3. Constitutional Principles and their Varieties

{317} IT is a common saying that political power is founded on opinion; this is true, if the word "opinion" be understood in the widest sense of which it is capable. A State depends and rests, not simply on force of arms, not on logic, not on anything short of the sentiment and will of those who are governed. This doctrine does not imply instability and change as inherent characteristics of a body politic. Since no one can put off his opinions in a moment, or by willing it, since those opinions may be instincts, principles, beliefs, convictions, since they may be self-evident, since they may be religious truths, it may be easily understood how a national polity, as being the creation and development of a multitude of men having all the same opinions, may stand of itself, and be most firmly established, and may be practically secure against reverse. And thus it is that countries become settled, with a definite form of social union, and an ascendancy of law and order; not as if that particular settlement, union, form, order, and law were self-sanctioned and self-supported, but because it is founded in the national mind, and maintained by the force of a living tradition. This, then, is what I mean by a State; and, being the production and outcome of a people, it is necessarily for the good of the people, and it has two main elements, power and liberty,—for without power there is no protection, and without liberty there is {318} nothing to protect. The seat of power is the Government; the seat of liberty is the Constitution.

You will say that this implies that every State must have a Constitution; so I think it has, in the sense in which I have explained the word. As the governing power may be feeble and unready, so the check upon its arbitrary exercise may be partial and uncertain; it may be rude, circuitous, abrupt, or violent; it need not be scientifically recognized and defined; but there never has been, there never can be, in any political body, an instance of unmitigated absolutism. Human nature does not allow of it. In pure despotisms, the practical limitation of the ruler's power lies in his personal fears, in the use of the dagger or the bowstring. These expedients have been brought into exercise before now, both by our foes, the Russians, and, still more so, by our friends, the Turks. Nay, when the present war began, some of our self-made politicians put forward the pleasant suggestion that the Czar's assassination at the hands of his subjects, maddened by taxes and blockades, was a possible path to the triumph of the allies.

Such is the lawless remedy which nature finds for a lawless tyranny; and no one will deny that such a savage justice is national in certain states of Society, and has a traditional authority, and may in a certain sense be called Constitutional. As society becomes civilized, the checks on arbitrary power assume a form in accordance with a more cultivated morality. We have one curious specimen of a Constitutional principle, preserved to us in the Medo-Persian Empire. It was a wholesome and subtle provision, adopting the semblance of an abject servility suitable to the idea of a despotism, which proclaimed the judgment of the despot infallible, and his word irrevocable. Alexander felt what it was {319} to do irrevocable acts in the physical order, when, in the plenitude of his sovereignty, he actually killed his friend in the banquet; and, as to the vulgar multitude, this same natural result, the remedy or penalty of reckless power, is expressed in the unpolite proverb, "Give a rogue rope enough, and he will hang himself." With a parallel significance, then, it was made a sacred principle among the Medo-Persians, which awed and sobered the monarch himself, from its surpassing inconvenience, that what he once had uttered had the force of fate. It was the punishment of his greatness, that, when Darius would have saved the prophet Daniel from the operation of a law, which the king had been flattered into promulgating, he could not do so.

A similar check upon the tyranny of power, assuming the character of veneration and homage, is the form and etiquette which is so commonly thrown round a monarch. By irresistible custom, a ceremonial more or less stringent has been made almost to enter into his essential idea, for we know majesty without its externals is a jest; and, while to lay it aside is to relinquish the discriminating badge which is his claim upon the homage of his subjects, to observe it is to surrender himself manicled and fettered into their hands. It is said a king of Spain was roasted to death because the proper official was not found in time to wheel away his royal person from the fire. If etiquette hindered him from saving his own life, etiquette might also interpose an obstacle to his taking the life of another. If it was so necessary for Sancho Panza, governor of Barataria, to eat his dinner with the sanction of the court physician on every dish, other great functionaries of State might possibly be conditions of other indulgences on his part which were less reasonable and less imperative. As for our own most gracious Sovereign, {320} she is honoured with the Constitutional prerogative that "the king can do no wrong;" that is, he can do no political act of his own mere will at all.

It is, then, no paradox to say that every State has in some sense a Constitution; that is, a set of traditions, depending, not on formal enactment, but on national acceptance, in one way or other restrictive of the ruler's power; though in one country more scientifically developed than another, or more distinctly recognized, or more skilfully and fully adapted to their end. There is a sort of analogy between the political and the physical sense of the word. A man of good constitution is one who has something more than life,—viz., a bodily soundness, organic and functional, which will bring him safely through hardships, or illnesses, or dissipations. On the other hand, no one is altogether without a constitution: to say he has nothing to fall back upon, when his health is tried, is almost to pronounce that his life is an accident, and that he may at any moment be carried off. And, in like manner, that must be pronounced no State, but a mere fortuitous collection of individuals, which has no unity stronger than despotism, or deeper than law.

