an executive power. For this they have chosen a degraded king. This
their first executive officer is to be a machine, without any sort of
deliberative discretion in any one act of his function. At best, he is
but a channel to convey to the National Assembly such matter as may
import that body to know. If he had been made the exclusive channel, the
power would not have been without its importance, though infinitely
perilous to those who would choose to exercise it. But public
intelligence and statement of facts may pass to the Assembly with equal
authenticity through any other conveyance. As to the means, therefore,
of giving a direction to measures by the statement of an authorized
reporter, this office of intelligence is as nothing.
To consider the French scheme of an executive officer, in its two
natural divisions of civil and political.--In the first it must be
observed, that, according to the new Constitution, the higher parts of
judicature, in either of its lines, are not in the king. The king of
France is not the fountain of justice. The judges, neither the original
nor the appellate, are of his nomination. He neither proposes the
candidates nor has a negative on the choice. He is not even the public
prosecutor. He serves only as a notary, to authenticate the choice made
of the judges in the several districts. By his officers he is to execute
their sentence. When we look into the true nature of his authority, he
appears to be nothing more than a chief of bumbailiffs,
sergeants-at-mace, catchpoles, jailers, and hangmen. It is impossible to
place anything called royalty in a more degrading point of view. A
thousand times better it had been for the dignity of this unhappy
prince, that he had nothing at all to do with the administration of
justice, deprived as he is of all that is venerable and all that is
consolatory in that function, without power of originating any process,
without a power of suspension, mitigation, or pardon. Everything in
justice that is vile and odious is thrown upon him. It was not for
nothing that the Assembly has been at such pains to remove the stigma
from certain offices, when they were resolved to place the person who
had lately been their king in a situation but one degree above the
executioner, and in an office nearly of the same quality. It is not in
Nature, that, situated as the king of the French now is, he can respect
himself or can be respected by others.
View this new executive officer on the side of his political capacity,
as he acts under the orders of the National Assembly. To execute laws is
a royal office; to execute orders is not to be a king. However, a
political executive magistracy, though merely such, is a great trust. It
is a trust, indeed, that has much depending upon its faithful and
diligent performance, both in the person presiding in it and in all its
subordinates. Means of performing this duty ought to be given by
regulation; and dispositions towards it ought to be infused by the
circumstances attendant on the trust. It ought to be environed with
dignity, authority, and consideration, and it ought to lead to glory.
The office of execution is an office of exertion. It is not from
impotence we are to expect the tasks of power. What sort of person is a
king to command executory service, who has no means whatsoever to reward
it:--not in a permanent office; not in a grant of land; no, not in a
pension of fifty pounds a year; not in the vainest and most trivial
title? In France the king is no more the fountain of honor than he is
the fountain of justice. All rewards, all distinctions, are in other
hands. Those who serve the king can be actuated by no natural motive but
fear,--by a fear of everything except their master. His functions of
internal coercion are as odious as those which he exercises in the
department of justice. If relief is to be given to any municipality, the
Assembly gives it. If troops are to be sent to reduce them to obedience
to the Assembly, the king is to execute the order; and upon every
occasion he is to be spattered over with the blood of his people. He has
no negative; yet his name and authority is used to enforce every harsh
decree. Nay, he must concur in the butchery of those who shall attempt
to free him from his imprisonment, or show the slightest attachment to
his person or to his ancient authority.
Executive magistracy ought to be constituted in such a manner that those
who compose it should be disposed to love and to venerate those whom
they are bound to obey. A purposed neglect, or, what is worse, a
literal, but perverse and malignant obedience, must be the ruin of the
wisest counsels. In vain will the law attempt to anticipate or to follow
such studied neglects and fraudulent attentions. To make them act
zealously is not in the competence of law. Kings, even such as are truly
kings, may and ought to bear the freedom of subjects that are obnoxious
to them. They may, too, without derogating from themselves, bear even
the authority of such persons, if it promotes their service. Louis the
Thirteenth mortally hated the Cardinal de Richelieu; but his support of
that minister against his rivals was the source of all the glory of his
reign, and the solid foundation of his throne itself. Louis the
Fourteenth, when come to the throne, did not love the Cardinal Mazarin;
but for his interests he preserved him in power. When old, he detested
Louvois; but for years, whilst he faithfully served his greatness, he
endured his person. When George the Second took Mr. Pitt, who certainly
was not agreeable to him, into his councils, he did nothing which could
humble a wise sovereign. But these ministers, who were chosen by
affairs, not by affections, acted in the name of and in trust for kings,
and not as their avowed constitutional and ostensible masters. I think
it impossible that any king, when he has recovered his first terrors,
can cordially infuse vivacity and vigor into measures which he knows to
be dictated by those who, he must be persuaded, are in the highest
degree ill affected to his person. Will any ministers, who serve such a
king (or whatever he may be called) with but a decent appearance of
respect, cordially obey the orders of those whom but the other day in
his name they had committed to the Bastile? will they obey the orders
of those whom, whilst they were exercising despotic justice upon them,
they conceived they were treating with lenity, and for whom in a prison
they thought they had provided an asylum? If you expect such obedience,
amongst your other innovations and regenerations, you ought to make a
revolution in Nature, and provide a new constitution, for the human
mind: otherwise your supreme government cannot harmonize with its
executory system. There are cases in which we cannot take up with names
and abstractions. You may call half a dozen leading individuals, whom we
have reason to fear and hate, the nation. It makes no other difference
than to make us fear and hate them the more. If it had been thought
justifiable and expedient to make such a revolution by such means and
through such persons as you have made yours, it would have been more
wise to have completed the business of the fifth and sixth of October.
