Part 4

ART. 42. In this case the chamber of peers exercises a discretionary power, both in assigning the character of the crime, and in the punishment to be inflicted.

ART. 43. Before it is decided, that a minister shall be put upon his trial, the chamber of representatives must declare, that there are grounds for examining into the charge brought against him.

ART. 44. This declaration can be made only on the report of a committee of sixty members drawn by lot. This committee cannot make its report till at least ten days after its nomination.

ART. 45. When the chamber has declared, that there are grounds for examination, it may summon the minister before it, to demand an explanation of him. This summons cannot take place, till ten days after the committee has made its report.

ART. 46. In all other cases, ministers having departments cannot be summoned or sent for by the chambers.

ART. 47. When the chamber of representatives has declared, that there are grounds for examination against a minister, a new committee is to be formed, of sixty members, drawn by lot as the former; and this committee makes a fresh report on the subject of bringing him to trial. This committee does not make its report till ten days after its nomination.

ART. 48. The bringing to trial cannot be decided upon, till ten days after the report has been read, and distributed among the members.

ART. 49. The accusation being resolved upon, the chamber of representatives names five commissioners, chosen from among its own members, to conduct the charge before the chamber of peers.

ART. 50. Article 75 of head 8 of the constitutional act of the 22d of Frimaire, year 8, declaring, that the agents of the government can be prosecuted only in consequence of a decision of the council of state, shall be modified by a law.

HEAD V.

_Of the judicial power._

ART. 51. The Emperor appoints all the judges. They are for life, and irremovable, from the instant of their appointment; the nomination of judges of the peace, and of commerce, excepted, which will take place as heretofore.

The present judges, appointed by the Emperor agreeably to the decree of the senate of the 12th of October, 1807, and whom he may think proper to retain, will receive appointments for life before the 1st of January next.

ART. 52. The institution of juries is retained.

ART. 53. The debating of criminal causes is to be public.

ART. 54. Military crimes alone are amenable to military tribunals.

ART. 55. All other crimes, even if committed by military men, are under the jurisdiction of the civil tribunals.

ART. 56. All crimes and offences, that were amenable to the high imperial court, and the trial of which is not reserved by the present act for the chamber of peers, are to be carried before the ordinary tribunals.

ART. 57. The Emperor has the right of pardoning, even in correctional cases, and of granting amnesties.

ART. 58. The interpretations of laws demanded by the court of cassation shall be given in the form of a law.

HEAD VI.

_Rights of citizens._

ART. 59. Frenchmen are equal in the eye of the law, both in contributing to the taxes and public expenses, and in regard to admission to employments civil or military.

ART. 60. No one can be taken out of the hands of the judges assigned him by the law, on any pretence.

ART. 61. No one can be prosecuted, arrested, detained in custody, or banished, except in cases provided for by the law, and according to the forms prescribed.

ART. 62. Freedom in religious worship is guarantied to all.

ART. 63. All property possessed or acquired agreeably to the laws, and all debts of the state, are inviolable.

ART. 64. Every citizen has a right to print and publish his opinions, he signing them, without any previous censorship; saving that he is legally responsible, after publication, to be tried by a jury, even though the application of a correctional punishment only should be requisite.

ART. 65. The right of petition is secured to all the citizens. Every petition is that of an individual (_est individuelle_). These petitions may be addressed, either to the government, or to the two chambers; nevertheless, even the latter must be superscribed "to his Majesty the Emperor." They must be presented to the chambers under the guarantee of a member, who recommends the petition. They are read publicly; and, if the chamber take them into consideration, they are carried to the Emperor by the president.

ART. 66. No place, no part of the territory, can be declared in a state of siege, except in case of invasion by a foreign power, or of civil disturbance.

In the former case, the declaration is made by an act of the government.

In the second case, it can be made only by the law. However, if the case occur, when the chambers are not assembled, the act of government, declaring the state of siege, must be converted into a proposal for a law in the first fifteen days after the meeting of the chambers.

ART. 67. The French people declare farther, that, in the delegation it has made, and now makes, of its powers, it has not intended, and does not intend, to confer the right of proposing the re-establishment of the Bourbons, or of any prince belonging to that family, on the throne, even in case of the extinction of the imperial dynasty; or the right of re-establishing either the ancient feudal nobility, or feudal and seigniorial rights, or tithes, or any privileged and predominant form of worship; or the power of making any infringement of the irrevocability of the sale of national domains: it formally prohibits the government, the chambers, and the citizens, from every proposal in respect to these.

Done at Paris, the 22d of April, 1815.

(_Signed_) NAPOLEON. By the Emperor, _The minister secretary of state,_ (_Signed_) The Duke of BASSANO.

* * * * *

This additional act did not answer the general expectation.

The public had hoped, to receive from Napoleon a new constitution, freed from the faults and abuses of the preceding constitutions; and it was surprised, grieved, dissatisfied, when it saw, by the very preamble of the additional act, that it was nothing but a _modification_ of the former constitutions, decrees of the senate, and other acts, by which the empire was governed.

