« PrécédentContinuer »
to assert the rights of the people as a whole, to declare that power comes from and ultimately resides in the nation, that the State and its 'rulers' are but the creatures, as it were, of the popular will. That the principle of the sovereignty of the people should be insisted on by the American Colonies, once they had rejected the authority of England, was nothing strange. Such a step seemed only the solemn recognition of the actual facts. But in France the same doctrine was put forward, though perhaps not with complete absence of regard for the descendant of the long line of Capetian kings. The principle of all sovereignty resides
* essentially in the nation. No body nor individual may exercise any authority that does not proceed directly from the nation. This does not sound quite so vigorous nor so free from ambiguity as the Virginian pronouncement : All power is vested in, and consequently derived from, the people ; magistrates are their trustees and servants and at all times amenable to them.'1 The democratic character of the State is also revealed in the preamble of the Massachusetts Constitution dealing with the contractual basis of the State, to which reference has been already made. But, of course, this democratic conception of the body-politic was common to all the thirteen States.
The ultimate authority, on this view, resides in the people, and the exercise of it by others is only to be regarded as a merely delegated power, which may be withdrawn by those who conferred it. The various officials are but the servants of the people and may be held responsible for their conduct.' The public force which is necessary for the protection of the State and the maintenance of order belongs to the nation and not to any man or body of men, to whom it may be necessary to entrust the command.
1 Cf. Mass. v.
In the French Declaration there is no reference to a revision of the Con. stitution. The last paragraph of Lafayette's project dealt with this matter. He does albo Title VII. of the Constitution of 1791. Virginia has the following declaration : ‘III. That all government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community, of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration ; and that when a govern. ment shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such a manner as shall be judged most conducive to the public weal.'
8 The French Constitution of 1791 made the King inviolablo, a not un. natural concession to facta.
• France III., Penn. V. VOL. 13
The laws-to be made for the good of all-are not the edicts of an arbitrary autocracy, but must be enacted by the people or their representatives. Similarly, no taxation is legal which has not been passed by the people or their representatives.
There remains the doctrine so dear to the hearts of eighteenth-century political thinkers, and for which the influence of Montesquieu's mistaken view of the British Constitution did so much to gain acceptance—the doctrine of the 'separation of the powers.' 'In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them, to the end that it may be a government of laws not of men.'
This principle, accepted by the revolting colonies and adopted into the constitution of the United States, has produced one of the most remarkable features which distinguishes the form of its central government from that which in the nineteenth century prevailed in England and in many countries in Western Europe, such as France and Belgium. In these countries, as is well known, the ‘ministry' or executive government is generally chosen from and must possess the confidence of the majority in the lower house of legislature. In America, the tenure of office of the President and his ministers is unaffected by the fact that his party in the House of Representatives or the Senate is in a hopeless minority.
It may be also well to note that it is this same principle, combined with the extreme jealousy of the executive, that must bear the blame for much of the anarchy and chaos of the opening years of the Revolution in France. It made the selection of a ministry from the bosom of the National
1 Cf. France VI., Md. V., N.H. XII. France uses the difficult phrase of Rousseau : ‘Law is the expression of the General Will.'
2 Mass. XXX. The French counterpart is much more briefly conceived : 'Art. XVI. Every society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution.' Virginia v. has an interesting provision : 'That the legislative, executive, and judicial powers should be separate and distinct ; and that the members thereof may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all or any part of the former members are to be again eligible or ineligible, as the laws shall direct.'
Assembly impossible. Thus an opportunity was lost of establishing confidence between that body and the King. Seeing in the Executive, represented by the King, the past, and if circumstances should permit it, perhaps the future foe of liberty, the National Assembly did everything to weaken its power, loading it with the full responsibility of government whilst depriving it of every means of successfully fulfilling its task. These views prevailed when, on November 7, 1789, Mirabeau's motion that the ministers be chosen from the National Assembly was defeated-one of the most fateful resolutions of that body.
Thus an examination of the Declarations of America and France shows that their political ideas were essentially the same. The advantage, if advantage it be, in definiteness and thoroughness is generally on the side of the Americans. This will not appear so strange if we remember that in the August of 1789 the Revolution had not as yet broken with the King, that of the members of the National Assembly one-half represented the two 'privileged ' orders, the Clergy and the Nobility, and that the conservative element in that body had not as yet withdrawn and was not entirely without influence. Å certain vagueness of language was necessary, or at least politic.
But although the ideas were essentially the same, the history of the last hundred years has not placed the emphasis among the separate articles in the same way in France as in America. In America, after the successful issue of the struggle against George III and his Parliament, those clauses which proclaimed the doctrine of the sovereignty of the people, were so unquestioned, were so embedded at the root of American political life, that it was no longer necessary to insist on them as on propositions whose validity was called in question. In France, on the other hand-and in Europe as a whole-owing to the failure of the Revolution to establish political liberty, they continued throughout the greater portion of the nineteenth century to form one of the two great principles of revolution --the other being that of nationality.
