Front Page Titles (by Subject) SECTION IV: New Constitution of France. * - Vindiciae Gallicae and Other Writings on the French Revolution
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SECTION IV: New Constitution of France. * - Sir James Mackintosh, Vindiciae Gallicae and Other Writings on the French Revolution 
Vindiciae Gallicae and Other Writings on the French Revolution, edited and with an Introduction by Donald Winch (Indianapolis: Liberty Fund, 2006).
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New Constitution of France.*
A dissertation approaching to completeness on the new Constitution of France would, in fact, be a vast system of political science. It would include a development of the principles that regulate every portion of Government. So immense an attempt is little suited to our present limits. But some remarks on the prominent features of the French system are exacted by the nature of our vindication. They will consist chiefly of a defence of their grand Theoretic Principle, and their most importantPractical Institution.<207>
The principle of theory which has actuated the Legislators of France has been, that the object of all legitimate Government is the assertion and protection of the Natural Rights of Man. They cannot indeed be absolved of some deviations† from the path prescribed by this great principle; few indeed compared with those of any other body of whom history has preserved any record; but too many for their own glory, and for the happiness of the human race. This principle, however, is the basis of their edifice, and if it be false, the structure must fall to the ground. Against this principle, therefore, Mr. Burke has, with great judgment, directed his attack. Appeals to natural right are, according to him, inconsistent and preposterous. A complete abdication and surrender of all natural right is made by man in entering into<208> Society, and the only rights which he retains are created by the compact which holds together the society of which he is member. This doctrine he thus explicitly asserts.—“The moment,” says he, “you abate any thing from the full rights of men each to govern himself, and suffer any artificial positive limitation on those rights, from that moment the whole organization of society becomes a consideration of convenience.” Burke, p. 152. “How can any man claim under the conventions of civil society rights which do not so much as suppose its existence—Rights which are absolutely repugnant to it?” Ibid. p. 151. To the same purpose is his whole reasoning from p. 149 to p. 155. To examine this doctrine, therefore, is of fundamental importance. To this effect it is not necessary to enter on any elaborate research into the metaphysical principles of politics and ethics. A full discussion of the subject would<209> indeed demand such an investigation.* The origin of natural rights must have been illustrated, and even their existence proved against some theorists. But such an enquiry would have been inconsistent with the nature of a publication, of which the object was to enforce conviction on the people. We are besides absolved from the necessity of it in a controversy with Mr. Burke, who himself recognizes, in the most ample form, the existence of those natural rights.
Granting their existence, the discussion is short. The only criterion by which we can<210> estimate the portion of natural right surrendered by man on entering into society is the object of the surrender. If more is claimed than that object exacts, it becomes not an object, but a pretext. Now the object for which a man resigns any portion of his natural sovereignty over his own actions is, that he may be protected from the abuse of the same dominion in other men. No greater sacrifice is therefore necessary than is prescribed by this object, the resignation of powers that in their exercise might be injurious to another. Nothing, therefore, can be more fallacious than to pretend, that we are precluded in the social state from any appeal to natural right.* It remains<211> in its full integrity and vigor, if we except that portion of it which men mutually sacrifice for protection against each other. They do not surrender all; that is not exacted by the object they have in view; and whatever<212> Government, under pretence of that surrender of natural right which is made for mutual security, assumes more than that object rigorously prescribes, is an usurpation supported by sophistry, a despotism varnished by illusion. It follows from this principle, that the surrender of right must be equal in all the members of society, as the object is to all precisely the same. In effect, society, instead of destroying, realizes and substantiates equality. In a state of nature, the equality of right is an impotent theory, which inequalities of strength and skill every moment violate. It is called into energy and effect only by society. As natural equality is not contested, and that the sum of right surrendered by every individual is equal, it cannot be denied that the remnant spared by the social compact must be equal also. Civil inequalities, or, more correctly, civil distinction, must exist in the social body, because it must possess organs destined for different functions. But political inequality<213> is equally inconsistent with the principles of natural right and the object of civil institution.*
Men retain a right to a share in their own Government, because the exercise of this right by one man is not inconsistent with its possession by another, which is evidently the only case where the surrender of a natural right can be exacted by society.
This doctrine is not more abstractly evident than it is practically important. The slightest deviation from it legitimates every tyranny. If the only criterion of Governments be the supposed convention which forms them, all are equally legitimate, for the<214> only interpreter of the convention is the usage of the Government, which is thus preposterously made its own standard. Governors must, indeed, abide by the maxims of the Constitution they administer; but what the Constitution is, must be on this system immaterial. The King of France it does not, indeed, permit to put out the eyes of the Princes of the Blood, nor the Sophi of Persia to have recourse to lettres de cachet.51 They must tyrannize by precedent, and oppress in reverent imitation of the models consecrated by the usage of despotic predecessors. But if they adhere to these, there is no remedy for the oppressed, since an appeal to the rights of Nature were treason against the principles of the social union. If, indeed, any offence against precedent, in the kind or degree of oppression, be committed, this theory may (though most inconsistently) permit resistance. But as long as the forms of any Government are preserved, it possesses, in a view of justice, (whatever be<215> its nature) equal claims to obedience. This inference is irresistible, and it is thus evident, that the doctrines of Mr. Burke are doubly refuted by the fallacy of the logic which supports them, and the absurdity of the conclusions to which they lead.
They are also virtually contradicted by the laws of all nations. Were his opinions true, the language of laws should be permissive, not restrictive. Had men surrendered all their rights into the hands of the magistrate, the object of laws should have been to announce the portion he was pleased to return them, not the part of which he is compelled to deprive them. The criminal code of all nations consists of prohibitions, and whatever is not prohibited by the law, men every where conceive themselves entitled to do with impunity. They act on the principle which this language of law teaches them, that they retain rights which no power can impair or infringe, which<216> are not the boon of society, but the attribute of their nature. The rights of magistrates and public officers are truly the creatures of Society. They, therefore, are guided, not by what the law does not prohibit, but by what it authorizes or enjoins. Were the rights of citizens equally created by social institution, the language of the civil code would be similar, and the obedience of subjects would have the same limits.
This doctrine, thus false in its principles, absurd in its conclusions, and contradicted by the avowed sense of mankind, is even abandoned by Mr. Burke himself. He is betrayed into a confession directly repugnant to his general principle.—“Whatever each man can do without trespassing on others, he has a right to do for himself, and he has a right to a fair portion of all that society, with all its combinations of skill and force can do for him.”52 Either this right<217> is universal, or it is not. If it be universal, it cannot be the offspring of convention, for conventions must be as various as forms of government, and there are many of them which do not recognize this right, nor place man in this condition of just equality. All Governments, for example, which tolerate slavery neglect this right: for a slave is neither entitled to the fruits of his own industry, nor to any portion of what the combined force and skill of society produce. If it be not universal, it is no right at all, and it can only be called a privilege accorded by some Governments, and with-held by others. I can discern no mode of escaping from this dilemma, but the avowal that these civil claims are the remnant of those metaphysic rights which Mr. Burke holds in such abhorrence, but which it seems the more natural object of society to protect than destroy.
But it may urged, that though all appeals to the natural rights of men be not precluded<218> by the social compact, though their integrity and perfection in the civil state may theoretically be admitted, yet as men unquestionably may refrain from the exercise of their rights, if they think their exertion unwise: and as Government is not a scientific subtlety, but a practical expedient for general good, all recourse to these elaborate abstractions is frivolous and futile, and the grand question in Government is not its source, but its tendency; not a question of right, but a consideration of expediency. Political forms, it may be added, are only the means of ensuring a certain portion of public felicity. If the end be confessedly obtained, all discussion of the theoretical aptitude of the means to produce it is nugatory and redundant.
To this I answer, first, that such reasoning will prove too much, and that, taken in its proper extent, it impeaches the great system of morals, of which political principles form<219> only a part. All morality is, no doubt, founded on a broad and general expediency—“Ipsa utilitas justi prope mater & equi,”53 may be safely adopted, without the reserve dictated by the timid and inconstant philosophy of the Poet. Justice is expediency, but it is expediency, speaking by general maxims, into which reason has concentrated the experience of mankind. Every general principle of justice is demonstrably expedient, and it is this utility alone that confers on it a moral obligation. But it would be fatal to the existence of morality, if the utility of every particular act were to be the subject of deliberation in the mind of every moral agent. A general moral maxim is to be obeyed, even if the inutility is evident, because the precedent of deviating more than balances any utility that may exist in the particular deviation. Political first principles are of this description. They are only moral principles adapted to the civil union of men. When I assert that a man has a right<220> to life, liberty, &c. I only mean to enunciate a moral maxim founded on general interest, which prohibits any attack on these possessions. In this primary and radical sense, all rights, natural as well as civil, arise from expediency. But the moment the moral edifice is reared, its basis is hid from the eye for ever. The moment these maxims, which are founded on an utility that is paramount and perpetual, are embodied and consecrated, they cease to yield to partial and subordinate expediency. It then becomes the perfection of virtue to consider, not whether an action be useful, but whether it be right.
