Front Page Titles (by Subject) CHAP. VII.: of constitutions. - An Enquiry Concerning Political Justice, Vol. II.
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CHAP. VII.: of constitutions. - William Godwin, An Enquiry Concerning Political Justice, Vol. II. 
An Enquiry Concerning Political Justice, and its Influence on General Virtue and Happiness, vol. 2 (London: G.G.J. and J. Robinson, 1793).
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distinction of regulations constituent and legislative.—supposed character of permanence that ought to be given to the former—inconsistent with the nature of man.—source of the error.—remark.—absurdity of the system of permanence.—its futility.—mode to be pursued in framing a constitution.—constituent laws not more important than others.—in what manner the consent of the districts is to be declared.—tendency of the principle which requires this consent.—it would reduce the number of constitutional articles—parcel out the legislative power—and produce the gradual extinction of law.—objection.—answer.
book vi. chap. vii Distinction of regulations constituent and legislative.An article intimately connected withthe political consideration of opinion is suggestedto us by a doctrine which has lately been taught relativelyto constitutions. It has been said that the laws ofevery regular state naturally distribute themselvesunder two heads, fundamental and adscititious; laws, the object of whichis the distribution of political power andbook vi. chap. vii directingthe permanent forms according to which public businessis to be conducted; and laws, the result of the deliberationsof powers already constituted. This distinction being establishedSupposed character of permanence that ought to be given to the former: in the first instance, it has been inferred, that these laws are of very unequal importance, andthat of consequence those of the first class oughtto be originated with much greater solemnity, and tobe declared much less susceptible of variation thanthose of the second. The French national assembly of1789 pushed this principle to the greatest extremity, and seemed desirous of providing every imaginable securityfor rendering the work they had formed immortal. Itcould not be touched upon any account under the termof ten years; every alteration it was to receive mustbe recognised as necessary by two successive nationalassemblies of the ordinary kind; after these formalitiesan assembly of revision was to be elected, and theyto be forbidden to touch the constitution in any otherpoints than those which had been previously markedout for their consideration.
It is easy to perceive that these precautions are in direct hostilityinconsistent with the nature of man. with the principles established in this work. “Man and for ever!” was the motto of the labours of this assembly. Just broken loose from the thick darkness of an absolute monarchy, they assumed to prescribe lessons of wisdom to all future ages. They seem not so much as to have dreamed of that purification of intellect, that climax of improvement, which may very probably book vi. chap. vii be the destiny of posterity. The true state of man, as has been already demonstrated, is, not to have his opinions bound down in the fetters of an eternal quietism, but flexible and unrestrained to yield with facility to the impressions of increasing truth. That form of society will appear most perfect to an enlightened mind, which is least founded in a principle of permanence. But, if this view of the subject be just, the idea of giving permanence to what is called the constitution of any government, and rendering one class of laws, under the appellation of fundamental, less susceptible of change than another, must be founded in misapprehension and error.
Source of the error. The error probably originally sprung out of the forms of political monopoly which we see established over the whole civilised world. Government could not justly derive in the first instance but from the choice of the people; or, to speak more accurately (for the former principle, however popular and specious, is in reality false), government ought to be adjusted in its provisions to the prevailing apprehensions of justice and truth. But we see government at present administered either in whole or in part by a king and a body of noblesse; and we reasonably say that the laws made by these authorities are one thing, and the laws from which they derived their existence another. But we do not consider that these authorities, however originated, are in their own nature unjust. If we had never seen arbitrary and capricious forms of government, we should probably never have thought of cutting off certain laws from the code under thebook vi. chap. vii name of constitutional. When we behold certain individuals or bodies of men exercising an exclusive superintendence over the affairs of a nation, we inevitably ask how they came by their authority, and the answer is, By the constitution. But, if we saw no power existing in the state but that of the people, having a body of representatives, and a certain number of official secretaries and clerks acting in their behalf, subject to their revisal, and renewable at their pleasure, the question, how the people came by this authority, would never have suggested itself.
A celebrated objection that has been urged against the governmentsRemark. of modern Europe is that they have no constitutions1. . If by this objection it be understood, that they have no written code bearing this appellation, and that their constitutions have been less an instantaneous than a gradual production, the criticism seems to be rather verbal, than of essential moment. In any other sense it is to be suspected that the remark would amount to an eulogium, but an eulogium to which they are certainly by no means entitled.
But to return to the question of permanence. Whether weAbsurdity of the system of permanence. admit or reject the distinction between constitutional and ordinary legislation, it is not less true that the power of a people book vi. chap. vii to change their constitution morally considered, must be strictly and universally coeval with the existence of a constitution. The language of permanence in this case is the greatest of all absurdities. It is to say to a nation, “Are you convinced that something is right, perhaps immediately necessary, to be done? It shall be done ten years hence.”
