CHAPTER IV. OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND OF THEIR HISTORY. § 104. HAVING, in the two preceding chapters, considered the doctrine of sovereignty, by which are mainly to be determined the powers of the Constitutional Convention, and defined what is meant by a Constitution, to frame which is the business of that body, I pass now to a series of inquiries having for their purpose to determine the requisites to the legitimacy of Constitutional Conventions, namely, first, What is the proper mode of initiating or calling a Convention? and, secondly, By whom should Conventions be elected? These questions will form the subject of the present chapter, and will be considered from two separate points of view; 1, from that of theoretical principles; and, 2, from that of historical precedents. § 105. Before entering upon the wide field thus brought to view, it will be useful to ascertain the import of two terms, which will be very frequently used in the course of the discussion, namely, legitimacy and revolution, with their derivatives. The primary signification of the term legitimacy is accordance with the law, and it is most commonly employed with reference to the birth of children, to characterize it as lawful. In European governments, sovereignty being generally ascribed to the reigning monarch, from whom it descends to his offspring, according to certain rules, the legitimacy of a government follows from the personal legitimacy of the occupant of the throne, and vice versa; hence the term has there come to bear very commonly a merely political signification to characterize governments deemed to be regular and lawful, because, in the devolution of the rights of sovereignty from one incumbent of the throne to another, the established rules of legitimate succession have been observed. § 106. To the legitimacy of a prince of the blood, it is essential that he should be the offspring of the reigning monarch and his wife, begotten and born in lawful wedlock and during their joint occupancy of the throne, or the legitimate offspring of parents sustaining that relation. This rule, though apparently arbitrary, is based on the experienced necessities of state for many ages in the European monarchies; and, if exceptions to it have occurred, they have been rather acquiesced in than commended, and that from the same considerations of expediency that gave rise to the rule. To render a government legitimate, then, the rule requires the exclusion from the succession of all persons not the offspring of the royal pair; the exclusion of all the issue of them or either of them begotten, or conceived, out of the sovereign condition, or in a morganatic union of sovereign and subject; and, especially, of their bastard issue. To realize the importance of this rule, one needs but to call to mind the wars of succession that devastated the European monarchies, before it was established or because its application was disputed. § 107. Now, with the exception of royal titles and the physical circumstances of marriage and birth of children, which give a local coloring to the doctrine of legitimacy in Europe, it is applicable, in similar terms and for the same reasons, in the United States. It is true here, as there, that, to be lawful or legitimate, successive forms of government must be the offspring, regularly and lawfully begotten, the later of the earlier. They must be developed, one out of the other, after the order of Nature in the genesis and growth of her organic products. A system of government, in other words, having been established, it must itself govern, as well in the matter of reproducing or repairing itself as in that of protecting itself and its subordinate members from the operation of harmful agencies without. A government, once founded, is the people, as organized for the attainment of the ends of government. Neither a part nor all of that people, in their individual capacity, or acting as a dissociated, non-organized mass, are legally competent to change their political structure. If that is to be done at all, consistently with the integrity of the government, or with the safety or happiness of the citizens, it must be done through the people themselves, as organized for the purposes of government. In a word, it is a right of the governed to know where to look for lawful successors to the institutions and magistrates under which they now live a thing impossible except when the succession takes place according to law. The rules and legal principles by which this right is secured and rendered effectual, limit and explain the doctrine of legitimacy under our system of government. § 108. To determine whether an institution or a public body, claiming to exercise any of the powers of sovereignty, is legiti mate, in a political sense, it is necessary to ask two questions: 1. Has it, in its inception, the stamp of legality of conformity to the law of the land? 2. Do the law itself and the proceedings in which it originated conform to the fundamental principles of the Constitution, and to those prudential maxims which define the limits and conditions of a safe constitutional rule, from the point of view of the existing government? Whatever can answer these questions in the affirmative is legitimate. Whatever, on the other hand, is extra legem, that is, established without law, and from a point of view external to the existing order; and whatever, more especially, is adverse in its methods or influences, though not, perhaps, in its intent, to the government in being, or violates the principles necessary to its conservation, is illegitimate.1 Thus far of the term legitimacy. § 109. The term revolution (revolvo, to roll or turn over,) was used originally to signify, in a political sense, an uprising of ambitious or discontented subjects, with a view to subvert the exist. ing social order. From this has been derived the meaning, most common nowadays, with which I use the term, namely, to denote a political act or acts done