The Spanish scholastic -theologian, economist, political and moral philosopher- Juan de Mariana established between the end of the 16th century and the beginning of the 17th century the bases of American constitutionalism in the 18th century.
Mariana’s influence on the Founding Fathers of the first modern republic is so evident that it is strange that there are academics -and in general intellectuals- bent on denying it. It is valid to interpret him, even if the years that distance the controversial Spanish Jesuit and monarchist who defended that sovereignty belongs to the people, not to princes, are not so many after all. And he believed that when kings violate the rights of their subjects, it is a right, and becomes a duty of the people, to depose them to restore the rule of law. They lived, the Founding Fathers and the philosopher in very different times and cultures.
But Mariana already held that “So, the law is a stable rule derived from the divine mind that prescribes what is healthy and fair and forbids the opposite”. So it was not for men to make laws but to discover them. Substitute divine mind by nature, today in the evolutionary sense of the spontaneous order of civilization, and the principle will be the same.
A supporter of the monarchy -subject to the Law and limited by the governed- before any other form of government, he recognizes that the monarchical government also “is exposed to serious dangers” and that it “often degenerates into a tyranny” so that a republic, by peoples whose customs were prone to establish it, was a legitimate form of government.
Of democracy, he warned that it falls into tyranny easily because “…in all classes of people the number of bad ones is much greater than that of the good ones, and (…) it will be easy for (…) the opinion of the worse ones to prevail over the judgment of the more prudent ones. Votes are not weighed; they are counted. And it can’t be done any other way.”
And he made it clear that “When other magistracies are created, constituting a senate or establishing judges, power is divided among several (…) The same Holy Scriptures do not seem to be inclined in favor of the monarchy, presenting us at first with judges who were established to govern the Jewish people. (…) a civil form of republican government (…) by election of those who seemed most suitable in each of the tribes (they were not known to have powers to alter national laws or customs).
But he insisted that “…it happens with everything (…) that even the best (…) to some it pleases and to others it displeases (…) it has to happen the same with the forms of government, that not because one seems better has to be accepted by peoples of different institutions and customs”. For Father Mariana, the uses and customs of the people determine that the best form of government is different for each one.
“The republic assumes that all members of the people participate in the government according to their merit, granting the best the honors and magistrates. (…) The republic has its antithesis in the popular government, and the aristocracy, in what the Greeks called the oligarchy, in which, although the public powers are entrusted to a few, they no longer attend to virtue, but to wealth (…) the tyranny which is the last and worst form of government, is also antithetical to monarchy”.
So what is tyranny for Mariana? Well, he tells us that a “…tyrant (…) stained with all manner of vices (…) enjoys power not by his merits nor by concession from the people, but by force (…) And even when he has acceded to power by the will of the people, he exercises it with violence and does not accommodate it to public utility, but to his pleasures, to his vices (…) and he strives to expel the best from the republic.”
Let what is highest in the kingdom fall (…) to prevent the citizens from rising up, he tries to ruin them by imposing new tributes every day, sowing lawsuits among the citizens and linking one war with another (…) he necessarily fears those who fear him, whom he treats as slaves (…) he suppresses all their possible guarantees and defenses, deprives them of their weapons (…) in order to crush their self-confidence (…).
Fear the tyrant (…. ) his own subjects, who, having become his own enemies, can take power away from him (…) he forbids them to talk about public affairs and uses spies so that they do not inform themselves or speak freely, which is the greatest limit to which servitude can lead, and he does not allow anyone to protest against the evils that affect them (…) he subverts the whole state, takes possession of everything by means and without respect for the laws, because he considers himself exempt from the law (…) he works in such a way that all citizens feel oppressed by all kinds of evils with a miserable life. ”
Let us remember that for Mariana when tyranny has deprived men of their property, weapons to defend themselves, and the freedom to express themselves and deal with public affairs according to their own criteria, it has “taken away all goods from the people” and it is then that “no evil can be imagined that does not fall as a calamity on the citizens.”
How did Mariana think that he had to confront tyrants? He is famous for his justification of tyrannicide as a legitimate defense when all other avenues are closed. Yet, it should begin with prudence and reason, but when these are exhausted, he advances decisively toward the right to rebellion -by whatever means necessary- as we will see in the next installment.