A monster in politics has started up in France: a country without a government: a pretended legislature without power to make laws: the ins tyrannized by the outs: the supposed possessors of power tyrannized by those in whom all power is said to be at an end: a system pregnant [with] mischiefs and those mischiefs without a remedy: and this anarchy the result, not of negligence or impotence but of full power and great deliberation.¹

In the small interval that has elapsed between the birth of the new legislature and the time for the assumption of its powers,² no very pressing inconvenience has had time to manifest itself: but this quiet can not be of long duration.³

If there were a proposition in government more self-evident than any other, one should think it would be that at every period there should be some one authority competent to do every thing that may require to be done by government, and that that authority should extend to every case whatsoever.

The attempts made by Lycurgus, of Numa, the Medes and Persians, by the lovers of raree shews among the Athenians,⁴ and so many other pretenders to infallibility with or without inspiration, have been hitherto quoted only for their absurdity, as so many imitations of Salmoneus who, by making a noise, thought to rivalpg 266Jupiter, the King of gods and men,¹ and as so many attempts to transform finite power into infinite.

It is not much to the honour of the 18 Century [that] so exploded and barefaced an instance of despotism and self-sufficiency should have found imitators: and that in a body of men which on so many other grounds has so fair a claim to the appellation of the most respectable Assembly that has ever yet made its appearance in the world.

Penetrated with the sense of the mischiefs with which I see it pregnant, I shall endeavour to lay before the public my thoughts in as few words as the importance of the subject will admitt under the following heads:

1. Nature and magnitude of the mischiefs with which such an institution is pregnant.

2. Want of authority on the part of those who have attempted to establish it.

3. Want of rational argument in favour of it.

4. Inconsistency of the pretension on the part of those who have advanced it.

5. Inadequateness of the pretended remedy applied by the institution of occasional conventions.

6. Conjectures relative to the opinions and institutions that may have contributed to the formation of it.

7. Best mode of getting rid of it.

8. Draught of an address for that purpose.

§I. Mischiefs

Under the head of mischiefs I shall not mention a single one of those which may be ascribed to any particular article. The discussion would be an endless one: under this single point it would involve a dissertation on almost every branch of a compleat body of the laws. For the purpose of the argument I will admitt, what otherwise I should certainly be far enough from admitting, viz: the articles are in the whole and in every part of them as good as they could have been made in theory on a first trial, and that whatever particular inconveniences may be to be apprehended from them are no others than such as nothing but actual experience could have brought to light.

1. Mischiefs liable to result from the handle given to malâ fide disobedience and resistance and disturbance.

So long as this nullifying clause subsists, the enemies of liberty andpg 267good order, the plotters of disturbances, can never want for a pretext: and such a pretext, as will but too often be more than a plausible one. Under all other governments (for no other government has been without some one person or assemblage of persons competent to do every thing) when any act of power is complained of, the language is that it is inexpedient, at the worst that it is oppressive: the right itself, howsoever the exercise of it may be objected to, remains clear of controversy: error or at the worst oppression is charged and petition for redress is the result. Here, thanks to the cloud-compelling operation of this clause, petition for redress will be accompanied or rather superseded by protestation of invalidity: instead of complaint will come resistance: the whisper of complaint will give way to the outcry of rebellion: and disobedience to authority will be proclaimed (for so authority has proclaimed it) not a right only but a duty.¹

What an exploit, what a finishing stroke for paternal hands! to blow the flames of rebellion against their own successors! to plant in the loins of their own progeny the seeds of impotence!²

2. Mischiefs of uncertainty the result of honest difference: uncertainty and disagreement the result of doubts relative to the conformity of this or that article of ordinary law to this or that article of the constitutional code. Scruples which falshood and artifice may feign, probity may still more easily conceive. This source of mischief, how much less soever dishonourable to the authors, is perhaps still more pregnant than the other: for in which state of mind is opposition likely to be most strenuous? when conscience militates against a man, or when he has conscience for a support?

The mischief which may originate from this source, though the same in specie, may well be reckoned as numerically distinct from and an addition [to] the other: the two sets of men who may thus be raised up in arms against the authority of the law are not only of a distinct but of an opposite description: and by their union who shall say how large a portion of the community may be raised up in arms against their fellow-citizens and the ruling-power?

3. Mischiefs resulting from conflict of jurisdiction and diversity in judicature. In one department or district the judges look upon the article in question as conformable to the constitutional code: in another, unconformable—louder discord, thicker confusion—division more determinate and enduring.

pg 2684. Who shall terminate this dissention? who shall put a period to this scene of confusion? the tribunal of cassation?¹ then is the tribunal of cassation not the rival only but the superior of the supreme legislature: then has the tribunal of cassation, a branch of the judicial power, a veto, a negative, on the laws. Should this judicial body and the legislative body disagree, as by the supposition they do disagree, what arbiter is there between them? None but the body of the people to whom no mode of suffrage is given but insurrection and civil war.

5. Mischiefs annexed to the loss of confidence liable to be sustained by the legislature in the course of their struggles to support their own authority or evade by interpretation the over-ruling text of the constitutional law.

