If the unrestrained discussion of abstract enquiry be of the highest importance to mankind, the mirestrained investigation of character is scarcely less to be cultivated. If truth were univer- sally told of men's dispositions and actions, gibbets and wheels might be dismissed from the face of the earth. The knave un- masked, would be obliged to turn honest in his own defence. Nay, no man would have time to grow a knave. Truth would follow him in his first irresolute essays, and public disapprobation arrest him in the commencement of hia career.
k2 132. OF LIBELS.
There are many men at present, who pass for virtuous, that tremble at the boldness of a project like this. They 'would be detected in their effeminacy and imbecility. Their imbecility is the growth of that inauspicious secrecy, which national man- ners, and political institutions, at present, draw over the actions of individuals. If truth were spoken without reserve, there would be no such men in existence. Men would act with clear- ness and decision, if they had no hopes in concealment, if they saw, at every turn, that the eye of the world was upon them. How great Avould be the magnanimity of the man, who was always sure to be observed, sure to be judged with discernment, and to be treated with justice? Feebleness of character would hourly lose its influence, in the breast of those over whom it now domineers. They would feel themselves perpetually urged, with an auspicious violence, to assume manners more worthy of the form they bear.
To these reasonings it may perhaps be rejoined, " This indeed is an interesting picture. If truth could be universally told, the effects would no doubt be of the most excellent nature; but the expectation is to be regarded as visionary."
Not so: the discovery of individual and personal truth, is to be effected, in the same manner as the discovery of general truth, by discussion. From the collision of disagreeing accounts, justice and reason will be produced. Mankind seldom think much of any particular subject, without coming to think right at last.
" Is it then to be supposed, that mankind will have the discern- ment and the justice, of their own accord, to reject the libel?" Yes; libels do not at present deceive mankind, from their in- trinsic power, but from the restraivjt under which they labour. The man who, from his dungeon, is brought to the light of day, cannot accurately distinguish colours; but he that has suffered no confinement, feels no difficulty in the operation. Such is the state of mankind at present: they are not exercised to employ their judgment, and therefore they are deficient in judgment. The most improbable tale now makes a deep impression; but then men would be accustomed to speculate upon the possibilities of liuman action.
At first, it may be, if all restraint upon the freedom of Avriting- and speech were removed, and men were encouraged to declare what they thought, as publicly as possible, every press would be burdened with an inundation of scandal. But the stories, by their very multiplicity, would defeat themselves. No one man, if the lie were successful, would become the object of universal persecution. In a short time, the reader, accustomed to the dis- section of character, would acquire discrimination. He would either detect the imposition by its internal absurdity, or at least would attribute to the story no further weight, than that to which its evidence entitled it.
Libel, like every other human concern, would soon find its OF LIBELS. 133 level, if it were delivered from the injurious interference of political institution. The libeller, that is, he who utters an un- founded calumny, either invents the story he tells, or delivers it with a degree of assurance, to which the evidence that has offered itself to him, is by no means entitled. In each case he would meet with his proper punishment in the judgment of the world. The consequences of his error would fall back upon him- self. Ho would either pass for a malignant accuser, or for a rash and headlong censurer. Anonymous scandal would be almost impossible, in a state where nothing was concealed. But, if it were attempted, it would be wholly pointless, since, where there could be no honest and rational excuse for concealment, the desire to be concealed, would prove the baseness of the motive. Secondly, force ought not to intervene for the suppression of private libels, because men ought to learn to be sincere. There is no branch of virtue more essential, than that which consists in giving language to our thoughts. He that is accustomed to utter what he knows to be false, or to suppress what he knows to be true, is in a state of perpetual degradation. If I have had par- ticular opportunity to observe any man's vices, justice will not fail to suggest to me, that I ought to admonish him of his errors, and to warn those whom his errors might injure. There may be very sufficient ground for my representing him as a vicious man, though I may be totally unable to demonstrate his vices, so as to make him a proper subject of judicial punishment. Nay, it can- not be otherwise; for I ought to describe his character exactly as it appears to be, whether it be virtuous or vicious, or of an ambiguous nature. Ambiguity would presently cease, if every man avowed his sentiments. It is here as in the intercourses of friendship: a timely explanation seldom fails to heal a broil; misunderstandings would not grow considerable, were we not ia the habit of brooding over imaginary wrongs.