The same necessity for the substitution of general maxims exists in politics as in morals. These precise and inflexible principles, which yield neither to the seductions of passion, nor the suggestion of interest, ought to be the guide of Public as well as private morals.—Acting according to the natural rights of men,<221> is only another expression for acting according to those general maxims of social morals which prescribe what is right and fit in human intercourse. We have proved that the social compact does not alter these maxims, or destroy these rights, and it incontestibly follows, from the same principles which guide all morality, that no expediency can justify their infraction.
The inflexibility of general principles is, indeed, perhaps more necessary in political morals than in any other class of actions. If the consideration of expediency be admitted, the question recurs, who are to judge of it? They are never the many whose interest is at stake: They cannot judge, and no appeal to them is hazarded. They are the few, whose interest is linked to the perpetuity of oppression and abuse. Surely that Judge ought to be bound down by the strictest rules, who is undeniably interested in the decision; and he<222> would scarcely be esteemed a wise Legislator, who should vest in the next heir to a lunatic a discretionary power to judge of his sanity or derangement. Far more necessary then is the obedience to general principles, and the maintenance of natural rights, in politics than in the morality of common life. The moment that the slenderest infraction of these rights is permitted for motives of convenience, the bulwark of all upright politics is lost. If a small convenience will justify a little infraction, a greater pretended convenience will expiate a bolder violation. The Rubicon is past. Tyrants never seek in vain for sophists. Pretences are multiplied without difficulty and without end. Nothing, therefore, but an inflexible adherence to the principles of general right can preserve the purity, consistency, and stability of a free State.
We have thus vindicated the first theoretical principle of French legis-lation. The doc-<223>trine of an absolute surrender of natural rights by civil and social man, has appeared to be deduced from inadequate premises; and to conduct to absurd conclusions, to sanctify the most atrocious despotism, to outrage the most avowed convictions of men, and, finally, to be abandoned, as hopelessly untenable by its author. The existence and perfection of these rights being proved, the first duty of law-givers and magistrates is to assert and protect them. Most wisely and auspiciously then did France commence her regenerating labours with a solemn declaration of these sacred, inalienable, and imprescriptible rights—a declaration which must be to the citizen the monitor of his duties, as well as the oracle of his rights; by a perpetual recurrence to which the deviations of the magistrate are to be checked, the tendency of power to abuse corrected, and every political proposition (being compared with the end of society) correctly and dispassionately estimated. These declara-<224>tions of the rights of men originated from the juvenile vigor of reason and freedom in the new world, where the human mind was unincumbered with that vast mass of usage and prejudice, which so many ages of ignorance had accumulated, to load and deform society in Europe. France learned this, among other lessons, from America; and it is perhaps the only expedient that can be devised by human wisdom to keep alive the public vigilance against the usurpation of partial interests, by perpetually presenting the general right and the general interest to the public eye. Thus far I trust will be found correct the scientific principle which has been the Polar Star, by the light of which the National Assembly of France has hitherto navigated the vessel of the State, amid so many tempests howling destruction around them on every side.
There remains a much more extensive and complicated enquiry, the consideration of their<225> political institutions. As it is impossible to examine all, we must limit our remarks to the most important. To speak then generally of their Constitution, it is a preliminary remark, that the application of the word Democracy to it is fallacious and illusive.—If that word, indeed, be taken in its etymological sense, as the power of the people, it is a Democracy, and so is all legitimate Government. But if it be taken in its historical sense, it is not so, for it does not resemble those Governments which have been called Democracies in ancient or modern times. In the ancient Democracies there was neither representation nor division of powers. The rabble legislated, judged and exercised every political authority. I do not mean to deny that in Athens, the Democracy of which history has transmitted to us the most monuments, there did exist some feeble controls. But it has been well remarked, that a multitude, if it was composed of Newtons, must<226> be a mob. Their will must be equally unwise, unjust, and irresistible. The authority of a corrupt and tumultuous populace has indeed by the best writers of antiquity been regarded rather as an Ochlocracy than a Democracy, as the despotism of the rabble, not the dominion of the people. It is a degenerate Democracy. It is a febrile paroxysm of the social body, which must speedily terminate in convalescence or dissolution.
The New Constitution of France is almost directly the reverse of these forms. It vests the legislative authority in the Representatives of the people, the executive in an hereditary First Magistrate, and the judicial in Judges, periodically elected, unconnected either with the Legislature or with the executive Magistrate. To confound such a constitution with the Democracies of antiquity, for the purpose of quoting historical and experimental evidence against it, is to recur to the most paltry<227> and shallow arts of sophistry.—In discussing it, on the present occasion, the first question that arises regards the mode of constituting the Legislature, and the first division of this question, which considers the right of suffrage, is of primary importance in Commonwealths. Here I most cordially agree with Mr. Burke* in reprobating the impotent and preposterous qualification by which the Assembly have disfranchised every citizen who does not pay a direct contribution equivalent to the price of three days labour. Nothing can be more evident than its inefficacy for any purpose but the display of inconsistency, and the violation of justice. But these remarks were made at the moment of discussion in France, and the plan† was combated in the Assembly with all the force of reason and elo-<228>quence by the most conspicuous leaders of the popular party. M.M. Mirabeau, Target, and Petion more particularly distinguished themselves by their opposition. But the more timid and prejudiced members of the democratic party shrunk from so bold an innovation in political systems, as justice. They fluctuated between their principles and their prejudices, and the struggle terminated in an illusive compromise, the constant resource of feeble and temporizing characters. They were content that little practical evil should in fact be produced.—Their views were not sufficiently enlarged and exalted to perceive, that the inviolability of principles is the Palladium of virtue and of freedom. The members of this description do not, indeed, form the majority of their party; but Aristocratic minority, anxious for whatever might dishonor or embarrass the Assembly, eagerly coalesced with them, and stained the infant Constitution with this absurd usurpation.<229>
An enlightened and respectable antagonist of Mr. Burke has attempted the defence of this measure. In a letter to Earl Stanhope, p. 78–79,54 it is contended, that the spirit of this regulation accords exactly with the principles of natural justice, because even in an unsocial state, the pauper has a claim only on charity, and he who produces nothing has no right to share in the regulation of what is produced by the industry of others. But whatever be the justice of disfranchising the unproductive poor, the argument is, in point of fact, totally misapplied. Domestic servants are excluded by the decree of the Assembly, though they subsist as evidently on the produce of their own labour as any other class of men in society; and to them therefore the argument of our acute and ingenious writer is totally inapplicable.* But it is the consola-<230>tion of the consistent friends of freedom, that this abuse must be short-lived. The spirit of reason and liberty, which has atchieved such mighty victories, cannot long be resisted by this puny foe. The number of primary electors is at present so great, and the importance of their single votes so proportionally little, that their interest in resisting the extension of the right of suffrage is insignificantly small. Thus much have I spoken of the usurpation of the rights of suffrage with the ardor of anxious affection, and the freedom of liberal admiration. The moment is too serious for compliment, and I leave untouched to the partizans of despotism, their monopoly of blind and servile applause.* <231>
I must avow, with the same frankness, equal disapprobation of the elements of territory and contribution which enter into the proportion of Representatives deputed by the various portions of the kingdom. Territorial or financial representation,† is a monstrous relic of ancient prejudice. Land or money cannot be represented. Men only can be represented, and population alone ought to regulate the number of Representatives which any district delegates.<232>
The next consideration that presents itself is, the nature of those bodies into which the citizens of France are to be organized for the performance of their political functions.—In this important part of the subject, Mr. Burke has committed some fundamental errors. It is more amply, more dexterously, and more correctly treated by M. de Calonne, of whose work this discussion forms the most interesting part.
The Assemblies into which the people of France are divided, are of four kinds.—Primary, Municipal, Electoral, and Administrative.
To the Municipalities belong the care of preserving the police, and collecting the revenue within their jurisdiction. An accurate idea of their nature and object may be formed by supposing the country of England uniformly<233> divided, and governed, like its cities and towns, by magistracies of popular election.
The Primary Assemblies, the first elements of the Commonwealth, are formed by all the citizens, who pay a direct contribution, equal to the price of three days labour, which may be averaged at half a Crown English. Their functions are purely electoral. They send Representatives directly to the Assembly of the Department, in the proportion of one to every hundred active citizens. This they do not through the medium of the district, as was originally proposed by the Constitutional Committee, and has been erroneously stated by Mr. Burke.55 They send, indeed, Representatives to the Assembly of the district, but it is the object of that Assembly not to depute electors to the department, but to elect the administrators of the district itself.<234>
The Electoral Assemblies of the Departments, formed by the immediate delegates of the people in their primary Assemblies, elect the Members of the Legislature, the Judges, the Administrators, and the* Bishop of the Department.
The Administrators are every where the organs and instruments of the Executive Power. As the provinces of France, under her ancient Government were ruled by Governors, Intendants, &c. appointed by the Crown, so they are now governed by these administrative bodies, who are chosen by the Electoral Assemblies of the Departments.