The most favourable case is that where the discrepancy if any is not so great, but that to a majority of the legislature itself it appears truly and honestly, howsoever it may be with the minority of the legislature and a more or less considerable part of the nation, that the article of ordinary law in question has nothing in it inconsistent with any article of the constitutional code. In this most favourable case what is the predicament in which they are placed?—the disagreable and invidious predicament of being judges in their own cause.

6. A more common case will be that of their recognizing or supposing themselves to recognize a defect or supposed defect in some part of the constitutional code, becoming anxious to correct it, and in order to get leave to correct it, and to reconcile the nation to the license thus assumed, either accompanying it with pretended explanations and interpretations straining the import of the language and putting forced constructions upon the words, or passing the discrepancy over in silence trusting to evasion of that sort in case of need for their defence.

[7.] Mischiefs attached to the perversion of the national understanding. When an infringement of an article of the constitutional code has thus taken place, either by stealth and without apology, or with an apology grounded on forced interpretations, either the people acquiesce in the infringement or they do not: if they do not, then comes opposition, dissention, civil war: if they do, the mischief though slower is not less real. If nothing has been said to them, and they connive at the transgression, it is a sign that the laws have not that influence over the people which for the stability of government they ought to have: as the breach of this article of law is connived atpg 269and passes uncensured, so may that of any other: the institution itself is so far of no effect and escapes becoming mischievous only by becoming useless and inefficient. If the apology passes upon them it is a sign that truth is indifferent to them, or truth and falshood undistinguishable: it is a sign that they judge blindly and under the influence of prejudice: it is a sign that they actually labour under these weaknesses and tends to confirm them in them: it encourages the legislature to usurp in other instances upon the constituent body, and inferior bodies to usurp upon the legislature: in a word, as no security can be afforded by the laws any farther than the words of which they consist are faithfully interpreted and observed, by perverting the import of words it undermines and destroys whatever security can be afforded by the laws.

It produces in this point of view an effect similar in kind, though still nearer and immediate in its bad consequences, with that produced by the authoritative introduction of an absurd article of faith, of speculative theology: in itself the error does no harm: but in order for it to take place the whole mass of the understanding, the reasoning faculty, must have been vitiated and rendered weaker and less fit for use in every instance in which it can be employ'd.

The conception of the enormous though slow and latent mischief resulting from forced constructions put upon the letter of the laws, even when done with the best design and with the best particular effect, may be helped by a well-known instance furnished by the English law. A statute of the 16^th century which continues to torment industry by its baleful influence forbids the exercise of almost every species of industry then existing to every one who shall not for the space of 7 years [have] served in that same branch as an apprentice:¹ a man who for seven years and more had exercised one of those trades without being an apprentice to it, was by a judicial decision absolved from the penalties of the law: exercising the trade for the same time without having been apprentice to it was called serving as, i:e: after the similitude of, an apprentice: and the crime, such as it was, by dint of repetition was deemed to have operated its own license.² It is partlypg 270indeed [owing] to the immense and unlimited bulk of the body of the law, but partly also to the cause here spoken of, that the law has lost the confidence of the people to such a degree, that the distrust of the law has risen to such a pitch, that in reading and putting a construction even on an act of parliament, not to mention on a pretended article of what is called common law, no man who is not a lawyer thinks it safe to trust to his own eyes. Hence one cause of the yoke under which the body of the people are held by lawyers. All men who are not lawyers know it is impossible for them to know the tricks that have been plaid by judges with the acts of the legislature, as well as with the decisions of their predecessors: lawyers who pretend to know these tricks must be paid for looking through them: and this is one of the ways in which justice is sold to the rich while the poor, for want of being able to buy it, are excluded from all chance of it.

So long as this clause subsists there is no government in the country: a nominal legislature incapable of stirring a step in the largest and most important part of the field of legislation: the King, the subordinate bodies, every other power in the nation in a state of subordination to that helpless legislature. A people struggling with the diseases inseparable from the infancy of a constitution, and struggling without remedy, without a hand to help them: an only physician appointed, and he without power to prescribe.

Blessed fruit of a wisdom which proclaims itself infallible! blessed state of the government of a great empire! anarchy planted by the hand of tyranny: anarchy without remedy, tyranny beyond example!

§II. Want of authority on the part of the first National Assembly thus to tie the hands of its successors

Lawful authority to do that which would be mischievous, will hardly be taken by any one who is possessed either of human reason or of human feelings, as a sufficient reason why any thing which is mischievous should be done: but when it has been already demonstrated that the act complained of is big with mischief, the consideration of the total want of authority to perform it, of the total absence of all legal pretence for doing it, may be adduced as adding to the impropriety of the attempt, and to the vigour and firmness of our resolutions to make it abortive.

I will not deny but that the nation could not have conferred such an authority: it is not necessary thus to plunge into the ocean of metaphysics. As a nation may promise for the observance or rejection of what they know, so may they for the observance or rejection of that of which they know nothing, and of which neither the tenor nor the consequences actual or probable have ever presented themselves topg 271their conception. As they may engage to listen to reason and to profit by experience, so may they to turn a deaf ear to reason and to refuse to make any profit by the lessons of experience. There is nothing inconceivable or impossible in a set of men's having entered into this any more than any other foolish engagement, nor in their having for a certain length of time the still greater folly to abide by it. But the question now is, have the French nation in fact ever entered into any such engagement? and the answer is purely and simply in the negative. It is for him who maintains the existence of such an engagement, to produce it.

