On Sovereignty (VII)

***La versión original en español del artículo se puede encontrar en este enlace. La traducción al inglés la ha realizado uno de los miembros del Círculo Camino Real de Tejas con la supervisión de los traductores del Gremio San Jerónimo***

We publish the transcript of the seventh article on sovereignty. You can find the sixth part of this series by clicking on this link.


If you deny, we are told, that the power of kings is derived from a compact between them and their subjects, you will also deny that there exist in the States political constitutions, that is to say, codes of fundamental laws, those laws without which there is no society, laws which determine the relations between the monarch and the people, as well as the duties which both have towards each other. We can hardly deny the existence of such constitutions when we see that they are established in all the States of Europe. What we do deny is that these constitutions derive from the supposed right of popular sovereignty, for it is constant that some have been born by the kings themselves, and others by force and by fraud; in none of them have the people intervened; on the contrary, they have not infrequently rejected them, and yet they have had to obey them. Let us consider the nations whose history is best known to us.

From the very beginning of ancient Greece, we contract with the two famous peoples of Lacedemonia and Athens. Established by the force the Heraclids in the Peloponnese, was formed, among others, the kingdom of Laconia, ruled by two hereditary kings whose sovereign will was undivided. The citizens disagreed among themselves because of the variable laws, the inequality of wealth, etc. Lycurgus, the uncle and tutor of one of the two kings, had the idea of reforming the old legislation, and without any authority, without taking into account the consent of the Lacedaemonians, or rather, against the express will of a large part of them, he published his new code, facing great dangers. Far from seeking the will of the people by submitting the new laws to their examination and discussion, he seduced them by trickery, resorting to lying oracles and the fraud of requiring a false oath, while exposing himself to the harsh fate of ending his days outside his native land. In this code was the constitution of the state, and yet we do not see that for its promulgation the general deliberation of the citizens was necessary, nor the appointment of deputies to discuss and sanction it: it was the work of the fortuitous conspiracy of a few. Solon, although he was not a dictator, gave Athens a code of fundamental laws as if he were one, and obliged the magistrates, called Thesmotetos, to promise with an oath that in a hundred years none of them would be changed. In all the political revolutions that have taken place in this State, there has been a struggle between the poor and the rich, between the people and the magnates, and as an end to the discord, a constitution has been established, sometimes favorable to the aristocracy or the oligarchy, and sometimes favorable to democracy, according to the relative strength of the parties at the time of its establishment.

This is even more evident in the history of the Roman Republic. The entire political situation of that people can be reduced to a 500-year struggle between the plebeians and the Senate, between the nobility and the common people; a struggle that resulted in the slow and definitive triumph of the popular party, obtained by force of successive accommodations, in which it always extracted some concession from the other party, weakening its power, so that it is not inaccurate to say that the constitution was always dictated by the victor.

Let us come to the modern nations, whose history interests us more, because in it are consigned what are now called patriotic liberties. The empire of Rome having been destroyed by the invasion of the barbarians of the north, a multitude of tribes of hardy savages, coming from the forests of ancient Germania and other northern regions, swarmed over the west and south of Europe; and, overcoming all resistance, they established themselves in the Roman provinces, made out of them several independent states, and founded feudal monarchies. At the end of the war, they honored the chief who had led them into battle with the title of king. This title did little to increase the powers of the gracious one, since nothing important could be done in public affairs without the dependence of the principal captains of his army, almost absolute owners of the portions of territory which had been appropriated or awarded to them in the conquest. In such a situation, the defeated peoples were considered the property of the victors, reduced to a kind of slavery under the name of vassalage, without more rights than those their own lords wanted to grant them, rights that usually consisted in being able to enjoy a portion of the fruits that they themselves had gathered from the earth by the sweat of their brow. This vassalage, so hard in the beginning, gradually softened, especially after the conquerors adopted the religion of the conquered. What constitution would produce such an order of things? It is easy to think of it: a constitution written at the point of the sword; a constitution in which, as a necessary consequence, the people had no part, and could have no part. On the contrary, it was regarded as a foreign body, since only the new masters intervened directly or indirectly in public affairs of general interest, elected a king when the throne was vacant, and settled all other matters affecting the State.

As the power of the lords increased with time through the progressive increase in the number and wealth of their vassals, and the throne was consolidated by the hereditary succession of kings and various other causes, the monarchs looked with jealousy at the excessive power of the lords, and the people began to bear the yoke of the lords with less docility. As a result, the political situation of the European monarchies changed. From then on, the kings favored the emancipation of the vassals by all possible means, which in turn contributed to the expansion and splendor of the royal prerogative. In gratitude, the monarchs granted fueros and privileges to the people, and called the most distinguished men of the common state to the general assemblies. They first appointed them as counsellors or good men, and, converting the custom into law, they allowed certain cities and towns to send deputies to make known their needs and to demand such franchises and laws as might contribute to their welfare. The vassals, taking advantage of this favor, sought to escape the jurisdiction of their lords and place themselves under the protection of the throne.

This is the origin of the charters, fueros, and constitutions of modern societies: charters, fueros, and constitutions which, whatever their differences, are reduced in substance either to concessions made by kings to the people in order to diminish the power of the nobles, or to petitions of the people, which, sometimes unheeded and sometimes granted, improved the lot of the vassals, softened slavery, and made the commonwealth an integral part of the nation, making it equal to the other two branches. It is true that, since the sixteenth century, we have seen in some States constitutions or charters whose origin seems to favor the opinion of the philosopher-experts whom we impugn; but these charters or constitutions do not prove the principle they are intended to establish: they are the works of revolution, which, superimposing itself on every right, creates another, which must be obeyed by force.

Here, in brief, is the history of the public constitutional law of the European nations, a history which will certainly be found accurate by those who investigate the origin of the fundamental codes which have governed each of them. From this history it will be conclusively deduced that such codes have emanated either from the authority of princes, or from force, or from deception, without the people being seen to intervene in their formation.



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