Such is the rude outline of that elaborate organization which the French Legislature have formed. Details are not necessary to my purpose; and I the more chearfully abstain<235> from them, because I know that they will be speedily laid before the Public by a person far more competent to deliver them with precision, and illustrated with a very correct and ingenious chart of the New Constitution of France.56
Against the arrangement of these Assemblies, many subtle and specious objections are urged, both by Mr. Burke and the exiled Minister of France. The first and most formidable is, “the supposed tendency of it to dismember France into a body of confederated Republics.”57 To this objection there are several unanswerable replies. But before I state them, it is necessary to make one distinction. These several bodies are, in a certain sense independent, in what regards subordinate and interior regulation. But they are not independent in the sense which the objection supposes, that of possessing a separate will from that of the nation, or influencing, but by their Representatives, the general sys-<236>tem of the State. Nay, it may be demonstrated, that the Legislators of France have solicitously provided more elaborate precautions against this dismemberment than have been adopted by any recorded Government.
The first circumstance which is adverse to it is the minuteness of the parts into which the kingdom is divided. They are too small to possess a separate force. As elements of the social order, as particles of a great political body, they are something; but as insulated States, they would be impotent. Had France been moulded into great masses, each of them might have been strong enough to claim a separate will; but divided as she is, no body of citizens is conscious of sufficient strength to feel their sentiments of any importance, but as constituent parts of the general will. Survey the Administrative, the Primary, and the Electoral Assemblies, and nothing will be more evident than their impotence in indivi-<237>duality. The Municipalities, surely, are not likely to arrogate independence. A 48000th part of the kingdom has not energy sufficient for separate existence, nor can a hope arise in the Assembly of such a slender community of influencing, in a direct and dictatorial manner, the counsels of a great State. Even the Electoral Assemblies of the Departments do not, as we shall afterwards shew, possess force enough to become independent confederated Republics.
Another circumstance, powerfully hostile to this dismemberment, is the destruction of the ancient provincial division of the kingdom. In no part of Mr. Burke’s work have his arguments been chosen with such infelicity of selection as in what regards this subject. He has not only erred, but his error is the precise reverse of truth. He represents as the harbinger of discord what is, in fact, the instrument of union. He mistakes the<238> cement of the edifice for a source of instability and a principle of repulsion. France was, under the ancient Government, an union of Provinces acquired at various times, and on different conditions, differing in constitution, laws, language, manners, privileges, jurisdiction, and revenue. It had the exterior of a simple Monarchy, but it was in reality an aggregate of independent States. The Monarch was in one place King of Navarre, in another Duke of Britanny, in a third Count of Provence, in a fourth Dauphin of Vienne. Under these various denominations, he possessed, at least nominally, different degrees of power, and he certainly exercised it under different forms.—The mass composed of these heterogeneous and discordant elements, was held together by the compressing force of despotism. When that compression was withdrawn, the provinces must have resumed their ancient independence, perhaps in a form more absolute than as members of a federative Repub-<239>lic. Every thing tended to inspire provincial and to extinguish national patriotism. The inhabitants of Bretagne, or Guienne, felt themselves linked together by ancient habitudes, by congenial prejudices, by similar manners, by the relics of their Constitution, and the common name of their country; but their character as members of the French Empire, could only remind them of long and ignominous subjection to a tyranny, of which they had only felt the strength in exaction, and blessed the lenity in neglect. These causes must have formed the provinces into independent Republics, and the destruction of their provincial existence was indispensible to the prevention of this dismemberment. It is impossible to deny, that men united by no previous habitude, (whatever may be said of the policy of the union in other respects) are less qualified for that union of will and force, which produces an independent Republic, than provincials on whom every circumstance<240> tended to confer local and partial attraction, and a repulsion to the common center of the national system. Nothing could have been more inevitable than the independence of those great provinces which had never been moulded and organized into one Empire; and we may boldly pronounce, in direct opposition to Mr. Burke, that the new division of the kingdom was the only expedient that could have prevented its dismemberment into a confederacy of sovereign Republics.
The solicitous and elaborate division of powers, is another expedient of infallible operation, to preserve the unity of the body politic. The Municipalities are limited to minute and local administration. The Primary Assemblies solely to elections. The Assemblies of the District to objects of administration and control of a superior class; and the Assemblies of the Departments, where this may be the most apprehended, possess functions pure-<241>ly electoral. They elect Judges, Legislators, Administrators, and Ministers of Religion, but they are to exert no authority legislative, administrative, or judicial. In any other capacity but that of executing their electoral functions, in voting an address, an instruction, or a censure, they are only simple citizens.*
But whatever danger might be apprehended from the assumption of powers by these for-<242>midable Assemblies, the depositaries of such extensive electoral powers are precluded by another circumstance, which totally disqualifies and unnerves them for any purpose but that for which they are created by the Constitution. They are biennially renewed, and their fugitive nature makes systematic usurpation hopeless. What power, indeed, could they possess of dictating to the National Assembly,† or what interest could the members of that Assembly have in obeying the mandates of those who held as fugitive and precarious a power as their own; not one of whom might, at the next election, have<243> a suffrage to bestow? The same probability gives the provincial Administrators that portion of independence which the Constitution demands. By a still stronger reason, the Judges, who are elected for six years, must feel themselves independent of constituents whom three elections may so radically and completely change. These circumstances then, the minuteness of the divisions, the dissolution of provincial ties, the elaborate distribution of powers, and the fugitive constitution of the Electoral Assemblies, seem to form an insuperable barrier against the assumption of such powers by any of the bodies into which France is organized, as would tend to produce the federal form. Thus the first great argument of Mr. Burke and M. de Calonne seems to be refuted in principles, if not in the expansion of detail.
The next objection that is to be considered is peculiar to Mr. Burke. The subordination<244> of elections has been regarded by the admirers of the French law-givers as a master-piece of legislative wisdom. It seemed as great an improvement on representative Government, as representation itself was on pure Democracy. No extent of territory is too great for a popular Government thus organized; and as the Primary Assemblies may be divided to any degree of minuteness, the most perfect order is reconcileable with the widest diffusion of political right. Democracies were supposed by philosophers to be necessarily small, and therefore feeble; to demand numerous Assemblies, and to be therefore venal and tumultuous. Yet this great discovery, which gives force and order in so high a degree to popular Governments, is condemned and derided by Mr. Burke. An immediate connection between the representative and the primary constituent, he considers as essential to the idea of representation. As the electors in the Primary Assemblies do not immediately<245> elect their law-givers, he regards their rights of suffrage as nominal and illusory.* It will in the first instance be remarked, from the statement which has already been given, that in stating three interposed elections between the primary electors and the Legislature, Mr. Burke has committed a most important error in point of fact. The original plan of the Constitutional Committee was indeed agreeable to the statement of Mr. Burke. The Primary Assemblies were to elect Deputies to the District, the District to the Department, and the Department to the National Assembly. But this plan was forcibly and successfully combated. It was represented as tending to introduce a vicious complexity into the Government, and, by making the channel<246> through which the national will passes into its public acts so circuitous, to enfeeble its energy under pretence of breaking its violence. It was accordingly radically changed. The series of three elections was still preserved for the choice of provincial Administrators, but the Electoral Assemblies in the Departments, who are the immediate constituents of the Legislature, are directly chosen by the Primary Assemblies, in the proportion of one elector to every hundred active citizens.* <247>
But to return to the general question, which is perhaps not much affected by these details, I profess I see no reason why the right of election is not as susceptible of delegation as any other civil function, why a citizen may not as well delegate the right of choosing law-givers, as that of making laws. Such a gradation of elections, says Mr. Burke, excludes responsibility and substantial election, since the primary electors neither can know, nor bring to account the members of the Assembly.
This argument has (considering the peculiar system of Mr. Burke) appeared to me to be the most singular and inconsistent that he has urged in his work. Representation itself must be confessed to be an infringement on<248> the most perfect liberty, for the best organized system cannot preclude the possibility of a variance between the popular and the representative will. Responsibility, strictly and rigorously speaking, it can rarely admit, for the secrets of political fraud are so impenetrable, and the line which separates corrupt decision from erroneous judgment so indiscernibly minute, that the cases where the Deputies could be made properly responsible are too few to be named as exceptions. Their dismission is all the punishment that can be inflicted, and all that the best Constitution can attain is a high probability of unison between the constituent and his deputy. This seems attained in the arrangements of France. The electors of the Departments are so numerous, and so popularly elected, that there is the highest probability of their being actuated in their elections, and re-elections, by the sentiments of the Primary Assemblies. They have too many points of contact with the ge-<249>neral mass to have an insulated opinion, and too fugitive an existence to have a separate interest. It is besides to be remarked, that they come immediately from among the people, with all its opinions, and predilections, and enmities, to their elective functions; and it is surely improbable, that, too shortly united for the acquisition of a corporation spirit, they should have any will or voice but that of their constituents. This is true of those cases where the merits or demerits of candidates may be supposed to have reached the Primary Assemblies. In those far more numerous cases, where they are too obscure to obtain that notice, but by the polluted medium of a popular canvas, this delegation is still more evidently wise. The peasant, or artizan, who is a primary elector, knows intimately men among his equals, or immediate superiors, who have information and honesty enough to chuse a good representative. But among this class (the only one which he can know sufficiently<250> to judge) he rarely meets with any who have genius, leisure, and ambition for that situation themselves. Of the candidates to be electors in the Department, he may be a disinterested, deliberate, and competent judge. But were “he to be complimented, or rather mocked,”58 with the direct right of electing to the legislative body, he must, in the tumult, venality, and intoxication of an election mob, give his suffrage without any possible just knowledge of the situation, character, and conduct of the candidates. So unfortunately false, indeed, seems the opinion of Mr. Burke, that this arrangement in the French Constitution is the only one that substantially, and in good faith, provides for the exercise of deliberate discrimination in the constituent.