From whom did the Assembly derive the authority they possessed?—From the only source of authority as well in point of fact as in point of right, the people, the great body of the people. When did the people, when did any part of the people, give them any such indefeasible authority?—Never. Did they by the original commission? Did they by any subsequent addresses of adhesion?—By neither. What was their commission? to legislate in concert with the King in certain cases. How did they execute this commission? By legislating with or without the King as they thought proper in all cases without exception. How was this usurpation received by the people? they applauded it, they sanctified it, they legitimated it, they converted the usurpation into a right. What followed? that the Assembly then existing and so empowered became sovereigns of the nation for the time being and during the good pleasure of their constituents, by the purest and most unexceptionable of all titles. This sovereignty, was there any attempt made contrary to the nature of things, to extend it beyond the period of the existence of the body so invested with it—to extend it, as it is attempted to be extended, to all futurity? Once more I affirm no such attempt has ever been made—not a single address expressive of such an attempt emitted: it is for him who maintains the existence of an address of that sort to produce it.

Who are they who thus pretend to tie the hands of authority for ever?—the spurious representatives of the nation.—Who are they whose hands are thus attempted to be tied?—the genuine and legitimate representatives of the same nation for evermore. This is no disputed proposition: it is a proposition not merely acceded to by themselves, but which originated with themselves, and which none have been more forward than themselves to proclaim. The plan of representation which placed us where we are was a bad one, ill adapted to express the real sense of the people: it was repugnant to those rights of equality which we have declared:¹ it became ourpg 272business therefore to make a better and this better one we have made. Such are the premises—observe the conclusion. We the unlawful representatives of the people will govern the people for ages and in spite of ages: we will govern them for ages after we are no more. The only lawful representatives, the first and all succeeding lawful representatives of the nation, the deputies appointed by the people for the time being, shall not govern them as we do, shall not exercise any jurisdiction over them except such as it has been our pleasure to allow.

Either the mode of representation which you have substituted to that which seated you is a better one than that which seated you, or it is not: if it is not, why did you give it them? if it is, where is your pretence for setting your will or your wisdom above their's?

The spurious representative of the people, a body which acknowledges itself to have been so, puts a negative upon the acts of the body which it recognizes as the only genuine representative, an everlasting negative, upon the most important of all the acts which can propose themselves for their acceptance, and that in the lump without knowing what they are.

§III. Want of rational argument in favour of such a pretension

With what mischiefs is it pregnant?—we have seen.¹—Of what advantages does it promise to be productive? What mischiefs does it promise to obviate?—None.

What good effects is it that the contrivers could have had in view?—Giving stability to the constitution?—Vain pretence. On what depends the stability of the constitution? Upon a form of words? Upon the acquiescence of the nation under a pretension equally pernicious, groundless, presumptuous and absurd? Upon the surrender of all feeling on the part of the people and of all claim to common sense on the part of their pretended rulers? No: but upon the approbation of the people continually bestowed upon the constitution, upon the general sense and spirit of it. Mischievous or useless, such are the only attributes of which such a remedy is susceptible: mischievous or useless, such is the only alternative. If the people continue to approve of the constitution, will they for want of such a steadiment to it overthrow it? Should the constitution ever become unacceptable to them, is it the sentiment of the lightness of the yoke thus attempted to be imposed upon them that will reconcile them to its pressure? Will they suffer on—were it to be wished theypg 273should—without stirring a finger to help themselves, lest self- sufficiency and blind presumption should meet with a reproof?

Oh but, say they, it is not the particulars that we are so anxious to preserve: we do not give it as a composition absolutely perfect: we do not pretend to say, but that in here and there a particular, a point of detail, it might be susceptible of improvement. But a whole is composed of parts: this code is composed of articles: were we to expose any one article to innovation, the change, the spirit of innovation, might extend to the rest—as there is no drawing the line, it is for the sake of the whole that we must protect the parts and every part: it is for the sake of the spirit that we must protect the letter: it is for the sake of the principals that we must protect the accessaries: it is for the sake of the matter that we must protect the words.

Perhaps so: and it is this difficulty of drawing the line any where that should have warned you and preserved you from the attempt. You are not persuaded of your own infallibility; and yet you act as if you were; you engage in a measure which nothing but infallibility could justify. In order to effect what this or that man may approve of, you attempt to do that which no man, not even you yourselves, can approve: in order to effect what you look upon as more or less difficult, you attempt what is impossible.

The precautions of party men, of men acting under the agitation of the spirit of party, are generally and naturally directed against dangers apprehended from party: they have no ulterior nor preciser views. What was the real object of this attempt?—to guard this or that article of detail from alteration?—no: but to prevent fundamental alterations: to protect the whole fabric against the opposite currents of contending parties: from a relapse into aristocracy and despotism on the one hand, or from being precipitated into republicanism and what may perhaps have been looked on as the concomitant of republicanism, division and anarchy, on the other: to protect it in a word not against the corrections of reason, but against the assaults of passion. Such was the object in view: what is the natural tendency and effect? against passion, against the assaults of passion, it is impotent: against the corrections of reason it shuts the door. So long as there exists no danger it acts: and so far as it acts, so far it does mischief: opposed to the tide of popular passion it is a sheet of paper: opposed to the hand of reason it is a wall of brass. It is fit for preventing good: it is fit for doing mischief: it is sure of doing mischief, and it is incapable of any thing else. Conceive the Princes at the head of a victorious army within the walls of Paris:¹—Against whom should thepg 274letter of this code afford the constitution a defence? against the Princes at the head of a victorious army? or against a strong majority of the people loathing the monarchy and devoted to republicanism?