The folly of this system may be farther elucidated, if farther elucidation be necessary, from the following dilemma. Either a people must be governed according to their own apprehensions of justice and truth, or they must not. The last of these assertions cannot be avowed, but upon the unequivocal principles of tyranny. But, if the first be true, then it is just as absurd to say to a nation, This government, which you chose nine years ago, is the legitimate government, and the government which your present sentiments approve the illegitimate; as to insist upon their being governed by the dicta of their remotest ancestors, or even of the most insolent usurper.
Its futility. It is extremely probable that a national assembly chosen in the ordinary forms, is just as much empowered to change the fundamental laws, as to change any of the least important branches of legislation. This function would never perhaps be dangerous but in a country that still preserved a portion of monarchy or aristocracy, and in such a country a principle of permanence would be found a very feeble antidote against the danger. The true principle upon the subject is, that no assembly, thoughbook vi. chap. vii chosen with the most unexampled solemnity, has a power to impose any regulations contrary to the public apprehension of right; and a very ordinary authority, fairly originated, will be sufficient to facilitate the harmonious adoption of a change that is dictated by national opinion. The distinction of constitutional and ordinary topics will always appear in practice unintelligible and vexatious. The assemblies of more frequent recurrence will find themselves arrested in the intention of conferring any eminent benefit on their country, by the apprehension that they shall invade the constitution. In a country where the people are habituated to sentiments of equality and where no political monopoly is tolerated, there is little danger that any national assembly should be disposed to inforce a pernicious change, and there is still less that the people should submit to the injury, or not possess the means easily and with small interruption of public tranquillity to avert it. The language of reason on this subject is, “Give us equality and justice, but no constitution. Suffer us to follow without restraint the dictates of our own judgment, and to change our forms of social order as fast as we improve in understanding and knowledge.”
The opinion upon this head most popular in France at theMode to be pursued in framing a constitution. time that the national convention entered upon its functions, was that the business of the convention extended only to the presenting a draught of a constitution, to be submitted in the book vi. chap. vii sequel to the approbation of the districts, and then only to be considered as law. This opinion is well deserving of a serious examination.
Constituent laws not more important than others. The first idea that suggests itself respecting it is, that, if constitutional laws ought to be subjected to the revision of the districts, then all laws ought to undergo the same process, understanding by laws all declarations of a general principle to be applied to particular cases as they may happen to occur, and even including all provisions for individual emergencies that will admit of the delay incident to the revision in question. It is an egregious mistake to imagine that the importance of these articles is in a descending ratio from fundamental to ordinary, and from ordinary to particular. It is possible for the most odious injustice to be perpetrated by the best constituted assembly. A law rendering it capital to oppose the doctrine of transubstantiation, would be more injurious to the public welfare, than a law changing the duration of the national representative, from two years, to one year or to three. Taxation has been shown to be an article rather of executive than legislative administration2. ; and yet a very oppressive and unequal tax would be scarcely less ruinous than any single measure that could possibly be devised.
In what manner the consent of the districts is to be declared. It may farther be remarked that an approbation demanded from the districts to certain constitutional articles, whether more or less numerous, will be either real or delusive accordingbook vi. chap. vii to the mode adopted for that purpose. If the districts be required to decide upon these articles by a simple affirmative or negative, it will then be delusive. It is impossible for any man or body of men, in the due exercise of their understanding, to decide upon any complicated system in that manner. It can scarcely happen but that there will be some things that they will approve and some that they will disapprove. On the other hand, if the articles be unlimitedly proposed for discussion in the districts, a transaction will be begun to which it is not easy to foresee a termination. Some districts will object to certain articles; and, if these articles be modelled to obtain their approbation, it is possible that the very alteration introduced to please one part of the community, may render the code less acceptable to another. How are we to be assured that the dissidents will not set up a separate government for themselves? The reasons that might be offered to persuade a minority of districts to yield to the sense of a majority, are by no means so perspicuous and forcible, as those which sometimes persuade the minority of members in a given assembly to that species of concession.
It is desirable in all cases of the practical adoption of anyTendency of the principle which requires this consent. given principle, that we should fully understand the meaning of the principle, and perceive the conclusions to which it inevitably leads. This principle of a consent of districts has an immediate tendency, by a salutary gradation perhaps, to lead to the dissolution book vi. chap. vii of all government. What then can be more absurd, than to see it embraced by those very men, who are at the same time advocates for the complete legislative unity of a great empire? It is founded upon the same basis as the principle of private judgment, which it is to be hoped will speedily supersede the possibility of the action of society in a collective capacity. It is desirable that the most important acts of the national representatives should be subject to the approbation or rejection of the districts whose representatives they are, for exactly the same reason as it is desirable, that the acts of the districts themselves should, as speedily as practicability will admit, be in force only so far as relates to the individuals by whom those acts are approved.
