Émile Boutmy

“ Almost up to our own times the English nation has never conceived of itself as independent or distinct from these bodies. Sovereignty belonged now to the Crown, now to the Lords, now to the Commons, and because it was attracted by each of these permanent and powerful bodies in turn, it was never ascribed to the whole collective body of individual citizens. ”

“ In France, since 1789, this majority has been in fact the sole and necessary source of all legitimate authority. The existing powers are all creations of this majority, and all are based on the constitution which is its work. Any power which is suspected of not representing it, or of misrepresenting it, loses in a sense, its justification for existence, and is marked out by this want of harmony for immediate destruction or transformation. ”

“ Naturally they would expect that such an edifice, simple, elegant, imposing from the harmony of the whole, and the perfection of detail, would carry prestige with it, and last for centuries. These characteristics are in fact guarantees of solidity, though not the most secure ones; they appeal only to the reasoning powers. But after all it is wise to have recourse to them when one is deprived of the other guarantees derived from custom. French constitution makers, therefore, have done the work of logicians, engineers, and artists. Logic is the soul of their creations. ”

“ The philosopher, gazing down from the dreamlike heights of public power upon the crowd of human atoms, necessarily feels that he has the right to dispose of them despotically without much caring to humour their prejudices. French constitutions further appeal to a people brought back to the indefinite state of nature by the fall of their historical institutions, and gifted anew with an extraordinary plasticity by the ruin of the strong old framework which held the citizens together in fixed compact aggregates. ”

“ The Constitution of 1787–89 left the separate States standing side by side with the federal powers which it created. The States have each continued to live their own separate life; they look with suspicion upon one another and group themselves into rival factions. The States, by an act of prudent self-abnegation, created a superior authority, and the rival factions, have each in their turn, either used it as a means for securing their own domination, or look upon it as a rock of offence. ”

“ In the United States, as in England, custom has the authority of law. The constitutional history of the United States is as obviously as the constitutional history of England the record of an attempt to close political contests by means of treaties. ”

“ In this also Anglo-Saxon constitutional law resembles a treaty. Both in England and in the United States, side by side with special and definite constitutional documents, a large field is occupied by custom, by supplementary legislation, and by local law; thus changes and adaptations which the course of time renders necessary, are prudently and, so to speak, noiselessly provided for. Hence on each occasion for change, naturally much less is at stake than if it were necessary solemnly to modify the fundamental provisions of the Constitution. ”

“ When analysed to its very source sovereignty rests on the individual alone; public power has authority only because the individual gives up a part of his natural liberty, supposed to be unlimited, and of which he can keep as much as seems good to him. Hence no constitutions abound so much as those of France in decided and emphatic assertions as to the rights of individual citizens. The chief leaning of the French constitution makers is all in this direction. ”

“ Hence they do not, even to-day, possess that individual life, I might almost say that consciousness of personality, which local institutions derive, and derive only, from long years of existence, and from the moderation or the neglect, much more than from the favour or the gifts, of their rulers. They possess, as I said, no individual life. It is the national life which runs through them, it is the consciousness of the national spirit, which sustains and directs their officials. ”

“ The principle that political rights are a personal attribute of the individual citizen, leads necessarily to the consequence that the will of the majority of the citizens is sovereign. Now the chief article of the Constitution concerning the composition of the Senate completely contradicts this latter principle. All the States, however unequal the number of their population, are each represented by two members in the Senate. There we have equality among the States but not among the citizens. ”

“ But this zeal for individual liberty is only the first of two tendencies. After the state has been created by the will of all these human atoms, a second tendency in the opposite direction becomes apparent. This Leviathan — the state (or rather those who act in its name) — begins to be conscious of the greatness of its strength in comparison to the weakness of everything that surrounds it; of duties in proportion to this power, and of rights co-extensive with the duties. It tries instinctively to have an aim and an object worthy of the enormous means at its disposal ”

“ In all societies, thanks to the improved means of communication and the activity of commerce, distant regions are brought nearer, their inhabitants mingle together, and tend to lose the feeling of a separate life and destiny. Everywhere we see a daily diminution of the differences between localities, persons, ideas, and interests. In fact everything which serves as framework or support to special or partial groups, intermediate between the State and the individual, has received a shock, and has been undermined or destroyed. ”

“ As to active political rights, the Federal Constitution assures their possession only to the ancient sovereign bodies known as States. The only possessors of active political rights, according to the Federal Constitution, are the States. Citizens as individuals have no share in the sovereign authority. To give one proof only, and that a very striking one, I remind my readers that there are in strictness, under the working of the Federal Constitution, no federal electors. The central power does not go down to matters so fundamental as the question of franchise. ”

“ The strongest reason for existence and self-reliance in the case of a collective body, that which proceeds from the fact of length of days, could not enter into their being and develop the instinct for personal rights independent of statutes and laws. Since 1789 we may say that there have been in France individuals who were kings, but there has been no royalty, if by that term we mean to describe a perpetual corporation represented at any given moment by a single individual, who receives from it something beyond his own value, his own responsibility, and his own personal credit. ”

