- Category: Court of the Ekklesia
OF THE CONSTITUTION OF A STATE, AND THE DUTIES AND RIGHTS OF THE NATION IN THIS RESPECT
We were unable to avoid in the first chapter, anticipating something of the subject of this.
§ 26. Of public authority.
We have seen already that every political society must necessarily establish a public authority to regulate their common affairs, — to prescribe to each individual the conduct he ought to observe with a view to the public welfare, and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.
§ 27. What is the constitution of a state.
The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body politic, how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.
§ 28. The nation ought to choose the best constitution.
The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to choose the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness: — it cannot take too much care in placing these on a solid basis.
§ 29. Of political, fundamental, and civil laws.
The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted, — those, in a word, which together form the constitution of the state, are the fundamental laws.
The civil laws are those that regulate the rights and conduct of the citizens among themselves.
Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws, — in establishing them, I say, with wisdom in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and that they may create, if possible, no dissension — that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty and their rights. It is not here necessary to consider in detail what that constitution and those laws ought to be: that discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.
§ 30. Of the support of the constitution and obedience to the laws.
The constitution and laws of a state are the basis of the public tranquility, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires.
It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of mankind: — impressed thenceforward with this excellent maxim (no less essential in politics than in morals) principiis obsta, — they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises.
§ 31. The rights of a nation with respect to its constitution and government.
The consequences of a good or bad constitution being of such importance, and the nation being strictly obliged to procure, as far as is possible, the best and most convenient one, it has a right to every thing necessary to enable it to fulfil this obligation (§ 18). It is then manifest that a nation has an indisputable right to form, maintain, and perfect its constitution, to regulate at pleasure every thing relating to the government, and that no person can have a just right to hinder it. Government is established only for the sake of the nation, with a view to its safety and happiness.
§ 32. It may reform the government.
If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government. But observe that I say "the nation;" for I am very fat from meaning to authorize a few malcontents or incendiaries to give disturbance to their governors by exciting murmurs and seditions. None but the body of a nation have a right to check those at the helm when they abuse their power. When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretense of reforming it.
§ 33. And may change the constitution.
In virtue of the same principles, it is certain that it the nation is uneasy under its constitution, it has a right to change it.
There can be no difficulty in the case, if the whole nation be unanimously inclined to make this change. But it is asked, what is to be done if the people are divided? In the ordinary management of the state, the opinion of the majority must pass without dispute for that of the whole nation: otherwise it would be almost impossible for the society ever to take any resolution. It appears then, by parity of reasoning, that a nation may change the constitution of the state by a majority of voles; and whenever there is nothing in this change that can be considered as contrary to the act of civil association, or to the intention of those united under it, the whole are bound to conform to the resolution of the majority. (22) But if the question be, to quit a form of government to which alone it appeared that the people were willing to submit on their entering into the bonds of society, — if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty, and resolved to submit to the authority of a monarch, — those citizens who are more jealous of that privilege, so invaluable to those who have tasted it, though obliged to suffer the majority to do as they please, are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.
§ 34. Of the legislative power, and whether it can change the constitution.
Here, again, a very important question presents itself. It essentially belongs to the society to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens: this is called the legislative power. The nation may intrust the exercise of it to the prince, or to an assembly and the prince jointly; who have then a right to make new laws and to repeal old ones.(23) It is asked, whether their power extends to the fundamental laws — whether they may change the constitution of a state? The principals we have laid down lead us to decide with certainty, that the authority of those legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them. For the constitution of the state ought to possess stability: and since that was first established by the nation, which afterwards intrusted certain persons with the legislative power, the fundamental laws are expected from their commission. It is visible that the society only intended to make provision for having the state constantly furnished with laws suited to particular conjunctures, and, for that purpose, gave the legislature the power of abrogating the ancient civil and political laws that were not fundamental, and of making new ones; but nothing leads us to think that it meant to submit the constitution itself to their will. In short, it is from the constitution that those legislators derive their power: how then can they change it without destroying the foundation of their own authority? By the fundamental laws of England, the two houses of parliament, in concert with the king, exercise the legislative power: but, if the two houses should resolve to suppress themselves, and to invest the king with full and absolute authority, certainly the nation would not suffer it. And who would dare to assert that they would not have a right to oppose it? But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives.
§ 35. The nation ought not to attempt it without great caution.
But in treating here of the change of the constitution, we treat only of the right: the question of expediency belongs to politics. We shall therefore only observe in general, that great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing, how to enjoy it.
§ 36. It is the judge of all disputes relating to the government.
We may conclude from what has been said (§ 33), that if any disputes arise in a state respecting the fundamental laws, the public administration, or the rights of the different powers of which it is composed, it belongs to the nation alone to judge and determine them conformably to its political constitution.
§ 37. No foreign power has a right to interfere.
In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury.
(22) In 1 Bla. Com, 51-2, it is contended, that, unless in cases where the natural law or conscience dictates the observance of municipal laws, it is optional, in a moral view, to observe the positive law, or to pay the penalty where detected in the breach: but that doctrine, as regards the moral duty to observe laws, has been justly refuted. See Sedgwick's Commentaries, 61; 2 Box. & Pul. 375; 5 Bar. & Ald. 341; sed vide 13 Ves. jun. 215, 316. — C.
(23) Thus, during the last war, English acts of Parliament delegated to the king in council all the power of making temporary orders and laws regulating commerce. So by a bill of 3 Will. 4, power was proposed to be given to eight of the judges to make rules and orders respecting pleading, these not being considered unconstitutional delegations of powers of altering the fundamental laws, part of the constitution itself; but even then, the rules or orders so made are not absolutely to become law until they have been submitted to, and not objected against in parliament during six weeks. — C.