The hierarchy of elections was obtruded on France by necessity. Had they rejected it, they had only the alternative of tumultuous electoral Assemblies, or a tumultuous Legis-<251>lature. If the primary electoral Assemblies were to be so divided as to avoid tumult, their deputies would be so numerous as to make the National Assembly a mob. If the number of electoral Assemblies were reduced according to the number of deputies that ought to constitute the Legislature, each of them would be numerous enough, on the other hand, to be also a mob. I cannot perceive that peculiar unfitness which is hinted at by Mr. Burke* in the right of personal choice to be delegated. It is in the practice of all States delegated to great officers, who are entrusted with the power of nominating their subordinate agents. It is in the most ordinary affairs of common life delegated, when our ultimate representatives are too remote from us to be within the sphere of our observation.<252>
It is remarkable that M. Calonne, addressing his work to a people enlightened by the masterly discussions to which these subjects have given rise, has not, in all the fervor of his zeal to criminate the new institutions, hazarded this objection. This is not the only instance in which the Ex-Minister has shewn more respect to the nation whom he addresses, than Mr. Burke has paid to the intellect and information of the English Public.† <253>
Thus much of the elements that are to generate the Legislative body. Concerning that body, thus constituted, various questions remain. Its unity or division will admit of much dispute, and it will be deemed of the greatest moment by the zealous admirers of the English Constitution, to determine, whether any semblance of its legislative organization could have been attained by France, if good, or ought to have been pursued by her, if attainable. Nothing has been asserted with more confidence by Mr. Burke than the facility with which the fragments of the long subverted liberty of France might have been formed into a British Constitution.* But of<254> this general position he has neither explained the mode, nor defined the limitations. Nothing is more favourable to the popularity of a work than these loftly generalities, which are light enough to pass into vulgar currency, and to become the maxims of a popular creed. Touched by definition, they become too simple and precise for eloquence, too cold and abstract for popularity. But exhibited as they are by Mr. Burke, they gratify the pride and<255> indolence of the people, who are thus taught to speak what gains applause, without any effort of intellect, and imposes silence, without any labour of confutation; what may be acquired without being studied, and uttered without being understood. Of this nature are these vague and confident assertions, which without furnishing any definite idea, afford a ready jargon for vulgar prejudice, flattering to national vanity, and sanctioned by a distinguished name. It is necessary to enquire with more precision in what manner France could have assimilated the remains of her ancient Constitution to that of the English Legislature. Three modes only seem conceivable. The preservation of the three Orders distinct. The union of the Clergy and Nobility in one upper Chamber, or some mode of selecting from these two Orders a body like the House of Lords in England. Unless the insinuations of Mr. Burke point to one or other of these schemes, I cannot divine their meaning. The<256> first mode (the three Orders sitting in separate houses with equal privileges) would neither have been congenial in spirit nor similar in form to the Constitution of England. To convert the Convocation into an integrant and co-ordinate Member of our Legislature, would give it some semblance of the structure; but it would be a faint one. It would be necessary to arm our Clergy with an immense mass of property, rendered still more formidable by the concentration of great portions in the hands of a few, to constitute it in effect the same body with the Nobility, by granting them the monopoly of great benefices, and to bestow on this clerico-military aristocracy, in its two shapes of Priesthood and Nobility, two separate and independent voices in Legislation. This double body, from its necessary dependence on the King, must necessarily have in both forms become the organ of his voice. The Monarch would thus possess three negatives, one avowed and disus-<257>ed, two latent and in perpetual activity on the single voice which impotent and illusive formality had yielded to the Third Estate. Such and much more must the Parliament of England become before it could in any respect resemble the division of the French Legislature, according to those ancient Orders which formed the Gothic assemblies of Europe. So monstrous did the arrangement appear, that even under the reign of Despotism, the second plan was proposed by M. Calonne* —that the Clergy and Nobility should form an Upper House, to exercise conjointly with the King and the Commons the Legislative Authority. It admits, however, of the clearest proof, that<258> such a Constitution would have been diametrically opposite in its spirit and principles to the English Government. This will at once be evident from the different description of the body of Nobles in France and England. In England they are a small body, united to the mass of the people by innumerable points of contact, receiving from it perpetual new infusions, and returning to it, undistinguished and unprivileged, the majority of their children. In France they formed an immense insulated cast, separated from society by every barrier that prejudice or policy could raise, receiving few plebeian accessions, and precluded, by the indelible character of nobility, the equal patrimony of all their children, from the possibility of their most remote descendants being restored to the general mass. The Nobles of England are a Senate of 200. The Noblesse of France were a tribe of 200,000. Nobility is in England only hereditary, so far as its professed object, the sup-<259>port of a hereditary Senate demands. It is therefore descendible only to one heir. Nobility in France was as widely inheritable as its real purpose, the maintenance of a privileged cast, prescribed. It was therefore necessarily descendible to all male children.
There are other points of contrast still more important. The Noblesse of France were at once formidable from their immense body of property, and dependent from the indigence of their Patrician rabble of cadets, whom honour inspired with servility, and servility excluded from the path to independence. They in fact possessed so large a portion of the landed property, as to be justly, and almost exclusively considered as the landed interest of the kingdom. To this formidable property were added the revenues of the Church, monopolized by the Children. The younger branches of these opulent families had in general no patrimony but their honours and their sword. They<260> were therefore reduced to seek fortune and distinction in military dependence on the Crown. If they were generous, the habits of military service devoted them, from loyalty; if they were prudent, the hope of military promotion devoted them, from interest, to the King.—How immense therefore and irresistible would the Royal influence have been in elections, where the majority of the voters were the servants and creatures of the Crown? What would be thought in England of a House of Lords, which, while it represented or contained the whole landed interest of the kingdom, should necessarily have a majority of its members septennially or triennially nominated by the King. Yet it would still yield to the French Upper House of M. Calonne; for the monied and commercial interests of England, which would continue to be represented by the Commons, are important and formidable, but in France they are comparatively insignificant. It would have been a<261> Government where the Aristocracy could have been strong only against the people, impotent against the Crown. This second arrangement then is equally repugnant to the theory of the British Constitution as the first. There remains only some mode of selection of a body from amidst the Nobility and Clergy to form an Upper House, and to this there are insuperable objections. Had the right of thus forming a branch of the Legislature by a single act of prerogative been given to the King, it must have strengthened his influence to a degree terrible at any period, but fatal in the moment of political reform. Had any mode of election by the Provinces, or the Legislature, been adopted, or if they had been vested with any control on the nomination of the Crown, the new dignity would have been sought with an activity of corruption and intrigue, of which, in such a national convulsion, it is impossible to estimate the danger. No general principle of selection, such as that<262> of opulence or antiquity, would have remedied the evil, for the excluded and degraded Nobles would feel the principle, that nobility is the equal and inalienable patrimony of all. By the abolition of nobility, no nobleman was degraded, for to degrade is to lower from a rank that continues to exist in society. No man can be degraded when the rank he possessed no longer exists. But had the rank of nobility remained in the mode of which we have been speaking, the great body of the Nobles would indeed, in a proper and penal sense, have been degraded, the new dignity of their former Peers would have kept alive the memory of what they once possessed, and provoked them to enterprizes far more fatal than resentment of an indignity, that is at least broken by division, and impartially inflicted on the greatest and most obscure.
So evident indeed was the impossibility of what Mr. Burke supposes attainable with such<263> ease, that no party in the Assembly suggested the imitation of the English model, the system of his oracles in French politics.* M.M. Lally and Mounier, approached more near to the Constitution of the American States. They proposed a Senate to be chosen for life by the King, from a certain number of candidates to be offered to his choice by the provinces.† This Senate was to enjoy an absolute negative on legislative acts, and to form the great national court for the trial of public delinquents. In effect, such a body would have formed a far more vigorous Aristocracy than<264> the English Peerage. The latter body only preserves its dignity by a wise disuse of its power. Potentia ad impotentiam abusi59 would otherwise be descriptive of their fate. But the Senate of M. Mounier would be an Aristocracy moderated and legalized, which, because it appeared to have less independence, would in fact be emboldened to exert more. Deriving their rights equally with the Lower House from the people, and vested with a more dignified and extensive trust, they would neither shrink from the conflict with the Commons nor the King. The permanence of their authority must give them a superiority over the former; the speciousness of their cause over the latter: and it seems probable, that they must have terminated in subjugating both. Those who suppose that a Senate for life might not be infected by the corporation spirit, may consider the ancient judicatures of France, who were as keenly<265> actuated by that spirit, as any body of hereditary Nobles that ever existed.