Anxious to discover what it was that could be said in favour of it, what arguments the authors of so extraordinary a measure could produce to justify their adoption of it, what was my surprize to find the preservation of the nation attributed to it? It and it alone had preserved that measure of peace which the nation is in possession of: it and it alone has preserved public credit from the most violent convulsion. Such were the advantages [which] I was assured were universally attributed to it by the public voice. Such were the practical advantages I found ascribed to it by those who with perfect frankness admitted its absurdity in theory.

Public peace preserved by it? how so? Public peace preserved by a measure the direct tendency of which is to set every body by the ears? Citizens against legislators—the Judicial power against itself— the judicial power against the legislative?—Oh, yes: for had not the perpetuity of the constitution been thus solemnly proclaimed, the malecontents, the aristocrates, would have been continually attempting to bring about a change. The aristocrates attempting a change! as if this or any thing else could add any thing to their zeal! We have seen what advantages the ill wishers to the constitution derive from the perpetuating clause—what advantages could they have deriven from the want of it? Will it put arms into their hands, will it encrease their numbers, will it add any thing to the motives which urge them on to mischief?

O but the aristocrates might have attempt [ed] changes under the mask of patriotism. The absence of such a clause gave a mask for the aristocracy? how a mask? We have seen how fair a mask the presence of it is.

The aristocrates use it as a mask? How can this or any thing serve him as a mask. Are not the aristocrates universally known? Among a people so remarkable for their frankness, can there be one man in ten about whose affections there can be a doubt? The aristocrates attempt changes? with what prospect of success?—how? when? where? Is it by their arms? Is the absence of a perpetuating clause a musquet or a barrel of powder? By their votes? Are the aristocrates one in twenty, forty, fifty of the people?

Where is this attempt of their's to be made? In the National Assembly? Who are there that are to make it? Among the wholepg 275seven hundred¹ are there seventy, are there seven, that are so much as suspected of any such affection? In the first Assembly a fourth part, a third perhaps, were known and avowed enemies to the constitution?² What one single point were they able to gain against it?

The perpetuating clause, by making a scission among the sincerest friends of the constitution, has a continual tendency to create an aristocratical party, or rather two aristocratical parties, for that being the standing term of reproach, each will receive it from the other.

Oh, but public credit—it has been the salvation of public credit. The people began to think there would be nothing fixed, nothing secure—now every thing is at anchor. Judging from experience, the people were afraid of seeing changes made in the constitution every day. This clause taught, to their infinite comfort, that there are to be no more of them—that there is an end of change. But for this all-preserving clause, the funds would have fallen, who can say how low. Bankruptcy might have been the consequence.

A law grasping at eternity, to keep up the market price of stocks for the day! The Solons, the Lycurguses, of the Age turned stockjobbers! The interests of ages yet unborn thrown into the melting pot to make a bonus for the bears of stock on such or such a day!

But what security could it afford to the owners of money in the funds? Does it afford any new supply? Does it afford any new security for the continuance of the old ones? Neither the quantum nor the mode of the public levies are comprised in it. Is there any thing so necessary to tranquillity in the assurance that the defects of the constitution, should either reason or experience discover any in the constitution—in the parts of the law which the clause does embrace, must remain for ever without a cure? and grievances without a remedy?

Does it afford the smallest atom of stability to the pillars of the constitution, to those parts to which the great body of the people are really attached, whatever they may be, to a representative form of government for example, or to the unity of the legislature? Should public opinion be ever so far changed as that these great objects of confidence should be generally deemed unsound, is it in the power of this clause to save them from alteration, or is it to be wished that they should be? Is public opinion the genuine test of utility in one year, and a spurious one in another, and in every other? Is public opinion to be seated in a triumphant car the first year in a century, and bound in chains the other ninety-nine?

pg 276Public credit would have been laid low—how easy these after-prophecies of what would have been! By what rule would the judgment of those on whose opinions public credit depends have been guided?—By that of reason? It is proved that no such misfortune could have taken place.—By caprice, by an irrational alarm? There is no pretending to say then how they would have done, and all assurances that could have been given by those who should pretend to answer for them must have been groundless and precipitate, and it is idle to pretend to answer for them.—A man takes note of the conceits and passions or pretended passions of the first three or four who happen to come across him, and these three or four compose in his calculation the temper of the people. He who, in judging of the course that will be taken by public opinion, follows the light of reason, will but too often miss the mark: but his chance of hitting it will at least be less bad than were he to take for his guide the ignis fatuus of caprice.

