saturday Review, July 13, 1867.