But to quit the details of these systems—a question arises for our consideration of a more general and more difficult nature—Whether a simple representative Legislature, or a Constitution of mutual control, be the best form of Government?* —To examine this question at length is inconsistent with the object and limits of the present publication (which already grows insensibly beyond its intended size) but a few general principles may be hinted, on which the decision of the question perhaps chiefly depends.
1. It will not be controverted, that the object of a representative Legislature is to col-<266>lect the general will. To accord with this principle, there must be the same unity in the representative as in the originalwill.—That will is one. It cannot therefore, without solecism, be doubly represented. The social body supposes a perfect unity, and no man’s will can have two discordant organs. Any absolute† negative opposed to the national will, decisively spoken by its Representatives, is radically null, as an usurpation of popular sovereignty. Thus far does the abstract principle of a representative Government condemn the division of the Legislature.
2. All bodies possessed of effectual control have a tendency to that great evil, which all laws have hitherto fostered, though it be the end of Legislation to repress, the preponde-<267>rance of partial interests. The spirit of corporation infallibly seizes every Public body, and the creation of every new Assembly creates a new, dexterous, and vigilant enemy to the general interest. This alone is a sufficient objection to a controling Senate. Such a body would be most peculiarly accessible to this contagious spirit. A representative body itself can only be preserved from it by those frequent elections which break combinations, and infuse into it new portions of popular sentiments. Let us grant that a popular assembly may sometimes be precipitated into unwise decision by the seductions of eloquence, or the rage of faction. Let us grant that a controling Senate might remedy this evil, but let us recollect, that it is better the Public interest should be occasionally mistaken than systematically opposed.
3. It is perhaps susceptible of proof, that these Governments of balance and control<268> have never existed but in the vision of theorists. The fairest example will be the Constitution of England. If it can be proved that the two members of the Legislature, who are pretended to control each other, are ruled by the same class of men, the control must be granted to be imaginary. That opposition of interest, which is supposed to preclude all conspiracy against the people, can no longer exist. That this is the state of England, the most superficial observation must evince. The great proprietors, titled and untitled, possess the whole force of both Houses of Parliament that is not immediately dependent on the Crown. The Peers have a great influence in the House of Commons. All political parties are formed by a confederacy of the members of both Houses. The Court party, by the influence of the Crown, acting equally in both, supported by a part of the independent Aristocracy. The opposition by the remainder of the Aristocracy, whether Commoners<269> or Lords. Here is every symptom of collusion: No vestige of control. The only case indeed, where it could arise, is where the interest of the Peerage is distinct from that of the other great proprietors. But these separate interests are few and paltry, and have established so feeble a check, that the history of England will not afford one undisputed example of this vaunted control.
The rejection of the Peerage Bill of George the First is urged with great triumph by De Lolme.60 There it seems the Commons rejected the bill, purely actuated by their fears, that the Aristocracy would acquire a strength from a limitation on the number of Peers, destructive of that balance of power which forms the Constitution. It is unfortunate that political theorists do not consult the history as well as the letter of legislative proceedings. It is a matter of perfect notoriety, that the rejection of that bill was occasioned by the secession of<270> Sir Robert (then Mr.) Walpole from the Cabinet, and the opposition of him and his party to it was merely as a ministerial measure. The debate was not guided by any general legislative principles. It was simply an experiment on the strength of two parties contending for power. The reader will no doubt feel a high reverence for the Constitutional principles of that Parliament, when he is informed that to it we owe the Septennial Act!61
In fact, if such a check existed in much greater force, it would be of little importance to the general question. “Through a diversity of members and interests,” if we may believe Mr. Burke, “general Liberty had as many securities as there were separate views in the several Orders.”62 And if by general Liberty be understood the power of the collective body of these Orders, the position is undeniable. But if it means, what it ought to mean, the liberty of mankind,<271> nothing can be more false. The higher class in society, whatever be their names, of Nobles, Bishops, Judges, or possessors of landed and commercial wealth, have ever been united by a common view, far more powerful than those petty repugnancies of interest to which this variety of description may give rise. Whatever may be the little conflicts of ecclesiastical with secular, of commercial with landed opulence, they have one common interest to preserve, the elevated place to which the social order has raised them. There never was, or will be, in civilized society, but two grand interests, that of the Rich and that of the Poor. The differences of interest among the several classes of the rich will be ever too slender to preclude their conspiracy against mankind. In the mean time, the privileges of their several Orders will be guarded, and Mr. Burke will decide that general Liberty is secure!—It is thus that a Polish Palatine harangues in the Diet on the liberty of Poland,<272> without a blush at the recollection of his bondsmen.—It is thus that the Assembly of Jamaica, amidst the slavery and sale of Men, profanely appeal to the principles of freedom. It is thus that Antiquity, with her pretended political philosophy, cannot boast one philosopher who questioned the justice of servitude, nor with all her pretended public virtue, one philanthropist who deplored the misery of slaves.
One circumstance more remains concerning the Legislature—the exclusion of the King’s Ministers from seats in it. This self-denying Ordinance I must unequivocally disapprove.—I regard all disfranchisement as equally unjust in its principle, destructive in its example, and impotent for its pretended purpose. The presence of Ministers in the Assembly would have been of great utility in a view of business, and perhaps, by giving publicity to their opinions, favorable on the whole to Public<273> Liberty. To exclude them from the Legislature, is to devote them to the purposes of the Crown, by giving them no interest in the Constitution. The fair and open influence of Ministers was never formidable. It is only that indirect and secret influence which this exclusion will perhaps enable them to practise with more impunity and success. It is also to be observed, that it is equivalent to an exclusion of all men of superior talent from the Cabinet. The object of liberal ambition will be a seat in the Supreme Assembly; and no man of genius will accept, much less pursue, branded and degraded offices, which banish him from the natural sphere of his powers.
Of the Plan of Judicature formed by the Assembly, I have not yet presumed to form a decided opinion. It certainly approaches to an experiment, whether a code of laws can be formed sufficiently simple and intelligible to supercede the necessity of lawyers<274> by profession.* Of all the attempts of the Assembly, the complicated relations of civilized society seem to render this the most problematical. They have not, however, concluded this part of their labours, and the feebleness attributed to the elective judicatures of the Departments may probably be remedied by the dignity and force with which they will invest the two high national tribunals (La Cour de Cassation & la Haute Cour Nationale) which they are about to organize.*
On the subject of the Executive Magistracy, there is a preliminary remark, which the advocates as well as the enemies<275> of the Revolution have too much neglected. The Assembly have been accused of violating their own principles by the assumption of executive powers, and their advocates have pleaded guilty to the charge. It has been forgotten that they had a double function to perform. They were not only to erect a new Constitution, but they were to guard it from destruction. Hence a necessary assumption of executive powers in the crisis of a Revolution. Had superstitious tenderness for the principle confined them to theoretical erections, which the breath of power was every day destroying, they would indeed have merited those epithets of visionaries and enthusiasts with which they have been loaded. To judge, therefore, of the future executive magistracy of France by its present state, is absurd. We must not, as has been justly observed, mistake for the new political edifice what is only the scaffolding necessary to its erection. The powers of the first magistrate<276> are not to be estimated by the debility to which the convulsions of the moment have reduced them, but by the provisions of the future Constitution.
The portion of power with which the King of France is invested, is certainly as much as pure theory demands for the executive magistrate. An organ to collect the Public will, and a hand to execute it, are the only necessary constituents of the social union. The popular representative forms the first; the executive officer the second. To the point where this principle would have conducted them, the French have not ventured to proceed. It has been asserted by Mr. Burke, that the French King has no negative on laws. This, however, is not true. The minority who opposed any species of negative in the Crown was only 100, when 800 members were present in the Assembly. The King possesses the power of with-holding his<277> assent to a proposed law for two successive Assemblies. If it is proposed by the third, his assent, indeed, becomes necessary. This species of suspensive veto is with great speciousness and ingenuity contended by M. Necker to be more efficient than the obsolete negative of the English Princes.* A mild and limited negative may, he remarked, be exercised without danger or odium, while a prerogative, like the absolute veto, must sink into impotence from its invidious magnitude. It is too great to be exercised, and must, as it has in England, be tacitly abandoned by disuse. Is not that negative really efficient, which is only to yield to the national voice, spoken after four years deliberation, and in two successive elections of Representatives? What Monarch of a free State, I will be bold to ask, could with decency or impunity oppose a negative the most unlimited in law to<278> the public sentiment, thus explicitly and constantly expressed? The most absolute veto must, if the people persist, prove eventually suspensive. A suspensive veto is therefore equivalent to an absolute one, and being of less invidious exercise, confers more real power. “The power of remonstrance,”† says Mr. Burke, “which was anciently vested in the Parliament of Paris, is now absurdly entrusted to the executive magistrate.”63 One might have supposed that this was a power of remonstrance like that of the Parliament of Paris to the Legislature. It is however, as we have seen, a power of a very different<279> description, a power of remonstrating to the people against their Representatives, the only share in legislation (whether it be nominally absolute, or nominally limited) that a free Government can entrust to its supreme magistrate.‡
In the Constitution of France, war is to be declared by a decree of the Legislature, on the proposition of the King. He possesses exclusively the initiative. It cannot originate with any member of the Legislature. The first remark suggested by this arrangement is, that the difference between it and the theory of the English Constitution is purely nominal.<280> That theory supposes an independent House of Commons, a rigorous responsibility, and an effective power of impeachment. Were these in any respect realized, it is perfectly obvious, that a decision for war must in every case depend on the deliberation of the Legislature. No Minister would hazard hostilities without the sanction of a body who held a sword suspended over his head; and, as this theory supposes the House of Commons perfectly uninfluenced by the Crown, the ultimate decision could in no respect depend on the executive magistrate, and no power remains to him but the initiative. The forms indeed, in the majority of cases, aim at a semblance of the theory. A Royal message announces imminent hostilities, and a Parliamentary address of promised support, re-echoes the message. It is this address alone which emboldens and authorizes the Cabinet to proceed in their measures. The Royal message corresponds to the French initiative;<281> and if the purity of our practice bore any proportion to the speciousness of our theory, the address would be a decree of the Legislature, adopting the proposition of the King. No man therefore, who is a sincere and enlightened admirer of the English Constitution, as it ought, and is pretended to exist, can consistently reprobate an arrangement which differs from it only in the most frivolous circumstances. To speak of our practical Government would be an outrage on common sense. There no trace of those discordant powers which are supposed in our theoretical Constitution remains. The most beautiful simplicity prevails. The same influence determines the executive and legislative power. The same Cabinet makes war in the name of the King, and sanctions it in the name of the Parliament. But France, destitute of the cement which united these jarring powers, was reduced to imitate our theory instead of our practice. Her Exchequer was<282> ruined. She could not, therefore, adopt this admirable system.