I am not sure how far it bears upon the main proposition to which these remarks are meant to conduct us, but at least it will illustrate the general subject, if I ask your leave to specify, as regards the depository of political power, four Constitutional principles, distinct in kind from each other, which, among other parallel ones, have had an historical existence. If they must have names given them, they may be called respectively the principles of co-ordination, subordination, delegation, and participation.

1. As all political power implies unity, the word co-ordination may seem inconsistent with its essential idea: {321} and yet there is a state of society, in which the limitation of despotism is by the voice of the people so unequivocally committed to an external authority, that we must speak of it as the Constitution of such a State, in spite of the seeming anomaly. Such is the recognition of the authority of Religion, as existing in its own substantive institutions, external to the strictly political framework, which even in pagan countries has been at times successfully used to curb the extravagances of absolute power. Putting paganism aside, we find in the history both of Israel and of Judah the tyranny of kings brought within due limits by the priests and prophets, as by legitimate and self-independent authorities. The same has been the case in Christian times. The Church is essentially a popular institution, defending the cause and encouraging the talents of the lower classes, and interposing an external barrier in favour of high or low against the ambition and the rapacity of the temporal power. "If the Christian Church had not existed," says M. Guizot, "the whole world would have been abandoned to unmitigated material force." However, as the corrective principle is in this instance external to the State, though having its root internally in national opinion, it cannot, except improperly, be termed Constitutional.

2. Next I come to the principle of subordination, which has been commonly found in young, semi-barbarous states both in Europe and Asia, and has attained its most perfect form in what is called the Feudal System. It has had a military origin; and, after the pattern of an army, is carried out in an hierarchy of chiefs, one under the other, each of whom in consequence had direct jurisdiction only over a few. First came the suzerain, or lord paramount, who had the allegiance of a certain number of princes, dukes, counts, or even kings. These were his {322} feudatories,—that is, they owed him certain military services, and held their respective territories of him. Their vassals, in turn, were the barons, each under his own prince or duke, and owing him a similar service. Under the barons were the soldiers, each settled down on his own portion of land, with the peasants of the soil as his serfs, and with similar feudal duties to his own baron. A system like this furnished a most perfect expedient against absolutism. Power was distributed among many persons, without confusion or the chance of collision; and, while the paucity of vassals under one and the same rule gave less scope to tyrannical excesses, it created an effective public opinion, which is strongest when the relation between governor and governed is most intimate. Moreover, if any one were disposed to play the tyrant, there were several distinct parties in a condition to unite against him; the barons and lower class against the king, the king and the lower class against the barons. The barbarities of the middle ages have been associated in men's minds with this system; but, whatever they were, they surely took place in spite of it, not through it,—just as the anti-Catholic virulence of the present race of Englishmen is mitigated, not caused, by the British Constitution.

3. By the principle of delegation, I mean that according to which power is committed for a certain time to individuals, with a commensurate responsibility, to be met whenever that time has expired. Thus the Roman Dictator, elected on great emergencies, was autocrat during the term of his rule. Thus a commander of an army has unfettered powers to do what he will, while his command continues; or the captain of a ship; but afterwards his acts are open to inquiry, and, if so be, to animadversion. There are great {323} advantages to a system like this; it is the mode of bringing out great men, and of working great measures. You choose the fittest man for each department; you frankly trust him, you heap powers upon him, you generously support him with your authority, you let him have his own way, you let him do his best. Afterwards you review his proceedings; you reward or censure him. Such, again, in fact, is with us the liberty of the press, censorship being simply unconstitutional, and the courts of law, the remedy against seditious, libellous, or demoralizing publications. Here, too, your advantage is great; you form public opinion, and you ascertain the national mind.

4. The very opposite to this is the principle of participation. It is that by which a People would leave nothing to its rulers, but has itself, or by its immediate instruments, a concurrent part in everything that is done. Acting on the notion that no one is to be trusted, even for a time, and that every act of its officials is to be jealously watched, it never commits power without embarrassing its exercise. Instead of making a venture for the transcendent, it keeps fast by a safe mediocrity. It rather trusts a dozen persons than one to do its work. This is the great principle of boards and officers, engaged in checking each other, with a second apparatus to check the first apparatus, and other functionaries to keep an eye on both of them,—Tom helping Jack, and Jack waiting for Bill, till the end is lost in the means. Such seems to have been the principle of the military duties performed by the Aulic Council in Germany, which virtually co-operated with Napoleon in his victories in that country. Such is the great principle of committees of taste, which have covered this fair land with architectural monstrosities. And as being closely allied to the {324} principle of comprehension and compromise (a principle, necessary indeed, in some shape, but admitting of ruinous excess), it has had an influence on our national action in matters more serious than architecture or sculpture. And it has told directly upon our political efficiency.

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