Part I, 6

To understand clearly what government is, or ought to be, we must trace it to its origin. We shall then readily see that governments must have arisen either from the people or over them. Mr. Burke makes no such distinction. He investigates nothing at its source and consequently confuses everything. But he has announced his intention of comparing the constitutions of England and France on some future occasion. Since he has issued a challenge and made this a matter of dispute, I meet him on his own ground. Great challenges provide the proper occasion for great truths; I accept this one all the more readily because it also lets me pursue the question of governments arising from society.

First, however, we must define what we mean by a Constitution. It is not enough to adopt the word; we must give it a definite meaning.

A constitution is not merely a name but a reality. It has a real existence, not an imaginary one; where it cannot be produced in visible form, it does not exist. A constitution precedes a government; a government is only the creation of a constitution. A country's constitution is not the act of its government but of the people who establish that government. It is a body of provisions that can be cited article by article. It sets out the principles on which government is established, how it is organized, the powers it possesses, the method of elections, the duration of Parliaments or whatever such bodies are called, and the powers of the executive. In short, it sets out everything concerning the complete organization of civil government and the principles by which it acts and is bound. The constitution stands in relation to the government as the laws subsequently made by that government stand in relation to a court. A court does not make or alter the laws; it acts in accordance with the laws as made. In the same way, a government is governed by its constitution.

Can Mr. Burke, then, produce the English Constitution? If not, we may fairly conclude that, for all the talk about it, no such constitution exists or has ever existed, and that the people have still to form one.

Mr. Burke will not, I presume, deny what I have already argued: governments arise either from the people or over them. The English Government arose from conquest, not from society, and therefore arose over the people. Although circumstances have led to many changes since the time of William the Conqueror, the country has never regenerated itself and thus remains without a constitution.

I can readily see why Mr. Burke declined to compare the English and French constitutions: when he sat down to the task he must have seen that there was no constitution on his side to compare. His book is certainly large enough to contain everything he could say on the subject, and such a comparison would have given people the best opportunity to judge their respective merits. Why, then, did he avoid the one subject worth writing about? It would have been his strongest ground if the advantages were his, but his weakest if they were not. His refusal suggests either that he could not take that ground or that he could not hold it.

In a speech in Parliament last winter, Mr. Burke said “that when the National Assembly first met in three Orders (the Tiers Etat, the Clergy, and the Noblesse), France had then a good constitution.” This shows, among many other things, that Mr. Burke does not understand a constitution. Those who met were not a constitution but a convention assembled to make one.

The present National Assembly of France is, strictly speaking, the social compact embodied in persons. Its members represent the nation in its original character; later assemblies will represent the nation in its organized character. The present Assembly holds a different authority from that of future assemblies. Its authority is to make a constitution; theirs will be to legislate under the principles and forms that constitution prescribes. Should experience later show that changes, amendments, or additions are needed, the constitution will prescribe how they are to be made rather than leaving the decision to the discretion of a future government.

A government founded on the principles of constitutional government arising from society cannot have the right to alter itself. If it did, it would be arbitrary: it could make itself whatever it chose. Any assertion of such a right shows that no constitution exists. The act by which the English Parliament empowered itself to sit for seven years shows that England has no constitution. By the same self-given authority it might have sat for any number of years, or for life. A bill that the present Mr. Pitt brought into Parliament some years ago to reform Parliament rested on the same false principle. The right of reform belongs to the nation in its original character; the constitutional way to exercise it would be through a general convention elected for that purpose. Besides, there is a paradox in imagining that a corrupted body can reform itself.

With these preliminaries in place, I turn to comparisons. I have already discussed the declaration of rights; to be as brief as possible, I shall take up other parts of the French Constitution.

The constitution of France says that every man who pays a tax of sixty sous per annum (2s. 6d. English) is an elector. What article will Mr. Burke set against this? Could England's qualifications for electors be at once more restrictive and more capricious? Restrictive—because not one man in an hundred, and I understate the case, is allowed to vote. Capricious—because a man of the lowest imaginable character, without even visible means of earning an honest living, can vote in some places, while elsewhere a man who pays very high taxes and is known to be of good character cannot. Nor can a farmer who rents land worth three or four hundred pounds a year, with property on the farm worth three or four times that sum. Everything in this strange chaos is out of nature, as Mr. Burke says on another occasion, and every kind of folly is mixed with every kind of crime. William the Conqueror and his descendants divided up the country in this way, bribing some parts with what they call charters so as to hold the others more securely under their rule. This is why so many such charters abound in Cornwall: its people resisted the government imposed by the Conquest, so the towns were garrisoned and bribed to enslave the countryside. Every old charter is a badge of that conquest, and the caprice of elections has its source there.