Supposing however, but not granting, that this formidable prerogative was more abridged in France than it is by the theory of our Government, the expediency of the limitation remains to be considered. The chief objections are its tendency to favour the growth of foreign factions, and to derogate from the promptitude so necessary to military success. To both these objections there is one general answer. They proceed on the supposition of the frequency of wars. They both suppose, that France will retain part of that political system which she has disclaimed. But if she adheres with good faith to her declarations, war must become to her so rare an occurrence, that the objections become insignificant. Foreign Powers have no temptation to purchase factions in a State which does not interpose in foreign politics; and a wise nation, which re-<283>gards victorious war as not less fatally intoxicating to the victors, than widely destructive to the vanquished, will not surrender their probability of peace from the dread of defeat, nor purchase the hope of victory by provisions for facilitating war. France, after having renounced for ever the idea of conquest, can, indeed, have no source of probable hostility but her colonies. Colonial possessions have been so unanswerably demonstrated to be commercially useless, and politically ruinous, that the conviction of philosophers cannot fail of having, in due time, its effect on the minds of enlightened Europe, and delivering the French Empire from this cumbrous and destructive appendage.
But even were the exploded villainy that has obtained the name of politics to be readopted in France, the objections would still be feeble. The first, which must be confessed to have a specious and formidable air,<284> seems evidently to be founded on the history of Sweden and Poland, and on some facts in that of the Dutch Republic. It is a remarkable example of those loose and remote analogies by which sophists corrupt and abuse history. Peculiar circumstances in the situation of these States disposed them to be the seat of foreign factions. It did not arise from war being decided by public bodies, for if it had, it must have existed in ancient Rome and Carthage—in modern Venice, and Switzerland—in the republican Parliament of England, and in the Congress of the United States of America.— Holland too, in her better and more vigorous days, was perfectly exempt from this evil.—No traces of it appear in her history till the age of Charles II. and Louis XIV. when, divided between jealousy of the commerce of England and dread of the conquests of France, she threw herself into the arms of the House of Orange, and forced the partizans of freedom into a<285> reliance on French support. In more recent periods, domestic convulsions have more fatally displayed her debility, and too clearly evinced, that of that splendor which she gained from the ignorant indolence of the world, she now only retains the shadow, by the indulgence and courtesy of Europe. The case of Sweden is with the utmost facility explicable. An indigent and martial people, whether it be governed by one or many despots, will ever be sold by its tyrants to the enterprizes of opulent ambition; and recent facts have proved, that a change in the Government of Sweden has not changed the stipendiary spirit of its military system. Poland is an example still less relevant. There an independent anarchy of despots naturally league themselves variously with foreign Powers. Yet Russian force has done more than Russian gold; and Poland has suffered still more from feebleness than venality. No analogy can be supposed to exist between these<286> cases and that of France. I hazard the issue of the discussion on one plain point. All the Powers of Europe could not expend money enough to form and maintain a faction in their interest in France. Let us suppose it possible that the Legislature of this vast and opulent kingdom could once be corrupted; but let us recollect, that a series of Legislatures, collected by the most extensively popular election, are to be in succession purchased, to obtain any permanent ascendant, and it will be evident, that Potosi would be unequal to the attempt. If we consider that their deliberations are conducted under the detecting eye of a vigilant and enlightened people, the growth of foreign factions will appear still more chimerical. All the States which have been quoted were poor, therefore cheaply corrupted; their Government was an Aristocracy, and was therefore only to be once bought; the people were ignorant, and could therefore be sold by their Governors with impunity. The reverse of<287> these circumstances will save France, as they have saved England, from this “worst of evils.”64 Their wealth makes the attempt difficult; their discernment makes it hazardous; their short trust of power renders the object worthless, and its permanence impossible. That subjecting the decision of war to the deliberations of a popular assembly will, in a great measure, derogate from its energy, and unnerve it for all destructive purposes, I am not disposed to deny. France must, however, when her constitution is cemented, be, in a defensive view, invincible; and if her Government is unfitted for aggression, it is little wonder that the Assembly should have made no provision for a case which their principles do not suppose.
This is the last important arrangement respecting the executive power which Mr. Burke has considered, and it conducts us to a subject of infinite delicacy and difficulty, which<288> has afforded no small triumph to the enemies of the Revolution—The Organization of the Army. It must be confessed, that to conciliate an army of a hundred and fifty thousand men, a navy of a hundred ships of the line, and a frontier guarded by a hundred fortresses, with the existence of a free Government, is a tremendous problem. It cannot be denied, that history affords no example in which such a Public force has not recoiled on the State, and become the ready instrument of military usurpation. And if the State of France were not perfectly unexampled, and to which these historical arguments are not therefore applicable or pertinent, the inference would be inevitable. An army, with the sentiments and habits which it is the system of modern Europe to inspire, is not only hostile to freedom, but incompatible with it. A body of men possessed of the whole force of a State, and systematically divested of every civic sentiment, is a monster that no<289> rational polity can tolerate, and every circumstance clearly shews it to be the object of French legislation to destroy it, not as a body of armed citizens—but as an Army. This is wisely and gradually to be effected. Two grand operations conduct to it—arming the people, and unsoldiering the army.* The first of these measures, the formation of the municipal army, certainly makes the nation independent of its military servants. An army of four millions can never be coerced by one of a hundred and fifty thousand; neither can they have a separate sentiment from the body of the nation, for they are the same. Whence the horror of Mr. Burke at thus arming the nation, under the title of a municipal army, has arisen, it is even difficult to conjecture. Has it ceased to be true, that the defence of a free State is only to be committed to its citizens? Are the long opposition to a standing<290> army in England, its tardy and jealous admission, and the perpetual clamor (at length illusively gratified) for a militia, to be exploded, as the gross and uncourtly sentiments of our unenlightened ancestors? The Assembly have put arms into the hands of the citizens, and by that means have for ever precluded both their own despotism and the usurpation of the army. “They must rule,” says Mr. Burke, “by an army.”65 If that be their system, their policy is still more wretched than he has represented it. For they systematically strengthen those who are to be governed, while they systematically enfeeble their engine of Government. They fortify the people, and weaken the army. They reduce themselves and their army to dependence on the nation, whom alone they strengthen and arm. A Military Democracy, if it means a deliberative body of soldiers, is the most execrable of tyrannies; but if it be understood to denote a popular Government, where every citizen<291> is disciplined and armed, it must then be pronounced to be the only free Government which retains within itself the means of preservation.