The new executive officer would then owe his situation to those who are
his creators as well as his masters; and he might be bound in interest,
in the society of crime, and (if in crimes there could be virtues) in
gratitude, to serve those who had promoted him to a place of great lucre
and great sensual indulgence,--and of something more: for more he must
have received from those who certainly would not have limited an
aggrandized creature as they have done a submitting antagonist.
A king circumstanced as the present, if he is totally stupefied by his
misfortunes, so as to think it not the necessity, but the premium and
privilege of life, to eat and sleep, without any regard to glory, can
never be fit for the office. If he feels as men commonly feel, he must
he sensible that an office so circumstanced is one in which he can
obtain no fame or reputation. He has no generous interest that can
excite him to action. At best, his conduct will be passive and
defensive. To inferior people such an office might be matter of honor.
But to be raised to it and to descend to it are different things, and
suggest different sentiments. Does he _really_ name the ministers? They
will have a sympathy with him. Are they forced upon him? The whole
business between them and the nominal king will be mutual counteraction.
In all other countries the office of ministers of state is of the
highest dignity. In France it is full of peril, and incapable of glory.
Rivals, however, they will have in their nothingness, whilst shallow
ambition exists in the world, or the desire of a miserable salary is an
incentive to short-sighted avarice. Those competitors of the ministers
are enabled by your Constitution to attack them in their vital parts,
whilst they have not the means of repelling their charges in any other
than the degrading character of culprits. The ministers of state in
Prance are the only persons in that country who are incapable of a share
in the national councils. What ministers! What councils! What a
nation!--But they are responsible. It is a poor service that is to be
had from responsibility. The elevation of mind to be derived from fear
will never make a nation glorious. Responsibility prevents crimes. It
makes all attempts against the laws dangerous. But for a principle of
active and zealous service, none but idiots could think of it. Is the
conduct of a war to be trusted to a man who may abhor its
principle,--who, in every step he may take to render it successful,
confirms the power of those by whom he is oppressed? Will foreign
states seriously treat with him who has no prerogative of peace or
war,--no, not so much as in a single vote by himself or his ministers,
or by any one whom he can possibly influence? A state of contempt is not
a state for a prince: better get rid of him at once.
I know it will be said that these humors in the court and executive
government will continue only through this generation, and that the king
has been brought to declare the dauphin shall be educated in a
conformity to his situation. If he is made to conform to his situation,
he will have no education at all. His training must be worse even than
that of an arbitrary monarch. If he reads,--whether he reads or not,
some good or evil genius will tell him his ancestors were kings.
Thenceforward his object must be to assert himself and to avenge his
parents. This you will say is not his duty. That may be; but it is
Nature; and whilst you pique Nature against you, you do unwisely to
trust to duty. In this futile scheme of polity, the state nurses in its
bosom, for the present, a source of weakness, perplexity, counteraction,
inefficiency, and decay; and it prepares the means of its final ruin. In
short, I see nothing in the executive force (I cannot call it authority)
that has even an appearance of vigor, or that has the smallest degree of
just correspondence or symmetry or amicable relation with the supreme
power, either as it now exists, or as it is planned for the future
government.
