On Sovereignty (IX)


***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 ninth part of the series on sovereignty. In this installment, the editor of LA ESPERANZA asks about the principle of legitimacy of governments. He concludes that it is not force, nor obedience, nor the tacit or complicit consent of the people that legitimizes governments, but prescription.


In the preceding article we indicated that power, considered in itself, is not a primordial right recognized a priori, but is rather a fact, with copious evidence in confirmation of this truth drawn from the history of the most famous popular governments of antiquity. Today it falls to us to demonstrate how this fact comes to constitute a right; that is to say, how governments are legitimized, or, rather, what makes them civilly legitimate.

There are different opinions about this: some affirm that they are legitimized by divine right; but since this can only be applied to kings in the sense that we will explain another day, the question remains unresolved. To put it plainly, it boils down to the question whether, from the moment a government of any kind is established, it is instituted by divine right, and the authority of its head is as legitimate as if it had been received from God Himself. We do not know of a single author who has carried his opinion to this extreme: such exaggerations were invented by revolutionaries in order to convince them that only by admitting the sovereignty of the people could the legitimacy of power be reasonably explained. We say to this extreme, because we suppose that no one would have said, for instance, that Brutus and Colatinus, or Valerius and Horace, succeeded the Tarquins by divine institution, or that the chiefs of the savage Indians were placed by God at the head of their tribes. This would take us beyond the bounds of sound reason, for it would be tantamount to asserting that whoever dethroned an Iroquois chief was committing a kind of sacrilege, because he was attacking one of the Lord’s chosen ones. It would also follow that anyone who sets himself up as the head of a State, even if he is only the chief of a tribe of Hottentots, is perpetually illegitimate, for there is no one on earth who can lawfully destroy what God has established. It would further follow that all existing governments exercise usurped authority, for they are all founded on the ruins of others. There is no one, we repeat, who has held such strange opinions, nor, consequently, who has understood in such a strange way the texts of Scripture relating to the case; texts which have a very simple and natural explanation, as we would see if we were to challenge men who admit the testimony of the Bible.

Other writers argue that the legitimacy of governments is based on the recognition of other States. Even if this were true, it would not apply to ancient governments, among which such recognition was not used. The conqueror who occupied a country with his army did not care whether the neighboring governments recognized him or not: he only cared about defending and preserving his new acquisition. The same was true of governments created by internal revolutions. If the newly created government had sufficient strength to maintain itself, it cared little for the recognition or non-recognition of others, and so it never demanded this formality from them. Strength was always the only title by which the ancient governments made themselves respected by their neighbors, and in reality the same thing happens with the modern ones: the treaty comes after the government is established, and it comes as if it were a mere formality. Moreover, if recognition were to legitimize governments, it would logically follow that those which everyone considered usurpers and null and void would be legitimized; such are (without going back too far) the French Directory and later the Consulate, which were recognized by almost all the powers.

Others, finally (and they are all liberals), establish the consent of the governed themselves as the sole principle of the legitimacy of governments. Elsewhere we have shown, from the history of all peoples, that no government has ever been established by express consent; now we shall prove that it is not even tacit consent that legitimizes power. Those who hold such a doctrine should say whether they speak of universal consent without the failure of a single individual, or only of a numerical majority. If they maintain the former, we must reply that there never was, is, or ever will be a single government in the world with which all the subjects are satisfied, and in whose country there are not many individuals who would like to see it changed; let each of you think about it, and then tell us whether we are right. If you defend the latter, you must tell us whether the consent of the majority must be truly free and sincere, or whether forced consent will suffice. If it must be free and sincere, we must admit that for many centuries most of the governments of the world have not been legitimate. Let us appeal to the history, not of the barbarous nations, but of the most civilized.