The French Constitution says that the number of representatives for any place shall be proportional to its number of taxable inhabitants or electors. What article will Mr. Burke set against this? The county of York, with nearly a million people, sends two county members; so does Rutland, with less than an hundredth as many. The old town of Sarum, with fewer than three houses, sends two members; Manchester, with upward of sixty thousand people, sends none. Is there any principle here? It is admitted that all this is altered, but much remains to be done before the people are fairly represented. Can you find in this arrangement any mark of freedom or sign of wisdom? No wonder Mr. Burke refuses the comparison and tries to draw his readers away from the point with a wild, disorderly display of paradoxical rhapsodies.

The French Constitution says that the National Assembly shall be elected every two years. What article will Mr. Burke set against this? He can only say that the nation has no right in the matter, that the government is wholly arbitrary on this point, and cite the precedent of a former Parliament as his authority.

The French Constitution says there shall be no game laws: a farmer on whose land wild game lives—for it feeds on what his land produces—may take what he can. It says there shall be no monopolies of any kind, that all trades shall be open, and that every person may pursue any occupation that provides an honest living, anywhere in the nation, whether in the countryside, a town, or a city. What will Mr. Burke say to this? In England, game is made the property of people who pay nothing to feed it; as for monopolies, the country is carved into them. Every chartered town is itself an aristocratic monopoly, and the qualifications of electors arise from these chartered monopolies. Is this freedom? Is this what Mr. Burke means by a constitution?

A man arriving at one of these chartered monopolies from elsewhere in the country is driven away as if he were a foreign enemy. An Englishman is not free in his own country. Each of these places erects a barrier before him and tells him he is not a free man, that he has no rights. Within these monopolies lie further monopolies. In a city such as Bath, with between twenty and thirty thousand inhabitants, about thirty-one people monopolize the right to elect representatives to Parliament. And within those monopolies lie others still. A man born in the town, whose parents could not afford to provide him with an occupation, is in many cases barred from his natural right to acquire one, however gifted or industrious he may be.

Are these the examples to offer a country such as France as it frees itself from slavery? Certainly not. I am certain, too, that when the English people reflect on them they will, like France, abolish those badges of ancient oppression, those traces of a conquered nation. Had Mr. Burke possessed talents like those of the author of “On the Wealth of Nations,” he would have understood all the parts that together make a constitution. He would have reasoned from the smallest details to the whole. It is not only his prejudices but the disordered character of his genius that unfits him for his subject. Even his genius lacks a constitution. It wanders at random; it has no organization. But he has to say something. So he rises like a balloon into the air to draw the multitude's eyes away from the ground beneath their feet.

There is much to learn from the French Constitution. Conquest and tyranny crossed from Normandy into England with William the Conqueror, and the country still bears their disfiguring marks. May all France's example help regenerate the freedom that one of its provinces destroyed!

The French Constitution says that, to protect the national representation from corruption, no member of the National Assembly shall hold government office, a paid post, or a pension. What will Mr. Burke set against this? I will whisper his answer: Loaves and Fishes. Ah, there is more harm in this government of loaves and fishes than people have yet considered. The National Assembly has discovered it and offers an example to the world. If governments had agreed to quarrel deliberately to fleece their countries through taxation, they could hardly have succeeded better.

Everything in the English government seems to me the reverse of what it should be and of what it is said to be. Parliament, however imperfectly and capriciously elected, is supposed to hold the nation's purse in trust for the nation. But in the way an English Parliament is constituted, it is like a man who is both the debtor giving a mortgage and the creditor holding it; when the trust is abused, the culprit sits in judgment on himself. If those who vote public funds are the same people who receive them, and must account for their spending to the people who voted them, they answer only to themselves. The Comedy of Errors ends in a pantomime called Hush. Neither the Ministerial party nor the Opposition will touch this question. The nation's purse is the common horse each takes a turn riding. It is as country people say: “Ride and tie—you ride a little way, and then I.”*5 They manage such matters better in France.

The French Constitution says the right to decide on war and peace belongs to the nation. Where else should it belong but with those who pay the cost?

In England this right is said to rest in a metaphor displayed at the Tower for sixpence or a shilling a piece; the lions are displayed there too. It would be nearer to reason to say the right rested in them, for a lifeless metaphor is no more than a hat or a cap. We can all see the absurdity of worshipping Aaron's molten calf or Nebuchadnezzar's golden image. Why, then, do people continue to practice the absurdities they scorn in others?

It can fairly be said that, given the way the English nation is represented, it makes no difference whether this right rests with the Crown or with Parliament. In every country, war is the common harvest of all who share in the distribution and expenditure of public money. It is the art of conquering at home. Its object is to increase revenue; and since revenue cannot rise without taxes, a pretext for expenditure must be found. Looking over the history of the English Government, its wars and its taxes, an observer neither blinded by prejudice nor swayed by self-interest would conclude that taxes were not raised to wage wars: wars were raised to levy taxes.