The professed soldiers, rendered impotent to any dangerous purpose by the strength of the municipal army, are by many other circumstances invited to throw off those abject and murderous habits which form the perfection of a modern soldier. In other States the soldiery were in general disfranchised. They were too poor to be citizens. But in France a great part may enjoy the full rights of citizens. They are not then likely to sacrifice their superior to their inferior capacity, nor to elevate their military importance by committing political suicide. They feel themselves servile as soldiers, they are conscious of being sovereign as citizens. That diffusion of political knowledge among them, which is ridiculed and reprobated by Mr.<292> Burke, is the only remedy that could have fortified them against the seduction of an aspiring Commander. That alone will teach them, that in lending themselves to his views, they submit themselves to his yoke; that to destroy the liberty of others, they must sacrifice their own. They have, indeed, gigantic strength, and they may crush their fellow citizens, by dragging down the social edifice, but they must themselves be overwhelmed by its fall. The Despotism of Armies is the Slavery of Soldiers. An army cannot be strong enough to tyrannize, that is not itself cemented by the most absolute interior tyranny. The diffusion of these great truths will perpetuate, as they have produced, a revolution in the character of the French soldiery. They will therefore, in the sense of despotic disciplinarians, cease to be an army; and while the soldiers assume the sentiments of citizens, and the citizens acquire the discipline of soldiers, the military character will be diffused, and the military profession an-<293>nihilated. Military services will be the duty of all citizens, and the trade of none.* To this object their system evidently and inevitably tends. If a separate body of citizens, as an army, is deemed necessary, it will probably be formed by rotation. A certain period of military service will be exacted from every citizen, and may, as in ancient Republics, be made a necessary qualification for the pursuit of civil honors. In the present state of France, the national guard is a sufficient bulwark against the enemy, should it relapse into its ancient habits; and in its future state, no body susceptible of such dangerous habits<294> seems likely to exist. “Gallos quoque in bellis floruisse audivimus,”66 may indeed be the sentiment of our children. The glory of heroism, and the splendor of conquest, have long enough been the patrimony of that great nation. It is time that it should seek a new glory, and a new splendor, under the shade of freedom, in cultivating the arts of peace, and extending the happiness of mankind.—Happy if the example of that “Manifesto of Humanity”67 which has been adopted by the Legislators of France into their constitutional code, made an adequate impression on surrounding nations.
[* ]I cannot help exhorting those who desire to have accurate notions on the subject of this section, to peruse and study the delineation of the French Constitution, which, with a correctness so admirable, has been given by Mr. Christie. [Thomas Christie, Letters on the Revolution of France (London: J. Johnson, 1791).]
[† ]I particularly allude to their Colonial policy; but I think it candid to say, that I see in their full force the difficulties of that embarrassing business.
[* ]It might, perhaps, not be difficult to prove, that far from a surrender, there is not even a diminution of the natural rights of men by their entrance into Society. The existence of some union with greater or less permanence and perfection of public force for public protection (the essence of Government) might be demonstrated to be coeval, and co-extended with man. All theories therefore, which suppose the actual existence of any state antecedent to the social, might be convicted of futility and falsehood.
[* ]“Trouver une forme d’association qui defende & protege de toute la force commune la personne & les biens de chaque associé, & par laquelle chacun s’unissant a tous n’obeisse pourtant qu’a lui-même & reste aussi libre qu’auparavant?” Rousseau du Contrat Social, livre i. chap. vi. [“To find a form of association which defends and protects the person and goods of each associate with the force of all, and by which each uniting himself with all obeys only himself and remains as free as before?” Rousseau, The Social Contract, bk. 1, chap. 6, from The Collected Writings of Rousseau, vol. 4, ed. Roger D. Masters and Christopher Kelly (Hanover and London: Published for Dartmouth College by University Press of New England, 1990–2004).] I am not intimidated from quoting Rousseau by the derision of Mr. Burke. Mr. Hume’s report of his literary secret seems most unfaithful. [The secret, according to Burke’s version of Hume’s report, was that Rousseau employed paradox to excite attention to his work; see Burke, Reflections, 277.] The sensibility, the pride, the fervor of his character, are pledges of his sincerity; and had he even commenced with the fabrication of paradoxes, for attracting attention, it would betray great ignorance of human nature to suppose, that in the ardor of contest, and the glory of success, he must not have become the dupe of his own illusions, a convert to his own imposture. It is indeed not improbable, that when rallied on the eccentricity of his paradoxes, he might, in a moment of gay effusion, have spoken of them as a sport of fancy, and an experiment on the credulity of mankind. The Scottish philosopher, inaccessible to enthusiasm, and little susceptible of those depressions and elevations, those agonies and raptures, so familiar to the warm and wayward heart of Rousseau, neither knew the sport into which he could be relaxed by gaiety, nor the ardor into which he could be exalted by passion. Mr. Burke, whose temperament is so different, might have experimentally known such variation, and learnt better to discriminate between effusion and deliberate opinion.
[* ]“But as to the share of power, authority and direction which each individual ought to have in the management of a state, that I must deny to be among the direct original rights of man in civil society.” [Burke, Reflections, 150–51.] This is evidently denying the existence of what has been called political, in contradistinction to civil liberty.
[51. ]A warrant to hold a subject without trial that was signed by the king and minister. For many revolutionaries warrants epitomized the arbitrary nature of justice under the ancien régime.
[52. ]Burke, Reflections, 150.
[53. ]“And so does Expedience herself, the mother, we may say, of justice and right.” Horace, Satires, in Satires, Epistles, and Ars poetica, trans. H. Rushton Fairclough (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1978), 40–41 (I.iii.98).
[* ]P. 281–83.
[† ]For the history of this decree, the 27th and 29th days of October, 1789, see the Procès verbaux of these days.—See also the Journal de Paris, No. 301, & Les Revolutions de Paris, No. 17, p. 73, & seq. These authorities amply corroborate the assertions of the text. [See E. Madival and E. Laurent, Archives Parlementaires 1787–1860, 1e série, 99 vols., vols. 1–82 (Paris: Dupont, 1879–1914), vols. 83–99 (Paris: 1961–95), 9:589–601; Journal de Paris, no. 301; Les Révolutions de Paris, no. 17, p. 73 ff.]
[54. ]Catharine Macaulay, Observations on the Reflections of the Right Hon. Edmund Burke, on the Revolution in France, in a letter to the Right Hon. the Earl of Stanhope (London, 1790), 78–79.
[* ]It has been very justly remarked, that even on the idea of taxation, all men have equal rights of election. For the man who is too poor to pay a direct contribution to the State, still pays a tax in the increased price of his food and cloaths. It is besides to be observed, that life and liberty are more sacred than property, and that the right of suffrage is the only shield that can guard them.
[* ]“He who freely magnifies what has been nobly done and fears not to declare as freely what might have been done better, gives you the best covenant of his fidelity. His highest praise is not flattery and his plainest advice is praise.” Milton’s Areopagitica. [John Milton, “Areopagitica,” in The Works of John Milton, ed. F. A. Patterson, 18 vols. (New York: Columbia University Press, 1931–40), 4:294–95.]
[† ]Montesquieu, I think, mentions a federative Republic in Lycia, where the proportion of Representatives deputed by each State was in a ratio compounded of its population and contribution. [Montesquieu, Spirit of the Laws, bk. 9, chap. 3.] There might be some plausibility in this institution among confederated independent States, but it is grossly absurd in a Commonwealth, which is vitallyOne. In such a state, the contribution of all being proportioned to their capacity, it is relatively to the contributors equal, and if it can confer any political claims, they must derive from it equal rights.
[55. ]Burke, Reflections, 282.
[* ]Every Department is an Episcopal See.
[56. ]Christie, Letters on the Revolution of France.
[57. ]Burke, Reflections, 143.
[* ]Compare these remarks with the reasoning of M. Calonne under the head, “Que faut-il penser de l’etablissement perpetuel de 83 Assemblées, composées chacune de plus 600 citoyens, chargées de choix des Legislateurs Supremes, du choix des Administrateurs Provinciaux, du choix des Juges, du choix des Principaux Ministres du Culte, & ayant en consequence le droit de se mettre en activité toutes fois & quantes?” [“What must one think of the perpetual establishment of 83 Assemblies, each composed of at least 600 citizens, charged with choosing the Supreme Legislators, the Provincial Administrators, the Judges, the Principal Ministers of Religion, and having in consequence the right of putting it into action at any time or in any place.” C. A. Calonne, De l’état de la France, présent et à venir, par M. de Calonne ministre d’état (Londres: T. Spilsbury & fils, 1790), 358–72.] The objection which we are combating is stated with great precision by M. de Calonne, from p. 358 to p. 372 of his work. The discussion must be maturely weighed by every reader who would fathom the legislation of France.
[† ]I do not mean that their voice will not be there respected. That would be to suppose the Legislature as insolently corrupt as that of a neighbouring Government of pretended freedom. I only mean to assert, that they cannot possess such a power as will enable them to dictate instructions to their Representatives as authoritatively as Sovereigns do to their Embassadors; which is the idea of a confederated Republic.
[* ]P. 298. “For what are these Primary Electors complimented, or rather mocked with a choice?—They can never know any thing of the qualities of him that is to serve them, nor has he any obligation to serve them.”
[* ]For a charge of such fundamental inaccuracy against Mr. Burke, the Public will most justly and naturally expect the highest evidence. I do therefore boldly appeal to the Decret sur la nouvelle Division du Royaume, Art. 17.—to the Procés Verbal of the Assembly for the 22d Dec. 1789. [See Archives Parlementaires, 10:714–52.] If this evidence demanded any collateral aid, the authority of M. Calonne (which it is remarkable that Mr. Burke should have overlooked) corroborates it most amply. “On ordonne que chacune de ces Assemblées (Primaires) nommera un Electeur a raison de 100 citoyens actifs.”—Calonne, p. 360. “Ces cinquantes mille Electeurs (des Departements) choisis de deux ans en deux ans parles Assemblees Primaires.” Id. ibid. [“It is decreed that each of these (Primary) Assemblies will name one elector for every 100 active citizens.” “These 50,000 electors (of the Departments) chosen every two years by the PRIMARY ASSEMBLIES,” Calonne, De la France, 360.] The Ex-Minister, indeed, is rarely to be detected in any departure from the solicitous accuracy of professional detail.
