According to their invariable course, the framers of your constitution
have begun with the outer 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 humour 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, its 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. These
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 nearly 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 a
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
counsel nor execution; neither authority nor obedience. The person whom
you call king, ought not to have this power, or he ought to have more.