in violation of law, or without law. The act must be a political one, since it would be an abuse of the term "revolution" to apply it to ordinary misdemeanors or felonies, which, though infractions of the municipal law, have neither in intent nor effect a political bearing. A political act is one done either in the exercise or in derogation or subversion of political rights, as defined and guaranteed by the government established. Such an act, to be revolutionary, accordingly, must be done either, first, in violation of law; that is, of the Constitution, or of the customary or statute law, including in the term law, the letter, with its necessary implications; or, secondly, without law; by which is meant, that the act must rest, for its warrant, on abstract considerations, such as physical power, necessity, or natural equity, and not upon the authority of the existing social order, to which it is extrinsic or hostile. From these definitions it follows, that it is erroneous to impute to all revolutions, what are unhappily the concomitants. of some, bloodshed and violence. Revolutions are of various kinds : 1 Compare Guizot, Hist. Civilization in Europe, Vol. I. Lect. III. First, such as manifest themselves in desolating wars, as that of the Roses, in England, or that which has just deluged our own land with blood. Second, such as run their course without bloodshed, but are attended by angry collisions of parties, threatening an outbreak of violence. Third, such as are consummated quietly, without a breach of the peace, or even excitement, often without a distinct percep tion, on the part of the people, of their occurrence. § 110. Of each of the kinds of revolution enumerated, the consequences may be varied, wholly without relation to the apparent magnitude of the forces at work in them. They may, indifferently, result in great and permanent changes in the Constitution of the society in which they occur, or in its laws or social condition, whether pronounced successful or not. Or, on the other hand, though they may seem to involve colossal forces and to be producing great transformations, the resulting changes may be slight and temporary. Strictly speaking, it is erroneous to distinguish revolutions as small or great. It is the want of legality in what is done that constitutes the revolution; and when a thing is done for which there is no law, or which is in violation of law, there are no degrees in the illegality, one thing is as legal as another, when both are illegal. It is only of the concomitants or effects of revolutions that magnitude can be predicated. - § 111. A single further remark is necessary to explain the import of the term revolution. In what has preceded, revolutionary acts have been conceived of as done, not by the government, but by persons without it, though subject to it. But the term revolutionary is often applicable to acts done by the functionaries of a state, whilst pursuing its enemies, to defeat them and to preserve the state. There is a homely maxim, according to which it is proper "to fight the devil with fire," which applies well to counter-revolutionary acts. On principle, as being done. without law or against law, though with the patriotic purpose of saving that for which all laws are made, such acts must nevertheless be classed as revolutionary. The moral character to be affixed to them, however, is to be determined by the degree of their necessity. So far as they are necessary to save the existing order, they are for it proper weapons of defence, and their inherent illegality is to be laid to the account of those who necessitated their use. So far, on the other hand, as they are unnecessary, they are to be stigmatized not only as illegal, but as morally indefensible, because stepping farther outside the circle of the law than is necessary to grasp and destroy its enemy. 1 § 112. The importance of defining the term revolution, and of characterizing as revolutionary whatever, by its lack of legality, deserves the name, arises from the consideration, that, co-extensive with the domain of law, is that of precedents. A precedent has been defined to be "something to show that, because a thing has been done before, therefore it may be done again." Being always relative to some rule, it is in the nature of a practical construction put upon it by the public authorities, from which it is fair to presume they will not depart in similar cases. Now, when, in treating of constitutional or political questions, it has been determined that an act or thing is without the domain of law, having no relations to it except those of hostility, that is, is revolutionary, it is also shown to be beyond the domain of precedents; it is, in short, incapable of being drawn into precedent. In this respect a revolutionary act is like one of theft or of homicide. While it is impossible to call either of the latter legal, it cannot be denied that both may, under some circumstances, be necessary and justifiable, as to preserve life. But such cases are extreme ones, and rest on their own circumstances. Because a man yesterday took life justifiably, under circumstances specified, it does not follow that I may take life to-day, though the same circumstances may exist, as, in my case, from a thousand causes, there may be no necessity for taking life. I may be stronger, or my antagonist weaker, than in the case cited as a precedent, and the particular of relative strength may not have been adverted to in that precedent. If, judging by my case alone, it is absolutely necessary for me to take life, I am justifiable in doing so, otherwise not. So, with every act that can be characterized as revolutionary. If it be done at all, it must be because the doer deems it absolutely indispensable. Moreover, it must be done at the doer's risk. If it result successfully, it so far lays the foundation for a new order of things. If it fail, 1 Judge Joel Parker, in the Massachusetts Convention of 1853. Debates Mass. Conv. 1853, Vol. I. p. 83. |