It would reduce the number of constitutional articles: The first consequence that would result, not from the delusive, but the real establishment of this principle, would be the reduction of the constitution to a very small number of articles. The impracticability of obtaining the deliberate approbation of a great number of districts to a very complicated code, would speedily manifest itself. In reality the constitution of a state governed either in whole or in part by a political monopoly, must necessarily be complicated. But what need of complexity in a country where the people are destined to govern themselves? The whole constitution of such a country ought scarcely to exceed two articles; first, a scheme for the division of the whole into parts equal in their population, and, secondly, the fixing of stated periods for the election of a national assembly: not to say that the latter of these articles may very probably be dispensedbook vi. chap. vii with.
A second consequence that results from the principle of whichparcel out the legislative power: we are treating is as follows. It has already appeared, that the reason is no less cogent for submitting important legislative articles to the revisal of the districts, than for submitting the constitutional articles themselves. But after a few experiments of this sort, it cannot fail to suggest itself, that the mode of sending laws to the districts for their revision, unless in cases essential to the general safety, is a proceeding unnecessarily circuitous, and that it would be better, in as many instances as possible, to suffer the districts to make laws for themselves without the intervention of the national assembly. The justness of this consequence is implicitly assumed in the preceding paragraph, while we stated the very narrow bounds within which the constitution of an empire, such as that of France for example, might be circumscribed. In reality, provided the country were divided into convenient districts with a power of sending representatives to the general assembly, it does not appear that any ill consequences would ensue to the common cause from these districts being permitted to regulate their internal affairs, in conformity to their own apprehensions of justice. Thus, that which was at first a great empire with legislative unity, would speedily be transformed into a confederacy of lesser republics, with a general congress or Amphictyonic council, answering the purpose of a point of cooperation book vi. chap. vii upon extraordinary occasions. The ideas of a great empire and legislative unity are plainly the barbarous remains of the days of military heroism. In proportion as political power is brought home to the citizens, and simplified into something of the nature of parish regulation, the danger of misunderstanding and rivalship will be nearly annihilated. In proportion as the science of government is divested of its present mysterious appearances, social truth will become obvious, and the districts pliant and flexible to the dictates of reason.
and produce the gradual extinction of law. A third consequence sufficiently memorable from the same principle is the gradual extinction of law. A great assembly, collected from the different provinces of an extensive territory, and constituted the sole legislator of those by whom the territory is inhabited, immediately conjures up to itself an idea of the vast multitude of laws that are necessary for regulating the concerns of those whom it represents. A large city, impelled by the principles of commercial jealousy, is not slow to digest the volume of its by-laws and exclusive privileges. But the inhabitants of a small parish, living with some degree of that simplicity which best corresponds with the real nature and wants of a human being, would soon be led to suspect that general laws were unnecessary, and would adjudge the causes that came before them, not according to certain axioms previously written, but according to the circumstances and demand of each particular cause.—It was proper that this consequence should be mentioned in this place. The benefits that will arise from the abolition ofbook vi. chap. vii law will come to be considered in detail in the following book.
The principal objection that is usually made to the idea ofObjection. confederacy considered as the substitute of legislative unity, is the possibility that arises of the members of the confederacy detaching themselves from the support of the public cause. To give this objection every advantage, let us suppose that the seat of the confederacy, like France, is placed in the midst of surrounding nations, and that the governments of these nations are anxious by every means of artifice and violence to suppress the insolent spirit of liberty that has started up among this neighbour people. It is to be believed that even under these circumstances the dangerAnswer. is more imaginary than real. The national assembly, being precluded by the supposition from the use of force against the malcontent districts, is obliged to confine itself to expostulation; and it is sufficiently observable that our powers of expostulation are tenfold increased the moment our hopes are confined to expostulation alone. They have to describe with the utmost perspicuity and simplicity the benefits of independence; to convince the public at large, that all they intend is to enable every district, and as far as possible every individual, to pursue unmolested their own ideas of propriety; and that under their auspices there shall be no tyranny, no arbitrary punishments, such as proceed from the jealousy of councils and courts, no exactions, almost no taxation. Some ideas respecting this last subject will speedily occur. book vi. chap. vii It is not possible but that, in a country rescued from the inveterate evils of despotism, the love of liberty should be considerably diffused. The adherents therefore of the public cause will be many: the malcontents few. If a small number of districts were so far blinded as to be willing to surrender themselves to oppression and slavery, it is probable they would soon repent. Their desertion would inspire the more enlightened and courageous with additional energy. It would be a glorious spectacle to see the champions of the cause of truth declaring that they desired none but willing supporters. It is not possible that so magnanimous a principle should not contribute more to the advantage than the injury of their cause.
[1.]Rights of Man.
[2.]Book V, Chap. I.