Nemrod destroys the patriarchal government, and justly or unjustly founds a true monarchy: how many centuries would pass before the majority of the governed would be sincerely satisfied with this form of government? Probably it would end before the subjects would gladly bear the yoke of the monarch. And what, during all that long period, was there no legitimate government in the vast country ruled by Nemrod and his immediate successors? A warlike prince appears on the scene, conquers many great provinces, and founds the mighty empire of the Assyrians; how many years, or, to say rather, how many centuries, would pass before the conquered countries were satisfied with the new dominion? And was not the rule of the monarchs of this empire legitimate during such a long period? Then came the empire of the Babylonians, which swallowed up the empire of the Ninevites and enlarged it with many conquests: how long would it take for the new slaves to become sincerely fond of the devastators of this territory? And during all that time, would they be without a legitimate monarch? The same must have happened with the Persian domination, which followed that of the Babylonians, and the same must be said of Alexander’s expedition, which put an end to the Persian dynasty, and of the new monarchies founded by the Macedonian generals after the death of their leader: how many centuries must have passed before these vast territories were content with the Greek domination that they hated so much? But we need not go so far, nor go back to such remote times. Within the peninsula we have a very clear example. For nearly a century Portugal was united to the Crown of Spain: the religion of both countries was the same, the language very similar, the form of government identical, the customs similar and the origin common; and yet the majority of the Portuguese were never well disposed to Castilian rule. Will there be anyone who dares to say that the government of Castile was not a legitimate government for the Portuguese? If tacit consent is sufficient for the legitimacy of a government, then there has never been, nor will there ever be, one that is not legitimate in the fact of its existence, for the simple reason that one rules only those who obey him. Moreover, all the usurpations and tyrannies mentioned in history would have been legitimate: the reign of the usurper and tyrant Peisistratus, the dictatorships of Sulla and Caesar, the protectorate of Cromwell, the guillotinesque government of Robespierre, etc. There is no way around it: the majority, if not almost the entirety, of the governed obeyed by force; therefore, if forced obedience is sufficient to legitimize any power, the power of the personalities we have enumerated, and that of the other usurpers of whom the annals of the world speak, was legitimate.

If none of the conditions we have mentioned legitimizes governments, then what is the principle of their legitimacy? That which is the principle of human acquisitions, prescription. There is no doubt that what is most essential for the prescription of other human acquisitions is quiet and peaceful possession, that is, an undisputed and uninterrupted possession, continued for a certain period of time, more or less long, according to good or bad faith, the quality of the title of acquisition, and the nature of the thing acquired. Possession is said to be quiet and peaceful when either there has never been any resistance on the part of the former possessor, or when such resistance has definitely ceased. This is a common doctrine among jurisconsults, and is equally applicable to governments; but it is proper to illustrate it by examples.

The Goths invaded Spain, fought against the Romans, defeated them, and took possession of the peninsula, depriving the former owners of their lands and dividing them among themselves. The acquisition could not have been more unjust: divine law, far from sanctioning it, condemned it, as it condemns all usurpation and robbery; the conquerors did not ask for the recognition of the other States, as is customary in modern diplomacy; and the dispossessed certainly did not consent, either expressly or tacitly, to be ruled by these new lords, much less to have their goods taken from them. But it is certain that the public power, that is to say, the Roman arms, which should have repaired this violence and maintained it in its ancient possession, fled and left the field free to the invaders. Days went by; the defenders did not return; all resistance to the new acquisition ceased, and after years it was legitimized by prescription, which henceforth created a very legitimate right in favor of the dominators. This is how governments are legitimized.

Let us take another case. The Gothic monarchy, though usurper at the beginning, became legitimate, as we have just seen. Two centuries later, its territory was invaded and occupied almost in its entirety by the Saracens. The Gothic government took refuge among inaccessible cliffs, from where it resisted in such a way that it prolonged its resistance for 700 years, until it finally drove the Muslims out of their country and destroyed Muslim power forever. Hardly anyone will argue that this was legitimate, even though the vast majority of the inhabitants of the Moorish kingdoms of Spain obeyed and tacitly consented to their authority. And why did it not become legitimate? Because the resistance of the former possessors did not cease, because the possession of the invaders was not calm and peaceful, in a word, because there was no prescription.



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