Well but there is no disputing of facts. The Constitution was declared to be finished, finished with this clause in it, the funds rose, and the exultation was universal, that is among all the friends of liberty.¹—I take for granted it was: I hear many affirming it. I hear nobody disputing it. The people rejoiced: but who shall say how much of their joy, if any, was grounded in this cause? Joy itself is a simple sentiment: but the incidents that have given birth to it may have been complicated in an indefinite degree. They rejoiced because the constitution was finished: does it follow that they were glad to find it was unamendable? They rejoiced because they had got a constitution: does it follow that they believed it to be a perfect one? and so perfect, that, like it or not like it, it should not be in their power ever to get the smallest alteration made in it? They rejoiced because the power of their first motley crew of representatives had found its period: does it follow that they rejoiced to think that the opinions of these representatives, right or wrong, were to reign for ever?

Not that there is any thing so wonderful if the tide of popular opinion should have suffered itself to be thus deluded for the day by these or any other idle notions: endeavours thus to delude them were hardly wanting: it would be nothing wonderful if the vanity which had formed the project of getting itself declared infallible, should have been accompanied with the art of employing the means the best suited to the purpose.

pg 277The constitution is finished: that is so far finished as depends upon ourselves: all that we see necessary to do to it we have done. Is not that enough? enough for service? enough for exultation? without going on to say: and as the work is all-perfect, and we the workmen infallible, no human beings but ourselves shall ever do any thing to it any more.

The perpetuating clause did no good: not even for the moment: I can not bring myself to believe it. But, for argument sake, suppose it otherwise: let it have done good at the time: is that a reason for acquiescing under it? By no means. It has done its office. The good that it did is over: the mischief it was pregnant with remains without alloy. It was inserted to serve the purpose of the day: the purpose of the day was served by it.

Suppose it all-perfect: perfect in the whole and in every syllable— would the repeal of the perpetuating clause deprive the country of the benefit of this perfection? No, surely: on the contrary, then and then only it would be rendered perfect, by being cleared of an absurdity which disgraces it.

Oh, but this was the measure of all others for giving the finishing stroke to the hopes of the Aristocrates. Overpowered in the first Assembly, the infancy of the new Assembly was the period they looked forward to for a change, at least for an attempt at a change, and for the confusions which they flattered themselves would ensue: the perpetuating clause has bereft them of their last hope. The new Assembly comes with power to go on compleating the web of legislation: but happily without power to unravel the matchless work of their first masters. Get rid of the perpetuating clause, and you do the business of the Aristocrates: it is the very thing of all others they would rejoice to see.

The Aristocrates, overpowered in the first Assembly, would have flown for protection to the omnipotence of the succeeding one! Fly for refuge from a body where they had a fourth or a third of the votes to a body where [they]¹ have not a single one! Scorched in the frying-pan, their hopes were in the fire!

The Assembly consists of seven hundred and odd members. Have the Aristocrates seventy votes in it, have they seven? Could they have expected to find any such number? Was there the smallest probability of their having any? Were not the affections of ninety-nine in a hundred of the people, was not every thing that can be called power in the country, in the hands of their adversaries?

A change? what sort of change? such a change as an aristocrate only would approve of? such an expectation, we have seen, was impossible. Such an one as a democrate, a friend to the general pg 278principles of the constitution, might be expected to propose? What hope of confusion could be grounded on the prospect of any such change or the attempt to bring about any such change? Changes of this complexion had in a thousand instances taken place, and what confusion did they produce? The changes made in the constitution by the first Assembly produced no confusion, even the changes made by themselves in their own work: why should confusion be produced by a similar change made by any subsequent one? If change and confusion are thus inseparable, why trust the subsequent legislatures to change any thing, in short why suffer any such thing as a subsequent legislature? Confusion the probable effect of change! What a maxim for a legislature and for what legislature? that which has produced the boldest changes the world ever saw.

Anarchy, conflict of jurisdiction, disobedience: these are the efficient causes of confusion: and these, as we have seen, it is the natural tendency of the perpetuating clause to produce.

What if from the leaving open the door to improvement, the aristocrates had retained the hope of seeing a change? where would have been the mischief? If it was this that drove them, where was the advantage of driving them to desperation? The change in question was by the supposition a peaceable one: a change in the operation of which the lawful power of the country was to have been the instrument: a change to have been effected by votes and brought about by persuasion? Where would have been the great harm if, instead of emigrating to fight, they had staid at home in quiet hope of seeing such a change?

The Aristocrates would be glad to see it. This I hope will not be relied upon as a serious argument against the repeal. The measure is a bad one—why? because the enemy would be glad to see it:—the enemy would be glad to see it—why? because it is a bad one. The aristocrates would be glad to see it—would they so? With me, who surely am no aristocrate, this would be an additional argument in its favour.—Have the aristocrates ceased to be Frenchmen, ceased to be men, by continuing what they were? Is the discontentment of the minority as well as the contentment of the majority, one of the ends of government?