[58. ]Burke, Reflections, 298.
[* ]“Of all the powers to be delegated by those who have any real means of judging, that most peculiarly unfit is what relates to a personal choice.” Burke, p. 298.
[† ]Though it may, perhaps, be foreign to the purpose, I cannot help thinking one remark on this topic interesting. It will illustrate the difference of opinion between even the Aristocratic party in France and the rulers of England.—M. Calonne rightly states it to be the unanimous instruction of France to her Representatives, to enact the equal admissibility of all citizens to public employ!—England adheres to the Test Act! The arrangements of M. Necker for elections to the States General, and the scheme of M.M. Mounier and Lally Tolendahl for the new Constitution, included a representation of the people nearly exact. Yet the idea of it is regarded with horror in England!—The highest Aristocrates of France approach more nearly to the creed of general liberty than the most popular politicians of England, of which these two circumstances are signal proofs. Calonne [De la France], p. 383.
[* ]To place this opinion in a stronger point of light, I have collected the principal passages in which it is announced or insinuated. “In your Old States you possessed that variety of parts, corresponding with the various descriptions of which your community was happily composed.” Burke, p. 123. “If diffident of yourselves, and not clearly the almost obliterated Constitution of your ancestors, seeing you had looked to your neighbours in this land, who had kept alive the principles and models of the old common law of Europe meliorated and adapted to the present state.” Id. p. 125. “Have they never heard of a Monarchy directed by laws, controled and balanced by the great hereditary wealth and hereditary dignity of a nation, and both again controled by a judicious check from the reason and feeling of the people at large, acting by a suitable and permanent organ?” Id. p. 224. And in the same page he represents France as a nation which had it in its choice to obtain such a Government with ease, or rather to confirm it when actually possessed.”—“I must think such a Government well deserved to have its excellencies heightened, its faults corrected, and its capacities improved into a British Constitution.” Id. p. 232. The precise question at issue is, whether the ancient Government of France possessed capacities which could have been improved into a British Constitution.
[* ]See his Lettre au Roi 9th February 1789. [C. A. Calonne, Lettre adressée au Roi, Par M. de Calonne, Le 9 Février 1789 (London: T. Spilsbury, 1789); Calonne, De la France, 167.] See also Sur l’Etat de France, &c. p. 167. It was also, as we are informed by M. Calonne, suggested in the Cahiers of the Nobility of Metz and Montargis. It is worthy of incidental remark, that the proposition of such radical changes even by the Nobility is an incontestible evidence of the general conviction that a revolution or total change in the Government was necessary. It is therefore an unanswerable reply to Mr. Burke and M. Calonne.
[* ]“De quelle manière sera compose le Senat? Sera-t-il formé de ce qu’on appelle aujourd’hui la Noblesse & le Clergé? Non sans doute. Ce seroit perpetuer cette separation d’Ordres, cette esprit de corporation qui est le plus grand ennemi de l’esprit Public.” Pièces Justificatifs de M. Lally Tolendahl, p. 121. [“In what fashion will the senate be composed? Will it be formed of that which one calls today the Nobility and the Clergy? WITHOUT DOUBT NO. This would perpetuate this separation of Orders, this spirit of corporation which is the greatest enemy of the Public spirit.” Trophime-Gérard, marquis de Lally-Tolendal, “Sur la Déclaration des Droits,” in Pièces justificatives contenant différentes motions et opinions de M. le comte de Lally-Tolendal (Paris, 1789), 121.]
[† ]“Après avoir examiné & balancé tous les inconveniens de chaque parti peut-être trouvera-t-on que faire nommer les Senateurs par le Roi, sur la presentation des provinces, & ne les faire nommer qu’à vie seroit encore le moyen le plus propre à concilier tous les interêts.” Id. p. 124. [“After having examined & weighed all the inconveniences of each part, perhaps one will find that the means most suited to reconciling all interests is to have the King name Senators, on the recommendations of the provinces, and to have them named only for life.” Lally-Tolendal, “Sur la Déclaration des Droits,” in Pièces justificatives, 124.]
[59. ]This is an adaptation of Velleius Paterculus on Pompey: “potentia sua numquam aut raro ad impotentiam usus” (never, or at least rarely, abusing his power). Velleius Paterculus, Compendium of Roman History, trans. F. W. Shipley (London and Cambridge, Mass.: Heinemann and Harvard University Press, 1961), 112–13 (II.xxix.3–4).
[* ]This question, translated into familiar language, may perhaps be thus expressed,—“Whether the vigilance of the master, or the squabbles of the servants, be the best security for faithful service?”
[† ]The suspensive veto vested in the French King is only an appeal to the people on the conduct of their Representatives. The voice of the people clearly spoken, the negative ceases.
[60. ]The Peerage Bill of 1719 attempted to limit the creation of new peers in order to ensure a permanent Whig majority. It was, however, defeated in the Commons. See Jean Louis de Lolme, The Rise and Progress of the English Constitution, 2 vols. (New York: Garland, 1978; facsimile of 1838 edition), 2:939, chap. 17, “The English Constitution.”
[61. ]The Septennial Act of 1716 extended the full lifetime of a parliament from three to seven years.
[62. ]Burke, Reflections, 124.
[* ]The sexenial election of the Judges is strongly and ably opposed by M. Calonne, p. 294, chiefly on the principle, that the stability of judicial offices is the only inducement to men to devote their lives to legal study, which alone can form good magistrates.
[* ]I have on this subject read with much pleasure and instruction the profound and ingenious, though perhaps occasionally paradoxical, remarks of Mr. Bentham. [Jeremy Bentham, Draught of a Code for the Organization of the Judicial Establishment [in France] (London, 1791).]
[* ]Rapport fait au Roi dans son Conseil, par le premier Ministre des Finances, à Versailles, le 11 Sept. 1789. [Jacques Necker, “Rapport fait au Roi dans son Conseil, par le premier Ministre des Finances, à Versailles, le 11 septembre 1789,” in Oeuvres Complètes, 15 vols. (Paris, 1821; repr. Aalen: Scientia Verlag, 1971), 7:58–61.]
[† ]The negative possessed by the King of France is precisely double of that which is entrusted to the Assembly. He may oppose his will to that of his whole people for four years or the term of two Legislatures, while the opposition of the Assembly to the general voice can only exist for two years, when a new election annihilates them. So inconsiderately has this prerogative been represented as nominal. The whole of this argument is in some measure ad hominem, for I myself am dubious about the utility of any species of Royal veto, absolute or suspensive.
[63. ]Burke, Reflections, 319.
[‡ ]P. 315.
[* ]Burke, p. 313.
[† ]Calonne, p. 170–200.
[64. ]Burke, Reflections, 192.
[* ]To use the language of M. Calonne, “armant le peuple & popularisant l’armée.” [“Arming the people and popularizing the army.” Quotation not found in C. A. Calonne, De l’état de la France, présent et à venir, par M. de Calonne ministre d’état (Londres: T. Spilsbury & fils, 1790).]
[65. ]Burke, Reflections, 334.
[* ]Again I must encounter the derision of Mr. Burke, by quoting the ill-fated citizen of Geneva, whose life was embittered by the cold friendship of a Philosopher, and whose memory is proscribed by the alarmed enthusiasm of an orator. I shall presume to recommend to the perusal of every reader his tract entitled, “Considerations sur le Gouvernement de Pologne, &c.” more especially what regards the military system. Oeuvres de Rousseau, Geneve, 1782, tome ii. p. 381–397. [Rousseau, “Considerations sur le Gouvenement de Poland,” in Oeuvres de Rousseau (Genève, 1782), 2:381–97. For a recent English translation see Rousseau, The Social Contract and Other Later Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997), 177–260.] It may be proper to remark, that my other citations from Rousseau are from the same edition.
[66. ]“The Gauls also, according to history, once shone in war.” The immediate source is Edmund Burke, Substance of the Speech of the Right Honourable Edmund Burke, in the Debate on the Army Estimates, in the House of Commons, on Tuesday the 9th Day of February, 1790 (London: Debrett, 1790), 5. The text comes from Tacitus, Agricola, in Dialogus, Agricola, Germania, trans. W. Peterson (London and New York: Heinemann and G. P. Putnam’s Sons, 1920), 188–89 (§11).
[67. ]This is a reference to the Declaration of the Rights of Man and of the Citizen proclaimed by the National Assembly on August 26, 1789.
[68. ]“In that day let mankind lay down their arms and seek their own welfare, and let all nations love one another.” Lucan, “The Civil War,” in Lucan, trans. J. D. Duff (London and New York: Heinemann and G. P. Putnam’s Sons, 1928), 6–7 (bk. 1, lines 60–61). This quotation was also used as the epigraph to J. J. Rousseau, Jugement sur le projet de paix perpétuelle de L’Abbé de Saint Pierre.