You have settled, by an economy as perverted as the policy, two[125]
establishments of government,--one real, one fictitious: both
maintained at a vast expense; but the fictitious at, I think, the
greatest. Such a machine as the latter is not worth the grease of its
wheels. The expense is exorbitant; and neither the show nor the use
deserve the tenth part of the charge.--Oh! but I don't do justice to the
talents of the legislators: I don't allow, as I ought to do, for
necessity. Their scheme of executive force was not their choice. This
pageant must be kept. The people would not consent to part with
it.--Right: I understand you. You do, in spite of your grand theories,
to which you would have heaven and earth to bend, you do know how to
conform yourselves to the nature and circumstances of things. But when
you were obliged to conform thus far to circumstances, you ought to have
carried your submission farther, and to have made, what you were obliged
to take, a proper instrument, and useful to its end. That was in your
power. For instance, among many others, it was in your power to leave to
your king the right of peace and war.--What! to leave to the executive
magistrate the most dangerous of all prerogatives?--I know none more
dangerous; nor any one more necessary to be so trusted. I do not say
that this prerogative ought to be trusted to your king, unless he
enjoyed other auxiliary trusts along with it, which he does not now
hold. But, if he did possess them, hazardous as they are undoubtedly,
advantages would arise from such a Constitution, more than compensating
the risk. There is no other way of keeping the several potentates of
Europe from intriguing distinctly and personally with the members of
your Assembly, from intermeddling in all your concerns, and fomenting,
in the heart of your country, the most pernicious of all
factions,--factions in the interest and under the direction of foreign
powers. From that worst of evils, thank God, we are still free. Your
skill, if you had any, would be well employed to find out indirect
correctives and controls upon this perilous trust. If you did not like
those which in England we have chosen, your leaders might have exerted
their abilities in contriving better. If it were necessary to exemplify
the consequences of such an executive government as yours, in the
management of great affairs, I should refer you to the late reports of
M. de Montmorin to the National Assembly, and all the other proceedings
relative to the differences between Great Britain and Spain. It would be
treating your understanding with disrespect to point them out to you.
I hear that the persons who are called ministers have signified an
intention of resigning their places. I am rather astonished that they
have not resigned long since. For the universe I would not have stood in
the situation in which they have been for this last twelvemonth. They
wished well, I take it for granted, to the Revolution. Let this fact be
as it may, they could not, placed as they were upon an eminence, though
an eminence of humiliation, but be the first to see collectively, and to
feel each in his own department, the evils which have been produced by
that Revolution. In every step which they took, or forbore to take, they
must have felt the degraded situation of their country, and their utter
incapacity of serving it. They are in a species of subordinate servitude
in which no men before them were ever seen. Without confidence from
their sovereign on whom they were forced, or from the Assembly who
forced them upon him, all the noble functions of their office are
executed by committees of the Assembly, without any regard whatsoever to
their personal or their official authority. They are to execute, without
power; they are to be responsible, without discretion; they are to
deliberate, without choice. In their puzzled situation, under two
sovereigns, over neither of whom they have any influence, they must act
in such a manner as (in effect, whatever they may intend) sometimes to
betray the one, sometimes the other, and always to betray themselves.
Such has been their situation; such must be the situation of those who
succeed them. I have much respect, and many good wishes, for M. Necker.
I am obliged to him for attentions. I thought, when his enemies had
driven him from Versailles, that his exile was a subject of most serious
congratulation. _Sed multæ urbes et publica vota vicerunt_. He is now
sitting on the ruins of the finances and of the monarchy of France.
A great deal more might be observed on the strange constitution of the
executory part of the new government; but fatigue must give bounds to
the discussion of subjects which in themselves have hardly any limits.
As little genius and talent am I able to perceive in the plan of
judicature formed by the National Assembly. According to their
invariable course, the framers of your Constitution have begun with the
utter abolition of the parliaments. These venerable bodies, like the
rest of the old government, stood in need of reform, even though there
should be no change made in the monarchy. They required several more
alterations to adapt them to the system of a free Constitution. But
they had particulars in their constitution, and those not a few, which
deserved approbation from the wise. They possessed one fundamental
excellence: they were independent. The most doubtful circumstance
attendant on their office, that of its being vendible, contributed,
however, to this independency of character. They held for life. Indeed,
they may be said to have held by inheritance. Appointed by the monarch,
they were considered as nearly out of his power. The most determined
exertions of that authority against them only showed their radical
independence. They composed permanent bodies politic, constituted to
resist arbitrary innovation; and from that corporate constitution, and
from most of their forms, they were well calculated to afford both
certainty and stability to the laws. They had been a safe asylum to
secure these laws, in all the revolutions of humor and opinion. They had
saved that sacred deposit of the country during the reigns of arbitrary
princes and the struggles of arbitrary factions. They kept alive the
memory and record of the Constitution. They were the great security to
private property; which might be said (when personal liberty had no
existence) to be, in fact, as well guarded in France as in any other
country. Whatever is supreme in a state ought to have, as much as
possible, ifs judicial authority so constituted as not only not to
depend upon it, but in some sort to balance it. It ought to give a
security to its justice against its power. It ought to make its
judicature, as it were, something exterior to the state.