To understand clearly what government is, or should be, we must go back to its beginning. Then we can see that governments must have come either from the people or been imposed on them. Mr. Burke makes no such distinction. He never looks for the source of anything, so he confuses everything. He has said he intends someday to compare the constitutions of England and France. By inviting that argument, he has issued a challenge, and I will meet him on his own ground. Major challenges give important truths a chance to emerge. I gladly accept because this also lets me continue examining governments that come from society.

But first we must define a constitution. Using the word is not enough. We must agree on what it means.

A constitution is a real thing, not just a name or an idea. If it cannot be shown in a visible form, it does not exist. A constitution comes before a government; a government is created by a constitution. A country’s constitution is made not by its government but by its people when they establish that government. It is a body of provisions that you can point to and cite article by article. It sets out the principles on which the government is founded, how it is organized, what powers it has, how elections work, and how long Parliaments—or bodies with other names—may serve. It also defines the powers of the executive branch. In short, it covers everything about the full organization of civil government, the principles guiding it, and the limits that bind it. A constitution stands in relation to a government as the laws that government later passes stand in relation to a court. The court neither makes nor changes those laws. It acts under them. In the same way, the government acts under the constitution.

Can Mr. Burke produce the English Constitution? If he cannot, we may reasonably conclude that, however much people talk about it, no such constitution exists or ever existed. The people must still make one.

I doubt Mr. Burke will deny my earlier point: governments arise either from the people or as powers over them. The English Government came from conquest, not society, so it was imposed on the people. Circumstances have changed it greatly since William the Conqueror, but the country has never remade its government for itself. It therefore has no constitution.

I can see why Mr. Burke chose not to compare the English and French constitutions. When he considered doing so, he must have realized that his side had no constitution to offer. His book is certainly long enough to include all he could have said on the subject. A comparison would have given readers the best way to judge the two constitutions. Why did he avoid the one subject worth writing about? If the advantages were on his side, it was the strongest argument available to him. If not, it was his weakest. His refusal suggests that he either could not make the argument or could not defend it.

In a speech in Parliament last winter, Mr. Burke said “that when the National Assembly first met in three Orders (the Tiers Etat, the Clergy, and the Noblesse), France had then a good constitution.” This is one of many signs that he does not understand what a constitution is. Those who met did not themselves form a constitution. They were a convention meeting to make one.

Strictly speaking, the present National Assembly of France is the social agreement embodied in its members. They represent the nation as it exists before a constitution. Later assemblies will represent the nation once it is constitutionally organized. The present Assembly and later ones have different powers. This Assembly has the power to make a constitution. Later assemblies will make laws according to the rules and principles set out in it. If experience shows that changes or additions are needed, the constitution will say how to make them. The future government will not be free to change it as it likes.

A constitutional government formed by society cannot have the right to change its own basic rules. If it did, its power would be unlimited. It could turn itself into anything it liked. A government that claims this right shows that it has no constitution. The English Parliament passed an act allowing itself to sit for seven years. That proves England has no constitution. By the same claim of authority, Parliament could have allowed itself to sit for any number of years, or for life. A bill introduced by the present Mr. Pitt some years ago to reform Parliament made the same mistake. The right to reform belongs to the nation in its original capacity. The constitutional way to do it would be to elect a general convention for that purpose. Besides, there is something contradictory about expecting corrupt institutions to reform themselves.

With those points established, I will make some comparisons. I have already discussed the declaration of rights. To keep this brief, I will turn to other parts of the French Constitution.

The constitution of France says that every man paying an annual tax of sixty sous (2s. 6d. English) can vote. What English rule can Mr. Burke set against this? Could England’s voting qualifications be more restrictive or more arbitrary? Restrictive, because not one man in an hundred—and that is a cautious estimate—can vote. Arbitrary, because in some places even a person of the worst character, with no visible honest means of support, can vote. In other places, someone who pays very large taxes and is known to have a good character cannot vote. Neither can a farmer renting land for three or four hundred pounds a year and owning property on that farm worth three or four times as much. As Mr. Burke says on another subject, everything in this strange mess is unnatural. All kinds of foolishness mix with all kinds of wrongdoing. William the Conqueror and his descendants divided the country this way. They bribed some places with what they call charters, making it easier to hold the rest under their power. This is why Cornwall has so many charters. Its people resisted the government established by the Conquest, so towns were filled with troops and bought off to help keep the countryside in subjection. All the old charters are marks of conquest. They are the source of the arbitrary election rules.

