History of the Origin of Representative Government in Europe

by François Guizot

This two-fold consequence of the definition of law frequently occurs in the legislation of the Visigoths. "The king is called king (rex) in that he governs justly (recte). If he acts with justice, he legitimately possesses the name of king; if he acts with injustice, he miserably loses it. Our fathers, therefore, said with reason: Rex ejus eris si recta facis; si autem non facis, non eris. The two chief virtues of royalty are justice and truth." "The royal power, like the whole of the people, is bound to respect the laws. Obeying the will of heaven, we give, to ourselves as well as to our subjects, wise laws, which our own greatness and that of oar successors is bound to obey, as are also the whole population of our realm."

Limits Of These Theories.

"God, the Creator of all things, in arranging the structure of the human body, raised the head above, and willed that thencefrom should issue the nerves of all the members. And he placed in the head the torch of the eyes, that thence might be detected all things that might be injurious. And he established therein the power of intellect, charging it to govern all the members, and wisely to regulate their action. We must therefore first regulate that which concerns princes, watch over their safety, protect their life; and then ordain that which has relation to peoples, in such sort that while suitably guaranteeing the safety of kings, we may at the same time better guarantee that of the peoples."

After having established that that power is alone legitimate which acts according to justice and truth, which obeys and prescribes the true law, and that all legitimate power comes from above, and derives its legitimacy from itself, and not from any terrestrial will, the theory of the councils of Toledo comes to a stop. It does not regard that which is actually occurring in the world: it forgets that, with such a definition, no one here below possesses legitimate power or can fully possess it, and that, nevertheless, society has a right to exact that actual power should be legitimate. This theory knows and lays down the true principles of power; but it neglects its guarantees.

Here we come to the junction-point of the two doctrines which have ever contested, and still contest, the possession of the world. One maintains that power comes from below; that, in its origin as well as in right, it belongs to the people, to numbers; and that those who exercise it, exercise it only as delegates, as servants. This theory misunderstands the true principles and the true nature of power; but it tends to constitute those guarantees which rightfully belong to society. Considered as a theory, it maintains, and assumes to render legitimate, the despotism of numbers. But as, in practice, this despotism is impossible, it soon violates its own principle, and limits its operation to the organization of a system of guarantees, the object and result of which is to constrain actual power to become, in its conduct, rightful and legitimate power. The opposite theory, which is more profound and true at its starting-point, assigns absolute power and sovereignty to that Being alone, in whom resides all truth and justice: it refuses it, at the outset, to chiefs, as well as to peoples; it subordinates both alike to eternal laws which they did not make, and which they are equally bound to observe. It reasonably affirms that all legitimate power comes from above, that it is derived from superior reason, not from number, and that number should submit to reason; but soon, forgetting that it has placed sovereignty beyond the earth, and that no one here below is God, it becomes dazzled by its own lustre; it persuades itself, or tries to do so, that the power which comes from above, descends upon earth as full and absolute as it is at its source; it is indignant that limits should be affixed to its exercise, and if there is nothing to stop its progress, it establishes, in fact, a permanent despotism, after having denied, in principle, its legitimacy; whereas, the opposite theory, which assumes to found despotism in principle, almost invariably ends by destroying it in fact, and by establishing only a limited power.

Consequences Of The Visigothic Theory.

Such, then, are the consequences of the theory regarding power and law, conceived by the Visigothic legislators. I do not say the consequences which logically flow from it, when the theory is held in all its bearings and faithfully followed out; but the actual consequences which it almost always entails, by the natural tendency of things, and by the deviation into which they are forced by the passions of mankind.

1. The best depositaries of legitimate power, those who most probably possess a knowledge of the true law, are the ecclesiastics. Ministers of the divine law in the relations of man with God, they naturally hold the same office in the relations of man with man. It may then be presumed that, wherever this theory prevails, the political predominance of the clergy is already established, and will continue to increase. The theory is at first its symptom, and becomes afterwards its cause.
2. The political predominance of the clergy does not well accord with the principle of hereditary monarchy. The history of the Jews furnishes an example of this. The transmission of actual power taking place altogether independently of the men who are thought to possess rightful power in a higher degree than all others, is an inconsistency. The theory will, therefore, tend to make monarchy elective, or at least to place every monarch, at his accession, under the necessity of obtaining the recognition and sanction of the clergy.