LEGITIMACY. 



429 



family, from which the rulers are to succeed one an- 

 other, without a fresh choice, in order to prevent the 

 dangers attendant on frequent elections. But there 

 is another and more comprehensive signification of 

 the word legitimacy, by which we are to understand 

 the order existing in a state, and established by law, 

 with respect to the form of government, and the per- 

 sons to whom it is intrusted. The historical origin 

 of this order is not to be taken into the account, but 

 merely the fact that it is established by the law, 

 (which, in theory, expresses nothing else than the 

 universal will, or the will of the people), and has 

 thus gained the form of a right. If we look to history, 

 we shall find few governments that have a claim to 

 legitimacy as having been lawful in their origin. As 

 regards the Bourbons, it is well known that Hugh 

 Capet, the founder of the third dynasty of the French 

 kings, from whom also the Bourbons descended, 

 gained the French throne, to the injury of the exist- 

 ing sovereigns, by his courage and ability, in the 

 tenth century. If it is asserted that illegitimate 

 authority was made legitimate by being transmitted 

 from one person to another, then it must be conceded, 

 that, if Napoleon had died before his abdication, and 

 left the power to his son, the latter would have been 

 a legitimate sovereign of France, and consequently 

 there \\ ould have been two legitimate dynasties in 

 the kingdom the Bourbon and the Napoleon ; but it 

 is not easily understood how mere transfer can make 

 that power legitimate which was at first illegitimate. 

 It cannot be considered the same as prescription 

 (prcEscriptio) ; for prescription only takes place when 

 a positive law, relating to the rights of private per- 

 sons, has fixed a certain period, within which some 

 result takes place ; but neither national law, nor the 

 laws of single states, fix any kind of prescription in 

 regard to the rights of a government. A ruler, in 

 truth, becomes legitimate, if the people submit to him, 

 and thus in fact, if not formally, consent to cede to 

 him the supreme dignity and power ; but this was 

 the case with Napoleon. The French people ac- 

 knowledged him their sovereign first under the title 

 of first consul, and afterwards under the title of em- 

 peror ; and the state of things thus established in 

 France, was approved even by foreign powers. The 

 French nation cannot have been forced to submit to 

 him, because, when he took the reins of the govern- 

 ment, he had come from Egypt without an army, and 

 his power was far too small to subdue the whole 

 French people. Grant that one party was unjust in 

 declaring the family of Louis XVI. to have forfeited 

 the throne, still the French princes, by their flight 

 from France, had, in a manner, banished themselves, 

 and resigned their claims to the throne; for these 

 claims could not be maintained by words merely, but 

 required action. They were not permitted to leave 

 the king, with whose person all their rights were 

 connected ; on the contrary, they were bound to de- 

 fend his pei-son and his rights, as a sovereign, even 

 at the peril of their lives. But as they regarded 

 only their own safety, and deserted France and its 

 throne, it might easily be shown that they, in fact, 

 renounced their claims, and even promoted that an- 

 archy, from which none but a mighty hand could 

 rescue their country. If now France acknowledged 

 its deliverer (for such Napoleon, at that time, indis- 

 putably appeared) as its monarch, because the old 

 dynasty suffered its claims to be overlooked, what 

 was wanting to make him a legitimate sovereign ? 

 But this legitimacy was wanting, when, on his return 

 from Elba, he undertook to resume the throne of 

 France ; for in this case, he overthrew an existing 

 political order, and occasioned a kind of anarchy. A 

 large part of France formally withstood him, and 

 refused to send representatives to the champ de Mai, 



where he intended to establish his legitimacy. More- 

 over, no foreign power recognised his authority. 

 What the event would have been if Napoleon had 

 prevailed at Waterloo, cannot be determined ; but it 

 is certain that the modern French theory of legiti- 

 macy would have been subjected to the greatest 

 difficulties. This theory, however, has never been 

 reduced to practice, but only the more limited one 

 above-explained, as is proved by history in general, 

 and, particularly, by the history of Britain, where the 

 throne of the Stuarts is now occupied by sovereigns, 

 whom all the world looks upon as legitimate, though, 

 till the death of the last pretender, they must have 

 been viewed, according to the ultra theory, as ille- 

 gitimate. This leads us to the conclusion, that the 

 proper point of view for considering legitimacy, at 

 present, in Europe, is not, in relation to the lawful 

 title to power, but only to its actual existence ; and 

 that the national law of modern Europe, while it aims 

 to put an end to the convulsions of the last thirty 

 years, is founded on the support of the present state 

 of things, with the changes confirmed by the unani- 

 mous consent of the principal European powers. 

 Hence arises a very definite notion of legitimacy, 

 wholly free from the difficulties which occur in ac- 

 counting for the lawful origin of power. For, on 

 this ground, it is no longer necessary to show how a 

 national government and dynasty was established in 

 early times, but only that it is now acknowledged. 

 The acknowledgment is that of the European powers, 

 so called by way of eminence ; that is, according to 

 the use of the term since the congress of Vienna, in 

 1815, of all those states which do not depend entirely 

 for their existence on a federative union ; or of the 

 eight powers which signed the peace of Paris ; or, in 

 a more limited sense, of the five powers which sent 

 their commissioners to the last congress. In this 

 practically admitted signification, legitimacy relates 

 not merely to the dynasty, but also to the forms of 

 government. It holds strict monarchical principles, 

 as a general rule, and allows only the few actually 

 existing exceptions ; but it would be impossible to 

 acknowledge an antimonarchical change, even though 

 it were proposed voluntarily by the sovereign him- 

 self ; for with this idea of legitimacy is closely con- 

 nected the right of the European powers to prevent 

 by force of arms, any alterations in the government, 

 which are opposed to the monarchical principles of 

 other states ; and as, in this, it has reference only to 

 the dangers which may accrue to other states from 

 the establishment of republican institutions in any 

 one, it considers only the fact of their existence, not 

 the manner of their origin. The right of armed in- 

 terference in the internal affairs of foreign states, it 

 is well known, has never been disputed, but by 

 Britain and America. Indeed, it has been maintained 

 even by philosophers (Kant, Zum ewigem Frieden 

 On perpetual Peace) who make it a fundamental ar- 

 ticle of international law, that no state should be 

 without a representative government. This right of 

 armed intervention, however, admits of serious ques- 

 tion : if it was once acknowledged, it might be used, 

 also, by republics. In addition to the importance of 

 the doctrine of legitimacy, in regard to subjects of 

 international law, it is equally important as respects 

 the internal government of a state ; as it depends 

 chiefly upon this to decide how far the acts of a gov- 

 ernment, merely usurped, can be obligatory on the 

 legitimate government, if it should be again restored. 

 This obligation can neither be maintained nor denied, 

 unconditionally. It is impossible to declare all those 

 acts of the public authority, which have taken place 

 during a long usurpation, invalid. It would be 

 equally absurd to treat as absolutely unalterable all 

 abuses of justice (confiscations, penal laws, attacks 