La.ws for the suppression of private libels arc, properly speak- T^ ; ing" laws to restrain men from the practice of sincerity. They (create a warfare, between the genuine dictates of unbiassed private judgment, and the apparent sense of the community; throwing obscurity upon the principles of virtue, and inspiring an indifference to the practice. This is one of those consequences of political institution that presents itself at every moment: morality is rendered the victim of uncertainty and doubt. Con- tradictory systems of conduct contend with each other for the preference, and I become indifferent to them all. How is it pos- I sible that I should imbibe the divine enthusiasm of benevolence 1 and justice, when I am prevented from discerning what it is in 35iL"^lLJ]i6y_cousist? Other laws assume for tlie topic of their animadversion actions of unfrcquent occurrence. But the law of libels usurps the office of directing me in my daily duties, and, by perpetually menacing me with the scourge of punishment, undertakes to render me habitually a coward, continually governed by the basest and most unprincipled motives.
134 OF LIBELS.
134 OF LIBELS.
Courage consists more in this circumstance than m any other> tlie daring to speak everything, the uttering of which may con- duce to good. Actions, the performance of -which requires an inflexible resolution, call upon us but seldom; but the virtuous economy of speech is our perpetual affair. Every moralist can tell us, that morality eminently consists in " the government of the tongue." But this branch of morality has long been inverted. Instead of studying what we shall tell, we are taught to consider what we shall conceal. Instead of an active virtue, " going about doing good," we are instructed to believe that the chief end of man is to do no mischief. Instead of fortitude, we are carefully imbued with maxims of artifice and cunning, misnamed prudence.
Let us contrast the character of those men with whom we are accustomed to converse, with the character of men such as they ought to be, and will be. On the one side, we perceive a per- petual caution, that shrinks from the observing eye, that conceals, with a thousand folds, the genuine emotions of the heart, and that renders us unwilling to approach the men that we suppose accus- tomed to read it, and to tell what they read. Such characters as ours, are the mere shadows of men, with a specious outside per- haps, but destitute of substance and soul. When shall we arrive at the land of realities, where men shall be known for what they are, by energy of thought, and intrepidity of action! It is forti- tude, that must render a man superior alike to caresses and threats, enable him to derive his happiness from within, and ac- custom him to be, upon all occasions, prompt to assist and to inform. Everything, therefore, favourable to fortitude, must be of inestimable value; everything that inculcates dissimulation, worthy of our fullest disapprobation.
There is one thing more that is of importance to be observed upon this subject of libel, which is, the good effects that would spring, from every man's being accustomed to encounter falsehood with its only proper antidote, truth. After all the arguments that have been industriously accumulated to justify prosecution for libel, every man that will retire into himself, feels himself con- vinced of their insufficiency. The modes in which an innocent and a guilty man would repel an accusation against them, might be expected to be opposite; but the law of libel confounds them. He that was conscious of his rectitude, and undebauched by ill systems of government, would say to his adversary, "Publish what you please against me, I have truth on my side, and will confound your misrepresentations." His sense of fitness and jus- tice would not permit him to say, " I will have recourse to the only means that are congenial to guilt, I will compel you to be silent." A man, urged by indignation and impatience, may com- mence a prosecution against his accuser; but he may be assured, the world, that is a disinterested spectator, feels no cordiality for his proceedings. The language of their sentiments upon such oc- casions is, " What! he dares not even let us hear what can be said against him."
OP CONSTITUTIOKS. 135^ The arguments in favour of justice, however different may be the views under which it is considered, perpetually run parallel to each other. The recommendations imder this head, are pre- cisely the same as those under the preceding, the generation of activity and fortitude. The tendency of all false systems of political institution, is to render the mind lethargic and torpid. Were we accustomed not to recur either to public or individual force, but upon occasions that unequivocally justified their em- ployment, we should then come to have some respect for reason, for we should know its power. How great must be the difference, -jt. between him who answers me with a writ of summons or a chal- > lenge, and him who employs the sword and the shield of truth; alone? He knows that force only is to be encountered with force, J and allegation with allegation; and he scorns to change places | ■with the offender by being the first to break the peace. He does i that which, were it not for the degenerate habits of society, would scarcely deserve the name of courage, dares to meet, upon equal ' ground, with the sacred armour of truth, an adversary who pos-! Besses only the perishable weapons of falsehood. He calls up his j understanding; and does not despair of baffling the shallow pre- i tenccs of calumny. He calls up his firmness; and knows that a \ plain story, every word of which is marked with the emphasis of 1 sincerity, will carry conviction to every hearer. It were absurd j to expect that truth should be cultivated, so long as we are ac-y customed to believe that it is an impotent incumbrance. It would | be impossible to neglect it, if we knew that it was as impenetrable / as adamant, and. as lasting as the world.