§IV. Inconsistency

The inconsistency, the inconceivable inconsistency, that characterizes this attempt is not one of the least striking features of it. Compared with this, all other extravagancies wear the colour of common sense. The infallibility of the Pope rentre dans l'ordre de la nature. Twelve hundred infallible persons deriving their infallibilitypg 279like the Bramins from birth, like the Popes from election, or like the Grand Lama from something between both,¹ to all this I am ready to subscribe without difficulty. But an assembly of the same number of men brought into the world without a miracle, subject to human infirmities and passions, selected by their fellow citizens it is true, but taken out of the general mass, from the moment of their taking their seats doubting, disputing, changing, struggling, wrangling, sometimes one man's notions prevailing, sometimes another, that all this heterogeneous mass after a ferment of two years and a half, should all of a sudden at a certain hour of a certain day have worked itself up into infallibility, each man resolved that the whole nation, that a nation of 25 millions, shall instantly become and to the end of time continue satisfied with the whole and every part of a composition with which taken in its totality not a single one of them is so much as satisfied himself, a measure of inconsistency and presumption like this is almost too much to believe even while one is seeing it with one's own eyes.²

Being possessed, by no matter what miracle, of this godlike attribute, why so sparing in the use of it? Why make themselves infallible only by fits and starts? Why deny the nation the benefit of it on so many other points? Why refuse them an infallible penal, an infallible civil code?

The line of conduct they have pursued, however extraordinary, can not be charged with being unprecedented.

In England the Long Parliament resolved not to die:³ the French Assembly, finding they could live no longer, resolved to reign after their death. James the 2^d, when the country was become too hot to hold him, threw the seals into the river.⁴ If I am not to govern you,pg 280said he, no more shall any body else. The last act of the reign of Alexander was a bequest of discord to his successors.¹ In some countries the rulers have ordered their arms and other good thing [s] to be thrown into their grave after their death: in others, some of the choicest of their slaves.² Our legislators, seeing the grave yawning for them, ordained that the peace of the nation should first be thrown into it together with the authority of their successors. The nullity of this ordinance is the point I am endeavouring to maintain: and this nullity is the only one I should think of attributing to the acts of a legislature: the nullity of every act which should attempt to plant nullities in such a ground.

Who are they who, in the face of the people, addressing themselves to the people, are not ashamed to rise up thus in open rebellion against the sovereignty of the people?—You are the source of all power, and we allow you none. You are the creators, and we | |. You gave us our voices, and we will not suffer yours to be so much as heard.

§V Inadequateness of the pretended remedy applied by the institution of assemblies of revision

When turning their back to the simple path of reason men plunge into absurdity, all attempts of theirs to disengage themselves end but in plunging them still deeper. The expedient of Assemblies of Revision, far from correcting the fundamental error, adds to it. It is a fresh article added to the catalogue of inconsistencies. Either infallibility was among their attributes (I speak always of a certain day and hour of the day) or it was not. Were they not infallible? Why act then as if they were? Were they infallible? they betray'd their trust when they suffered their fallible successors to possess the possibility of operating a change.

From falshood, say the logicians, nothing but what is false and nothing else can follow.³ On a foundation of such absurdity nothing but absurdity could have been the superstructure. There may be degrees of absurdity after this original one, but every expedient that could be recurred to in the view of palliating it, would prove more or less absurd. This I am ready upon occasion to prove with regard to any one thatpg 281could have been adopted: for the present it will be sufficient to prove it with regard to that one which has chanced to be adopted.

In a free country under a constitution like the French, the will of the legislature is the will of the people: the voice of every legislature at any given time is the voice of the people for that time. It ought at least to be so: and how came it not to be so? under this constitution, to do it justice, it has no bad chance of proving so. It is so: but if it be not, why is it not so? If it be not, whose fault is it, but theirs? Once more it is: but if it were not, it would not be in their power to deny it: for they who, if you will believe them, can not err have said it is.

The will of the Assembly is the will of the nation. The will manifested by the Assembly on any particular occasion is the will of the nation upon that particular occasion. Such it is supposed to be, and such it certainly is, not in form only but in substance, if the nation utters no contrary will, being at full liberty so to do. But if it has not been made, whose fault would it be? How came they not to make it so? If it were not, where then was their own authority? If it be not, what are we to think of their intelligence? Where has been their good faith, their fidelity to their trust?

For two years together the will of the people is to be set at nought. For two years more it is to be set again at nought: it is not so much as permitted to be heard: for two years more it is again to be put to silence. In the third period of two years they may speak: in the fourth they may speak again: in the fifth they may speak a third time: but every time without effect. If during the last three periods they say exactly the same thing, this conformity produces a new representation and then when the grievance is of ten years standing, and the people and their former representatives, after having been gagged for four years, and having been crying out against it in vain for six years more, are then and not till then to enjoy the possibility of obtaining relief.¹

An extraordinary representative?² why a new representative? what is the matter with the ordinary one? This extraordinary one, is it a better than the ordinary one or not? If better, why not make use of it for the ordinary one? If not better, why make use of it at all? Where is the difference? I stay not to enquire. I need not: sure as we may be,pg 282that if one of them is not bad, both are and must be, were it only for this reason, that they are different. A bad one for working days and a good one for high days and holidays, or a good one for working days and a bad one for high days and holidays, which is most preposterous? When the whole contrivance is so thoroughly and radically bad, what use were it to enquire?

Difference? Oh yes there is a difference.—Manufacture of constitutions is one thing: legislation is another: 745 neither more nor less is exactly the proper number and the only one for the latter business: it requires 994 for the other: there is magic in the case: every body knows what magic there is in numbers: every thing depends on numbers: the French constitution is to hang together by magic as staircases do by geometry: the French constitution, like Plato's worlds,¹ is founded upon numbers. This is the way and only way of treating such contrivance: argument would be thrown away upon it? what can reason do with a contrivance with which, from the beginning to the end of it, reason has nothing to do?