“ The determination of individual rights is then the first and principal question which came before the French legislator; all French political history gives evidence of its priority and pre-eminence. From this question we have derived a very simple and very precise conception of sovereignty. The nation, for reasons which have been explained, cannot, in France, be anything but the whole body of citizens. Theoretically, sovereignty is the will of all the citizens, and practically it comes to be the will of the numerical majority. ”

“ Compared to these great and permanent powers, the changing and insignificant body of citizens sinks to nothing. In the eye of the English Constitution the citizens as individuals do not attain to political rights, such rights are vested in the three members of the sovereign body, or in corporations as old and independent. ”

“ The people had to create new powers, so to say, out of nothing — to invent and constitute a whole new political society. These facts are too well known to require dwelling upon. I only note this much: in France every power, every established authority, dates from the revolutionary constitutions — from them it proceeds, from them it derives its title. In the case of subordinate officers, their title to authority, originally inserted in the constitution itself, has been in later times derived from laws made in virtue of powers given by the constitution. ”

“ Thus it was that the consciousness of a distinct life, and a right independent of all positive grant, in the long run developed an immense number of great and small local and special authorities, such as universities, ecclesiastical corporations, boroughs, parish vestries, and chartered bodies. Created one by one, each body remained more or less independent of the others; not one of them was content to take rank passively in a co-ordinated whole, nor to feel itself strictly dependent on an organization, which was itself subject to the general welfare. ”

“ Our philosopher must feel that he has more than enough power to stir up these heaps of human atoms according to his fancy, to bind them together, or to divide them in different ways — in fact to mould them into what he happens to think the best form. ”

“ Whatever criticism may be passed on the Declaration of Rights of 1789, the fact will always remain that the resounding fame of these memorable axioms has rendered this great service to the world, viz., that the principles of liberty and equal justice for all, up to that time locked up in maxims of philosophers and aphorisms of society, became thenceforth indispensable articles of all constitutional legislation. ”

“ To-day, owing to the existence of almost universal suffrage, the will of the people is condensed and embodied in a legal organ, viz., Parliament. Popular will acts upon the law and upon the government like a powerful and regular spring, presses and bears upon the right spot, and thus produces with perfect certainty the desired movement of the political mechanism. ”

“ The intemperance of Parliament and of the public powers in making laws and regulations, the existence and the exaggerated activity of the special administrative courts in which the state appears both as judge and party, are two facts which show most clearly this tendency to hold private interests and liberties of slight account, and to set up a conscientious despotism of public interests. England, and, in the federal sphere, the United States, have suffered less than France from the first of these evils ”

“ Slow changes, careful transitions, which follow and reflect the natural progress of events; half concealed and almost unconscious transformations, which do not run counter to consecrated formulas until innovation has secretly gained over the instincts of the people, and has allied itself with long custom — all these different forms of growth take place more easily in England, and even in the United States, than in France. ”

“ In England, all the foreground of the political scene is occupied by ancient corporate bodies, national or local, which, on account of their greatness and their cohesion, have secured a basis of their own within the body of the nation, halfway between the individual and the state. ”

“ Now, the object of a treaty between living powers is always to give securities to each other. It may happen that they both fall under a predominant power which absorbs them, but it is never the object of a treaty to create such a power; the most in this respect that parties to a treaty can propose to themselves (and this is what happened in the United States) is to create an arbitrator with limited authority, who may preserve harmony between the parties. ”

“ The rights of the individual, the first thesis of the constitution, and the recognized source of all legitimate power, too often fade away during the supremacy of this second tendency, and sink to nothing before this despotic ideal. ”

“ There is no fulcrum outside the majority, and therefore there is nothing on which, as against the majority resistance or lengthened opposition can lean. This is why all French political systems always gravitate automatically and rapidly towards unity and homogeneity of powers. The progress of enlightenment and of wisdom are the only resources against this kind of instinct inherent in French institutions. In fact there is no internal and spontaneous action which could be roused in these institutions to oppose the strong current which carries them on in their accustomed path. ”

“ In the same sphere the formula of sovereignty is a mixed one; the supreme power does not belong solely to the numerical majority of individuals, it belongs also, and in greater part, to the numerical majority of thirty-eight powerful corporate bodies. The States, and not the individual citizens, are the real members of the state, the integrant parts and organic elements, as it were, of the body politic. ”

“ The spirit of system does not extend over the domain of diplomacy — a sphere of which the limits are ever shifting under the influence of force and of will. The principle that politics are to be treated in the spirit of a treaty is universally and indisputably recognized in England, of this I have already given proofs. The recognition of this principle is less evident in the Constitution of the United States. In appearance, the Federal Constitution aims at being a well-ordered composition ”

“ Logic will in consequence be forced to rely on its own resources alone, and from these, combined with a more complete and minute knowledge than now exists of the objects aimed at by a constitution, will have to provide those checks on sudden change which policy now draws from custom, tradition, and other sentiments which do not originate in the rational part of human nature but are derived from past history. ”

“ In England the partial or special groups, and the powers which rule them, date from far back in the past, and each one for itself derives the most undeniable part of its authority from long possession. ”