CHAP. VII.
OF CONSTITUTIONS.
Distinction of regulations constituent and legislative. — Supposed cha- racte)- of permanence that ought to be given to the former — inconsistent with the nature of man. — Source of the error. — Remark. — Absurdity of the system of permanence. — Its futility. — Mode to be pursued in framing a constitution. — Constituent laws not more important than others. — In what manner the consent of the districts is to be declared, -—Tendency of the principle which requires this consent. — It would reduce the number of constitutional articles — parcel oxit the legis- lative powei' — and produce the gradual extinction of law. — Objection, — Answer.
A QUESTION, intimately connected with the political superin- tendence of opinion, is presented to us, relative to a doctrine "which has lately been taught, upon the subject of constitutions.
' 136 OF COKSTITUTIONS.
It has been said, " that the laws of every resular state naturally distribute themselves under two heads, fundamental and tem- porary; 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 conse- quence, 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 as- sembly 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 recognised as necessary, by two successive national assemblies of the ordinary kind; after 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 hos- tility with the principles established in this Avork. " 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 pro- bably 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 accumidating observation and experience. That form of society will, of consequence, appear most eligible, which is least founded in a principle of per- manence. 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 appella- tion of fundamental, less susceptible of change than anoth(!r, must be foimded in misapprehension and error.
The error probably originally sprung out of the forms of politi- cal monopoly, which we see established over the whole civilised world. Government could not justly flow, in the first instance, but from the choice of the people; or, perhaps, more accurately speaking, ought to be adjusted in its provisions, to the prevailing , apprehensions of equity and truth. But we see government at 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, OF CONSTITUTIONS. 137 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 p\irpose 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 govern- ment, 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 revisal, and renewable at their pleasure, the question, how tlie people came by this authority, would never have suggested itself.
A celebrated objection that has been urged against the govern- ments of modern Europe is, "that tliey have no constitutions."* If, by this objection, it be understood that they 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 etilogimn to which they are cer- tainly by no means entitled.
But to return to the question of permanence. Whether we admit or reject the distinction between constitutional and ordi- nary legislation, it is not less true that the power of a nation to change its constitution, morally considered, must be strictly and universally coeval with the existence of a constitution. The language 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."
The folly of this system may be further elucidated, if further elucidation be necessary, from the following dilemma. Either a people must be governed according to their own apprehensions of justice and truth, or they must not. The last of these assertions cannot be avowed, but upon the unequivocal principles of tyranny. But, if the first be true, then it is just as abstird to say to a nation, " This government, which you chose nine years ago, is the legitimate government, and the government which your present sentiments approve, the illegitimate;" as to insist upon their being governed by the dicta of their remotest ancestors, or even of the most insolent usurper.
• Paine's Eights of Man.
138 OF CONSTITUTIONS.
It is extremely probable, that a national assembly, chosen m the ordinary forms, is just as well entitled to change the funda- mental laws, as to change any of the least important branches of legislation. This function would never, perhaps, be dangerous, but in a country that still preserved a portion of monarchy or aristocracy; and, in such a country, a principle of permanence would be found a very feeble antidote against the danger. The true principle upon the subject is, that no assembly, though chosen with the most unexampled solemnity, is competent to im- pose any regulations, contrary to the public apprehension of right; and a very ordinary authority, fairly originated, will be sufficient to facilitate the harmonious adoption of a change that is dictated by national opinion. The distinction of constitutional and ordinary topics will always appear in practice, unintelligible and vexatious. The assemblies of more frequent recurrence, will find themselves arrested in the intention of conferring eminent benefit on their country, by the apprehension that they shall invade the constitution. In a country where the people are habituated to sentiments of equality, and where no political monopoly is tolerated, there is little danger that any national assembly should be disposed to enforce a pernicious change, and there is still less, that the people should submit to the injury, or not possess the means, easily, and with small interruption of public tranquillity to avert it. The language of reason, on this subject is, "Give us equality and justice, but no constitution. Suffer us to follow, without restraint, the dictates of our own judgment, and to change our forms of social order, as fast as we improve in understanding and knowledge."
The opinion upon this head, most popular in France at the time (1792) that the national convention entered upon its func- tions, was, that the business of a convention extended only to the presenting the draught of a constitution, to be submitted in the sequel to the approbation of tlie districts, and, subsequently only to that approbation, to be considered as law. This opmion is deserving of a serious examination.