What confidence, people cried, can such a production inspire? What guarantee can it afford the nation? Do we not know, that it was by means of these decrees of the senate, that Napoleon sported with our most sacred laws? and, since they are now maintained and confirmed, may he not employ them, as he formerly did, to interpret after his own fashion his additional act, alter its nature, and render it illusory?

It had been to be wished, undoubtedly, that the additional act had not revived the name, and borrowed the assistance, of all the senatorial acts, become on so many accounts objects of the public contempt and derision: but this was impossible[7]. They were the basis of our institutions; and they could not have been proscribed in a body, without arresting the progress of government, and subverting the established order of things from top to bottom.

[Footnote 7: Notwithstanding the charter, and the laws daily passed, it is found necessary, to recur every day to rules established by the ancient legislation of the senate.]

Besides, the fear of Napoleon's putting them in vigour was founded only on vague suppositions. The oppressive arrangements of the decrees of the senate were annulled, both in fact and in law, by the principles, which the additional act sanctioned: and Napoleon had rendered it impossible for him to augment his authority, or to abuse it, by the immense power, with which he had invested the chambers, the responsibility he had thrown on his agents and ministers, and the inviolable guarantees he had conferred on freedom of opinion and personal liberty. The slightest attempt would have betrayed his secret intentions; and a thousand voices would have been raised, to say to him: "We, who are as good as you, have made you our King, on condition, that you keep our laws: if not, not[8]."

[Footnote 8: The well-known words, in which the cortes of Arragon address the kings of Spain at their coronation.]

The re-establishment of the chamber of peers, imported from England by the Bourbons, excited no less vividly the public discontent.

It was clear, in fact, that the privileges, and peculiar jurisdiction, which the peers exclusively enjoyed, constituted a manifest violation of the laws of equality; and that the hereditary state of the peerage was a formal infraction of the right of all Frenchmen, to be equally admissible to the offices of the state.

Accordingly the friends of liberty and equality with reason reproached Napoleon for having falsified his promises; and given them, instead of a constitution bottomed on the principles of equality and liberty, which he had solemnly professed, a shapeless act, more favourable than the charter, or any of the preceding constitutions, to the nobility and their institutions.

But Napoleon, when he promised the French a constitution, that might be termed _republican_, had rather followed the political suggestions of the moment, than consulted the welfare of France. Restored to himself, ought he to have adhered strictly to the letter of his promises, or interpreted them merely as an engagement, to give France a liberal constitution, as perfect as possible?

The answer cannot be doubtful.

Now the testimony of the most learned civilians, the experience of England for 125 years, had demonstrated to him, that the government best adapted to the habits, manners, and social relations of a great nation; that which affords the greatest pledge of happiness and stability; in fine, that which best reconciles political liberty with the degree of power necessary to the chief of a state; is a representative monarchical government. It was Napoleon's duty, therefore, as a legislator, and a paternal sovereign, to give this mode of government the preference.

This point granted, and it is incontestable, Napoleon was under the necessity of establishing an hereditary and privileged chamber of peers; for a representative monarchy cannot subsist, without an upper chamber, or chamber of peers; as a chamber of peers cannot subsist without privileges, and without being hereditary.

None therefore but the insincere; or men, who, though good patriots, unconsciously substitute their passions or prejudices in the place of the public welfare; can reproach Napoleon for having introduced this institution into our political organization.

The re-establishment of an intermediate chamber, perhaps, would not have wounded them so deeply, if care had been taken, to give it a name less sullied by feudal recollections: but the revolution had exhausted the nomenclature of public magistracies. Besides, the Emperor thought, that this was the only title answerable to its high destination. Perhaps, too, as Louis XVIII. had had his peers, he was not displeased, to have his also.

A third accusation bore hard on Napoleon. He promised us, it was urged, as a natural consequence of the fundamental truth, _the throne is made for the nation, and not the nation for the throne_, that our deputies, assembled at the _Champ de Mai_, should give to France, jointly with him, a constitution conformable to the interests and wishes of the nation; and by an odious breach of faith, he grants us an additional act, after the manner of Louis XVIII; and this he forces us to adopt in the lump, without allowing us to reject those parts, that may wound our dearest and most sacred rights.

Napoleon had proclaimed, it is true, on the 1st of March, that this constitution should be the work of the nation: but since this period circumstances had altered. It was of importance to the preservation of peace at home, and to the relations between Napoleon and foreign powers, that the state should be speedily established and that Europe should find in its new laws those safeguards against the ambition and despotism of the Emperor, _and perhaps too against the re-establishment of a republic_, that it might deem desirable.