The French Constitution says that each place’s number of representatives must be proportional to its number of taxable residents or voters. What can Mr. Burke set against that? The county of York has nearly a million people and sends two county members to Parliament. The county of Rutland has less than an hundredth as many people and also sends two. The old town of Sarum has fewer than three houses and sends two members. Manchester has more than sixty thousand people and sends none. Is there any principle here? It is admitted that all this is altered, but much remains to be done before the people are fairly represented. Can you find any sign of freedom or wisdom in this? No wonder Mr. Burke avoided the comparison and tried to distract his readers with a wild, disorganized collection of contradictory claims.

The French Constitution says the National Assembly must be elected every two years. What can Mr. Burke set against that? Only that the nation has no right in the matter. The government can decide entirely as it wishes, and he can cite a previous Parliament as precedent.

The French Constitution says there will be no game laws. Farmers may take wild game on their own land, where their crops feed it. There will also be no monopolies of any kind. Anyone may freely practice any trade that provides an honest living, anywhere in the country, whether in a village, town, or city. What will Mr. Burke say to that? In England, game belongs to people who do not pay to feed it. As for monopolies, they divide up the whole country. Every town with a charter is itself a monopoly controlled by a privileged few, and its chartered monopoly determines who can vote. Is that freedom? Is that what Mr. Burke means by a constitution?

In these chartered towns, a man from another part of the country is chased away as though he were a foreign enemy. An Englishman is not free in his own country. Each such town puts up a barrier and tells him he is not a free citizen and has no rights. There are further monopolies within these monopolies. In Bath, for example, a city of between twenty and thirty thousand inhabitants, about thirty-one people alone have the right to elect members of Parliament. And there are still more monopolies within those. In many cases, even someone born in the town cannot freely enter a trade if that person’s parents lacked the means to provide training for one, however able or hardworking that person may be.

Should a country like France, now freeing itself from oppression, follow these examples? Certainly not. I am sure that when English people think about them, they too will abolish these marks of old oppression and conquest, as France has done. If Mr. Burke had talents like the author of “On the Wealth of Nations,” he would understand all the individual parts that come together to form a constitution. He would reason from small details to the whole. His prejudices are not the only reason he cannot handle this subject. His thinking is also disordered. Even his mind has no constitution. His talent wanders without structure. Still, he has to say something. So he rises like a balloon, drawing the crowd’s eyes away from the ground under their feet.

There is much to learn from the French Constitution. William the Conqueror brought conquest and tyranny from Normandy to England, where their marks still disfigure the country. May the example of all France help restore the freedom that one of its provinces destroyed!

The French Constitution says that to protect the nation’s representatives from corruption, no member of the National Assembly may hold a government office, a paid government post, or a government pension. What can Mr. Burke set against this? I will whisper his answer: Loaves and Fishes. This system of handing out paid favors causes more harm than people have yet understood. The National Assembly has recognized the problem and offers the world an example. Governments could hardly have succeeded more thoroughly in using taxes to strip their countries of money if they had deliberately agreed to start quarrels for that purpose.

Everything about the English government seems to me the opposite of what it should be and what people claim it is. Though Parliament is elected unfairly and according to arbitrary rules, it is supposed to manage the nation’s money on the nation’s behalf. But the way an English Parliament is made up is like a man who both takes out a mortgage and holds that same mortgage. If he misuses what was entrusted to him, he is the wrongdoer sitting in judgment on himself. The people who vote to provide public funds are also the people who receive them. They must then account for the spending to themselves. This Comedy of Errors ends with a silent pantomime: Hush. Neither the government’s party nor the opposition will address the problem. Both take turns riding the national purse like a shared workhorse. Country people call this “Ride and tie—you ride a little way, and then I.”*5 France handles these matters better.

The French Constitution says that the nation has the right to decide on war and peace. Who else should have that right but the people who must pay the cost?

In England, this right is said to belong to a symbol that people can see at the Tower for sixpence or a shilling a piece. They can see the lions there too, and it would make a little more sense to give the right to the lions. A lifeless symbol has no more judgment than a hat or cap. We can see how absurd it was to worship Aaron’s molten calf or Nebuchadnezzar’s golden image. Why do people keep doing the same absurd things themselves while mocking others for them?

Given the way the English nation is represented, one can reasonably say it makes no difference whether the Crown or Parliament has the right to decide on war. In every country, war brings a rich harvest to those who divide and spend public money. It is a way to conquer people at home. Its purpose is to increase government revenue. Revenue cannot grow without taxes, so those in power need a pretext for spending. Anyone who examined the history of English government, its wars, and its taxes without prejudice or self-interest would say that taxes were not raised to pay for wars. Wars were started to justify taxes.