I pass over the trifling detail of subordinate absurdities—of a grave legislative body, who have the whole power of the country, the first thing they do, getting up as if they were frightened out of their wits and crying like volunteers in a frontier town to have 'liberty or death'² when there is nobody to kill them, when there is not the smallest atom of danger of any kind whatsoever: of the supernumerary fourth part being draughted off as soon as ever the hard tug of constitution- making is over like a fourth horse after the carriage has been dragged to the top of the hill³—these and a thousand other littlenesses I willingly pass over. In legislation every word that does no good, does harm—when will legislators be sensible in the degree they ought to this important truth?

One thing is apparent and much too apparent, that all these instructions how to do the business are but so many contrivances to prevent the business being done—an oath not only to live free or lay down life, but to confine their deliberations to such objects as shall have been laid before them by the uniform declaration of the three last preceding legislatures.⁴ Three declarations to be made by pg 283three successive legislatures, and the smallest variance makes the whole business null and void, and the Assembly of revision perjured if they take any sort of notice of it. Three ordinary legislatures, one extraordinary one, all to do what?—the work that was done by Sisyphus.¹

What if, during all this business, an article which to my eyes seems a piece of a constitution should to the eyes of my neighbour seem a law?—then are we to fall a cutting one another's throats, and one of us to rise in rebellion against the legislature: for to this common end leads every line of the whole business: nullities upon nullities, a mine of nullities.

When the legislator cries obey me, and the citizen says—no, not I indeed: for your acts are void, what can be the next cry but To arms?

§VI. Error—Source

An idea so full of mischief and extravagance would hardly have been hazarded by the legislature of a free people if it had not found some basis in popular opinion. Of what consists this basis?—A vague sort of prejudice, made up out of a few inconclusive notions and historical examples.

The idea, this remedy to the inconveniences of change, seems to have had one origin: that of the corrective to this remedy another: though the attachment to the remedy has perhaps been strengthened by nothing so much as by the hasty notion entertained of the propriety and efficacy of the corrective.

All change has its inconveniences, if it were only because it is a change. If a system is good, then in proportion to its goodness a change is in danger of making it worse: hence it has been hastily concluded that whenever any thing good is established in legislation, care ought to be taken, and that in proportion as it is good, to guard it against a change.

The conclusion, however natural, is a hasty one. It supposes three things: none of which are true: 1. that bad changes are more likely to be made than good ones: 2. that it is possible to prevent changes: and [3.] that the attempt can be made without being productive of inconvenience.

That a change, supposing it to do no good, is likely to do harm, is very true: but what is not true is that any legislature over which the will of the people has any tolerable degree of influence is upon the supposition of its making changes as likely to make mischievous or insignificant ones as good ones. No country is to be seen any where pg 284of which the form of government has not experienced some change: of that of France at least this proposition will not be denied. Our predecessors, if they in any instance have made changes, have it will be allowed in some instances made them for the better: this good fortune at least is what, if it has happened to us too to make changes, we shall hardly deny to have happened to ourselves. But what reason can we have for presuming that the changes we have made have been for the better in comparison of the state in which things were left us by our predecessors, which does not tend with equal force to make it probable that such changes, if any, as may come to be made by our successors will be for the better, in comparison with the state into which things were brought by ourselves? Supposing it then ascertained, that on a given point a change to a given effect would be useless or pernicious, what is the practical inference? that it is necessary that measures be taken by the subsisting set of rulers to prevent the change in question from being made by a succeeding one?—No: but that it is useless: since the more reason we have to be persuaded that the change if made would be pernicious, the more we have to be satisfied it will not be made.

One remedy there is which really has a tendency to preserve the body of the laws from change, and that is reason: and which happily for mankind has this peculiar property, that the worse the inconveniences of the change would be, the stronger is the efficacy of this preservative. The very same specific, the very same reason, which, by operating on men so as to induce them to establish this or that law, has been the means of bringing the body of the laws from a less good state to a better, continues, when that good change has taken place, to operate with equal force against the bad change which would take place were the body of the laws pushed onwards or turned back again from that good state of things into a worse.

In a word, the attempt to govern will by will—the will of living men in power by the will of the dead or of an equal number of living men no longer in power—will ever be in the long run as vain, as from the first it is presumptuous and absurd: the only solid, the only lasting, government is that of understanding over understanding: and that when grounded on reason may last till the end of time. The faculty of exercising it is no more circumscribed by space than it is by time: it may be exercised by any man over all men, by the man of any nation over the men of all nations: it requires no act of naturalization, no commission to confer it. Time, instead of weakening, strengthens it. No barriers, no fortifications, can shut it out: no warning can enable men to exclude it. Armed with this instrument, a man, a single man, may say to France one day, to Spain another, to Morocco a third, I pg 285will govern you: and it shall be in the power neither of France, Spain, Morocco nor all together to prevent him.

