A question intimately connected with the political superintendence of opinion is presented to us relative to a doctrine which has lately been taught upon the subject of constitutions. It has been said 'that the laws of every regular state naturally distribute themselves under two heads, fundamental and temporary; laws the object of which is the distribution of political power, and directing the permanent forms according to which public business is to be conducted; and laws the result of the deliberations of powers already constituted.' This distinction being established in the first instance, it has been inferred 'that these laws are of very unequal importance, and that, of consequence, those of the first class ought to be originated with much greater solemnity, and to be declared much less susceptible of variation, than those of the second'. The French national assembly of 1789 pushed this principle to the greatest extremity, and seemed desirous of providing every imaginable security for rendering the work they had formed immortal. It was not to be touched, upon any account, under the term of ten years; every alteration it was to receive must be recognized as necessary by two successive national assemblies of the ordinary kind;Chapter fter these formalities an assembly of revision was to be elected, and they to be forbidden to amend the constitution in any other points than those which had been previously marked out for their consideration.
It is easy to perceive that these precautions are in direct hostility 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 be the destiny of posterity. The true state of man, as has been already said, 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 accumulating observation and experience. That form of society will, of consequence, appear most eligible 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.
The error probably originally sprung out of the forms of political monopoly which we see established over the whole civilized world. Government could not justly flow, in the first instance, but from the choice of the people;Chapter r, perhaps more accurately speaking, ought to be adjusted in its provisions to the prevailing apprehensions of equity and truth. We see government as 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.
Now this, and indeed every species of exclusive institution, presents us with a dilemma, memorable in its nature, and hard of solution. If the prejudices of a nation are decisively favourable to a king or a body of noblesse, it seems impossible to say that a king, or a body of noblesse, should not form part of their government. But then, on the other hand, the moment you admit this species of exclusive institution, you counteract the purpose for which it was admitted, and deprive the sentiments of the people of their genuine operation.
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 the 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 revival, 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 governments of modern Europe is 'that they have no constitutions'. If, by this objection, it be understood that the), 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 we admit or reject the distinction between constitutional and ordinary legislation, it is not less true than the power of a nation to change its constitution, morally considered, must be briefly and universally coeval with the existence of a constitution. The languages of permanence, in this case, is the grossest absurdity. 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.'