Those parliaments had furnished, not the best certainly, but some
considerable corrective to the excesses and vices of the monarchy. Such
an independent judicature was ten times more necessary when a democracy
became the absolute power of the country. In that Constitution,
elective, temporary, local judges, such as you have contrived,
exercising their dependent functions in a narrow society, must be the
worst of all tribunals. In them it will be vain to look for any
appearance of justice towards strangers, towards the obnoxious rich,
towards the minority of routed parties, towards all those who in the
election have supported unsuccessful candidates. It will be impossible
to keep the new tribunals clear of the worst spirit of faction. All
contrivances by ballot we know experimentally to be vain and childish to
prevent a discovery of inclinations. Where they may the best answer the
purposes of concealment, they answer to produce suspicion, and this is a
still more mischievous cause of partiality.
If the parliaments had been preserved, instead of being dissolved at so
ruinous a change to the nation, they might have served in this new
commonwealth, perhaps not precisely the same, (I do not mean an exact
parallel,) but near the same purposes as the court and senate of
Areopagus did in Athens: that is, as one of the balances and correctives
to the evils of a light and unjust democracy. Every one knows that this
tribunal was the great stay of that state; every one knows with what
care it was upheld, and with what a religious awe it was consecrated.
The parliaments were not wholly free from faction, I admit; but this
evil was exterior and accidental, and not so much the vice of their
constitution itself as it must be in your new contrivance of sexennial
elective judicatories. Several English commend the abolition of the old
tribunals, as supposing that they determined everything by bribery and
corruption. But they have stood the test of monarchic and republican
scrutiny. The court was well disposed to prove corruption on those
bodies, when they were dissolved in 1771; those who have again dissolved
them would have done the same, if they could; but both inquisitions
having failed, I conclude that gross pecuniary corruption must have been
rather rare amongst them.
It would have been prudent, along with the parliaments, to preserve
their ancient power of registering, and of remonstrating at least upon,
all the decrees of the National Assembly, as they did upon those which
passed in the time of the monarchy. It would be a means of squaring the
occasional decrees of a democracy to some principles of general
jurisprudence. The vice of the ancient democracies, and one cause of
their ruin, was, that they ruled, as you do, by occasional decrees,
_psephismata_. This practice soon broke in upon the tenor and
consistency of the laws; it abated the respect of the people towards
them, and totally destroyed them in the end.
Your vesting the power of remonstrance, which, in the time of the
monarchy, existed in the Parliament of Paris, in your principal
executive officer, whom, in spite of common sense, you persevere in
calling king, is the height of absurdity. You ought never to suffer
remonstrance from him who is to execute. This is to understand neither
council nor execution, neither authority nor obedience. The person whom
you call king ought not to have this power, or he ought to have more.
Your present arrangement is strictly judicial. Instead of imitating your
monarchy, and seating your judges on a bench of independence, your
object is to reduce them to the most blind obedience. As you have
changed all things, you have invented new principles of order. You first
appoint judges, who, I suppose, are to determine according to law, and
then you let them know, that, at some time or other, you intend to give
them some law by which they are to determine. Any studies which they
have made (if any they have made) are to be useless to them. But to
supply these studies, they are to be sworn to obey all the rules,
orders, and instructions which from time to time they are to receive
from the National Assembly. These if they submit to, they leave no
ground of law to the subject. They become complete and most dangerous
instruments in the hands of the governing power, which, in the midst of
a cause, or on the prospect of it, may wholly change the rule of
decision. If these orders of the National Assembly come to be contrary
to the will of the people who locally choose those judges, such
confusion must happen as is terrible to think of. For the judges owe
their place to the local authority, and the commands they are sworn to
obey come from those who have no share in their appointment. In the mean
time they have the example of the court of _Châtelet_ to encourage and
guide them in the exercise of their functions. That court is to try
criminals sent to it by the National Assembly, or brought before it by
other courses of delation. They sit under a guard to save their own
lives. They know not by what law they judge, nor under what authority
they act, nor by what tenure they hold. It is thought that they are
sometimes obliged to condemn at peril of their lives. This is not
perhaps certain, nor can it be ascertained; but when they acquit, we
know they have seen the persons whom they discharge, with perfect
impunity to the actors, hanged at the door of their court.
The Assembly, indeed, promises that they will form a body of law, which
shall be short, simple, clear, and so forth. That is, by their short
laws, they will leave much to the discretion of the judge, whilst they
have exploded the authority of all the learning which could make
judicial discretion (a thing perilous at best) deserving the appellation
of a _sound_ discretion.