Machiavel talks somewhere or other of the taking the constitution to pieces—ripigliare il stato—as a thing which now and then might be very proper to be done.¹ Machiavel lived a great while ago, and as his scheme of politics was so profligate, it must have been proportionably wise. The states whose constitutions Machiavel spoke from were the great cut-throat republics of antiquity and the little cut-throat republics of his own time. They were all made to fall to pieces of themselves, unless we except that of Sparta which for their own happiness as well as that of their neighbours had better have never been put together.² Before they were fallen to pieces, the best thing that could happen to them was to be taken to pieces: and that done, the next best thing that could happen was not to be put together again. Such is not the French constitution, such is not the work of the legislators against whom I am contending, with all its faults: the greatest fault, and that in comparison of which all others vanish, is that of its pieces being rivetted: so that without breaking it, there is no doing any thing to the smallest piece.

Machiavel's advice assumes this proposition, that a state is a watch: the answer is, that a state is not a watch: and that all watchmaker's talk applied to a state is nonsense.

§VII. Best mode of ridding the nation of the grievance

Such being the grievance, how to get rid of it? What is the best mode that can be taken for the purpose.

Four courses present themselves: [three]³ depending upon the Assembly: the other upon the body of the people.

The first is for the Assembly to proceed as if no such attempt had ever been made: making on every head such laws as may seem best to them, conformable to the Constitutional Code or unconformable, without taking any notice of the contrariety.

The second is, where any contrariety occurrs, to take notice of it [and] endeavour to explain it away upon each occasion by comments and interpretations.

The third is to lay the ax to the root of the mischief at once, take pg 286notice of the shackles intended to be put upon the liberty of the legislature, and throw them off by a general declaration made for the purpose.

The fourth is, for the people themselves to come forward, and address the Assembly to take the abovementioned course.

Of the two first of these courses the ineligibility has been already pointed out.¹ Among the mischiefs resulting from the usurpation has been the unavoidable tendency it has to drive the Assembly into one or other of these pernicious courses.

Between the two last there is nothing incompatible: either is good: neither can well take place too soon: though if there be a choice the last is that which one should most wish to see pursued. Better avoid if possible the appearance, though it be but the appearance, of judging in one's own cause. In every government, more especially in so young a government, every thing that savours of unsteadiness, of conflict betwixt successive possessors or component parts, every thing that tends to disturb the settling of things into order, and to break the habit of obedience, ought certainly to be avoided as much as possible. The course here recommended, though fatal to the usurped power of the last Assembly, is not unconformable to their principles. It is no more than the exercise of a right which, how reluctantly soever, they could not choose but recognize. It is the exercise of it in the simplest, quietest and mildest manner: in a manner which has the advantage in those respects of the mode which the recognition seems to have had more particularly in view. The nation, says the late Assembly, has the indefeasible right of changing its constitution: and then it points out the election of an Assembly of Revision as the best mode of effecting such a change.² The nation change its constitution? the nation itself go to work and without the intervention of any agents do the business as it were with its own hands.—To alter the government it must then begin with destroying all government: it must live all the while without a government: and if thus long, what should hinder it from living on in the same state of anarchy for ever? The body of the people, 25 millions of people, at once take the whole business of government-making into their own hands?—a relapse into despotism would be a less evil than such a change. But the authors of the Code meant no such thing: and it was their art to present so ruinous an alternative as the only one that could come in competition with the order of things they were attempting to establish.

How much more simple as well as safe the course I have ventured to propose. Give the whole of your confidence to those to whom you pg 287have given already so large a share: give to your present agents neither more nor less than what you gave to their predecessors: give to these by your own motion—or rather, to speak more properly, give expressly, in order to remove all doubt, what you have already given by necessary implication—what the others without waiting for its being given thought fit, and to do them justice found necessary, to take.

Give them your whole confidence, said I?—I mean declare that you have given it. Who shall say that you have not given it? What better title had those men to shew than these? That the usurpation should be thrown off in some way or other, and indeed in a short time: the only question is as to the occasion and the mode. What I contend for is that it may be done on deliberation, in a state of tranquillity, on a general and abstract view of the general question, without the intervention of those passions which would be so sure to burst forth in the course of the discussion were it brought on by and applied to particular persons and occasions.

Bring it forward on the abstract ground, and you may get in favour of it all those who in any article whatsoever wish to open the door of change. Bring it forward on the occasion of any particular point and you set against it all those who take the negative with regard to that point and who have this to urge, that even be the particular change a good one, it is not of itself of importance enough to warrant the sacrifice of the general rule.

What can be more unexceptionable than such a measure? What less in danger of stirring up contending passions? What less in danger of being productive of dissention? Whom or what does it oppose? What is it but a manifestation of loyalty, a declaration of confidence, a pledge of peace? an act which, whether it find many or few partakers, can scarcely meet with an opponent.

As every public act must have some form, I shall now proceed to submitting one which is as well adapted as any I can think of to the purpose.

§VIII. Draught of an Address

La Municipalité {Département} {District} considérant que &c. that the right of making provision for the present exigencies according to the best of its faculties is the inalienable right of every nation and of every representative body commissioned by them for that purpose:

déclare qu'elle regarde l'Assemblee législative declares that it regards the present legislative Assembly of France for the time being competent to make laws binding upon the French Nation in all cases whatsoever, equally with the late or any future National pg 288Assembly, any thing in the Constitutional Code or any other act of the said first National Assembly or any future one notwithstanding:

and to cut off all occasion of honest doubt and to defeat all machinations that may be attempted by the enemies of liberty and peace, supplicates the Assembly to declare itself in possession of the said entire and unlimited rights.