The first idea that suggests itself respecting it, is, that, if con- stitutional laws ought to be subjected to the revision of the dis- tricts, then all laws ought to undergo the same process, under- standing by laws all declarations of a general principle, to be applied to particular cases as they may happen to occur, and even including all provisions for individual emergencies, that will admit of the delay incident to the revision in question. It is a mistake to imagine, that the importance of these articles is in a descend- ing ratio, from fundamental to ordinary, and from ordinary to particular. It is possible for tlie most odious injustice to be perpetrated, by the best constituted legislature that ever was framed. A law, rendering it capital to oppose the doctrine of transubstantiation, would be more injurious to the public welfare, than a law changing the duration of the national representative, from two years, to one year, or to three. Taxation has been J OP CONSTITUTIONS. 139 shown to be an article, rather of executive, than legislative ad- ministration;♦ and yet a very oppressive and unequal tax, would be scarcely less rmnous than any single measure that could pos- sibly be devised.
It may further be remarked, that an approbation demanded from the districts to certain constitutional articles, whether more or less numerous, will be either real or delusive, according to the mode adopted for that purpose. If the districts be required to decide upon these articles by a simple affirmative or negative, it will then be delusive. It is impossible for any man or body ot men, in the due exercise of their imderstanding, to decide upon any complicated system in that manner. It can scarcely happen, but that there will be some things that they would approve, and some that they would disapprove. On the other hand, if tlie articles be unlimitedly proposed for discussion in the districts, a transac- tion will be begun, to which it is not easy to foresee a termina- tion. Some districts will object to certain articles; and if these articles be modelled to obtain their approbation, it is possible that the very alteration, introduced to please one part of the commu- nity, may render the code less acceptable to another. How are we to be assured that the dissidents will not set up a separate government for themselves? The reasons that might be offered to persuade a minority of districts to yield to the sense of a majority, are by no means so perspicuous and forcible, as those which sometimes persuade the minority of members in a given, assembly, to that species of concession.
It is desirable, in all cases of the practical adoption of any given principle, that we should fully understand the meaning of the principle, and perceive tlie conclusions to which it inevitably leads. This principle of a consent of districts, has an imme- diate tendency, by a salutary gradation perhaps, to lead to the dissolution of all government. What then can be more ab- surd, than to see it embraced by those very men who are, at the same time, advocates for the complete legislative unity of a great empire? It is founded upon the same basis as the principle of private judgment, which, in proportion as it impresses itself on the minds of men, may be expected perhaps to supersede the possibility of the action of society in a collective capacity. It is desirable, that the most important acts of the national represen- tatives, should be subject to the approbation or rejection of the districts, whose representatives they are, for exactly the same reason that it is desirable, that the acts of the districts themselves should, as speedily as practicability will admit, be in force, only so far as relates to the individuals by whom those acts are approved.
The first consequence that would result, not from the delusive, but the real establishment of this principle, would be the reduc- tion of the constitution to a very small number of articles^ The • Book v., Chap. I.
140 OF CONSTITUTIONS.
impracticability of obtaining the deliberate approbation of a great number of districts to a very complicated code, would speedily manifest itself. In reality, the constitution of a state, governed either in whole or in part by a political monopoly, must neces- sarily be complicated. But what need of complexity, in a coun- try where the people are destined to govern themselves? The whole constitution of such a country ought scarcely to exceed two articles; fu-st, a scheme for the division of the whole into parts equal in their population, and, secondly, the fixing of stated periods for the election of a national assembly: not to say that the latter of these articles may very probably be dispensed with.
A second consequence, tliat results from the principle of which ^•e are treating, is as follows. It has already appeared, that the reason is no less cogent, for submitting important legislative articles to the revisal of the districts, than for submitting the con- stitutional articles themselves. But, after a few experiments of this sort, it cannot fail to suggest itself, that the mode of sending laws to the districts for their revision, unless in cases essential to the general safety, is a proceeding unnecessarily circuitous, and that it would be better, in as many instances as possible, to suffer the districts to make laws for themselves, without the interven- tion of the national assembly. The justness of this consequence is implicitly assumed in the preceding paragraph, while we stated the very narrow bounds within which the constitution of an empire, such as that of France for example, might be circum- scribed. In realit)-, provided the country were divided into con- venient districts with a power of sending representatives to the general assembly, it does not appear that any ill consequences would ensue to the common cause, from these districts being per- mitted to regulate their internal affairs, in conformity to their