A further circumstance must also be taken into account. In America the laws of any State which are in conflict with the Constitution of the State or with the Constitution or laws of the Union may be questioned before a court and declared null and void. Thus some of the most interesting provisions of an American Constitution are those articles which withdraw certain fields from the activity of the ordinary legislative body. In France, and in the other countries of Europe which adopted Declarations of Rights into their Constitutions, the courts do not exercise any such function. Hence the attempts by means of these Declarations to guard the fundamental rights of the individual or of minorities have not met with much success. Hasty legislation too easily puts an end to the guarantees. In France, as is well known, the year 1789 had not run its course before some of the provisions of the Declaration were flagrantly violated,' and the subsequent years were destined to bring graver disappointments still.
Yet the uselessness of such Declarations, without legal means to enforce them, was far from being universally recognized. Robespierre had his projects and a radical Declaration prefaced the Constitution of 1793—that Constitution which was so satisfactory in securing the rights of Democracy that its operation had to be postponed till the end of the war, whilst the actual
the actual government of France continued revolutionary.
If the dominant party in a State are determined to violate their most solemn pledges a Declaration of Rights is hardly likely to stand in their way. Logic and abstract theory can no more supply the place of public spirit and morality than they can of experience and sound judgment. But the Americans may urge that by giving constitutional enactments power to annul laws that conflict with them, by throwing difficulties in the way of constitutional, which are absent from that of ordinary, legislation, and by making it the business of a different body, generally the people themselves, they have at least done something to prevent, or at least impede, flagrant injustice at the hands of any faction, momentarily dominant.
Perhaps, also, the ideal of individual liberty occupies a comparatively larger place in the American than it does in the French programme. Even the language of the Declarations
1 The following consecutive paragraphs from the 'Guaranteed Rights' of the Constitution of 1791 are instructive : The Constitution guarantees the inviolability of property and the just and previous indemnity for any such property, of which public necessity, legally proved, may demand the sacrifice.'
The property destined for the expenses of Divine worship and all services of public utility belong to the nation, and are at all times at its disposition.' Between the August of 1789 and the date of this law the property of the Church had been confiscated.
2 Cf. speech delivered April 29, 1793. • It never came into force.
seems to suggest this. The French are more inclined to condition their pronouncements by clauses intended to safeguard the public weal. Such conditions make it more easy for the evilly-disposed to employ reason of State.'' The welfare of the State' has ever been the motto of tyrants. Furthermore, the men of 1789 seemed less conscious of the danger that laws duly enacted by the representatives of the nation may be oppressive. This partial blindness was natural. Both Democracy and Individual Liberty had to be fought for against the same foes—privilege and autocracy. For the moment they were allies, and occasionally apt to forget that they might become rivals.
The strong national feeling of the French, the whole past history of France, would tend to diminish the relative importance of the rights of the individual. To the descendants of seventeenth- and eighteenth-century Englishmen, in many of whom the spirit of adventure was still strong, individual liberty may well have seemed the greatest of political blessings. This was a lesson which both the weak
. ness and the strength of English political life would serve to teach. In a new country of unknown extent, with unbounded resources, governmental interference would seem a hindrance rather than a help; it must be reduced to a minimum ; individual enterprise should not be fettered..
It is not strange, then, that the determination to prevent the oppression of the individual and of minorities * should appear more successful in America. This and the evidence they afford of the beginning of that distrust felt by Americans towards their representatives one of the most interesting developments in the history of nineteenthcentury democracy-are what give a special interest to some of the provisions of the Bills of Rights.
J. M. O'SULLIVAN. (To be continued.)
1 According to Clermont-Tonnerre, one of the guarantees demanded in the Cahiers was that of the inviolability of the Post. There is no provision relating to this in the Declaration. But already in July, 1789, the matter had been discussed in a concrete case when letters to the brother of the King, the Count of Artois, were seized. He was suspected of being ' an enemy of liberty' and was 'emigrating.' Saould his lotiers be opened? The maitor came up on more than one occasion On the ono bide pin ipio was urgea, on the other Reason of Suato, Salus Populi. Robespierro denounced any regard for indi. viduals as treason to the people. The wholo debr-te is instructive. Cf. Moniteur, 1. 205 seq. 210, 224, 220.
• Cf. Kontucky Constitution, of 1891 : ‘Absolute arbitrary power over the liven, iib: rty, and property of frtemen exista nowhere in a republic, pot even in the largest majority.'