Literally to comply with the words of Napoleon, it would have been necessary, for the electoral colleges to give their deputies written instructions, as in 1789. The assembling of these colleges, the drawing up of their instructions after discussion, the choosing of delegates, their journeying to Paris, the distribution of the labour, the preparation, examination, and discussion of the bases of the constitution, the disputative conferences with the delegates of the Emperor, &c. &c., would have consumed an incalculable portion of time, and left France in a state of anarchy, that would have deprived it of the means or possibility of making peace or war with foreigners.

Thus, then, far from blaming the Emperor for deviating at the moment from this part of his promises, he on the contrary deserves credit for having voluntarily resigned the dictatorship, with which circumstances had invested him, and placed public liberty under the protection of the laws. Had he not been _sincere_; had he not been _honestly_ disposed, to restore to the people their rights, and confine his own within proper limits, he would not have been in haste, to publish the additional act: he would have been for gaining time, in hopes that victory or peace, by consolidating the sceptre in his hands, would have enabled him to dictate laws, instead of subjecting himself to them.

In fine, the additional act was reproached with having re-established the confiscations abolished by the charter.

The majority of the counsellors of state and ministers, and M. de Bassano more particularly, strongly opposed this renewed provision of our revolutionary laws. But the Emperor considered the confiscation of estates as the most efficacious means of bridling the royalists; and he persisted obstinately in not giving it up; reserving the power of relinquishing it, when circumstances would permit.

Upon the whole, the additional act was not without blemishes; but these blemishes, easy to be removed, no way affected the beauty or goodness of its basis.

It acknowledged the principle of the sovereignty of the people.

It secured to the three powers of the state the strength and independence necessary, to render their actions free and efficacious.

The independence of the representatives was guarantied by their number, and the mode of their election.

The independence of the peers, by their being hereditary.

The independence of the sovereign by the imperial _veto_, and the happy establishment of the other two powers, which serve him mutually as a safeguard.

The liberties of the people, solidly established, were liberally endowed with all the concessions granted by the charter, and all those subsequently claimed.

The trial of all libels (_délits de la presse_) by a jury, protected and secured freedom of opinion. It defended patriotic writers from the anger of the prince, and the complaisance of his agents. It even assured them of impunity, whenever their writings are in harmony with the secret opinions and wishes of the nation.

Personal liberty was guarantied, not only by the old laws, and the irremoveableness of the judges, but also by two new provisions; one, the responsibility of ministers; the other, the approaching abolition of the impunity, with which public functionaries of all classes had been invested by the constitution of the year 8, and afterward by the regal government.

It was still farther guarantied by the insurmountable barrier opposed to the abuse of the right of banishment, by reducing the jurisdiction of military courts within their natural limits, and by restricting the power of declaring any portion of the country in a state of siege; a power hitherto arbitrary, and by help of which the sovereign suspended at will the authority of the constitution, and placed the citizens, in fact, out of the pale of the law.

The additional act, in fine, by the obstacles it opposed to the usurpations of supreme power, and the innumerable guarantees it secured to the nation, established public and private liberty on foundations not to be shaken; yet, from the most whimsical of all inconsistencies, it was considered as _the work of despotism_, and occasioned Napoleon the loss of his popularity.

The writers most celebrated for their understanding and patriotism took up the defence of Napoleon: but in vain did they quote Delolme, Blackstone, Montesquieu; and demonstrate, that no modern state, no republic, had possessed such liberal and beneficial laws: their eloquence and their erudition were without success. The contemners of the additional act, deaf to the voice of reason, would judge of it only from its title; and as this title displeased and alarmed them, they persisted in blackening and condemning the work on the score of its name, according to the vulgar proverb, _Give a dog a bad name, and hang him_.

Napoleon, far from foreseeing this fatal result, had persuaded himself, on the contrary, that he should receive credit for having so promptly and generously accomplished the hopes of the nation; and he had prepared a long proclamation to the French people in his own hand, in which he sincerely congratulated himself and them on the happiness, that France was about to enjoy under the sway of his new laws.

This proclamation, as may easily be guessed, came to nothing[9]. In its place came a decree for convoking the electoral colleges, in which Napoleon, informed of the public rumours, excused himself, on the ground of the pressure of circumstances, for having abridged the forms he had promised to follow in composing the constitutional act; and announced, that this act, containing in itself the principles of every improvement, might be modified in conformity to the wishes of the nation. By the terms of this decree, the electoral colleges were called on to choose the members of the approaching assembly of representatives; and Napoleon excused himself afresh, for being compelled by the state of affairs, to require them to proceed to the election of deputies previous to the acceptance of the constitution.

[Footnote 9: The Emperor had ordered this proclamation to be burned; but I found it so excellent, that I thought it my duty to preserve it. At the moment when Napoleon set out for the army, I was not in Paris; and one of the principal clerks of the cabinet, M. Rathery, having found it among my papers, had the courage to throw it into the fire.]

It was at the _Champ de Mai_, that the electors of all the departments were to assemble, and proceed to the collection of votes for its rejection or adoption.

The idea of renewing the ancient assemblies of the nation, as it was first formed by the Emperor, was no doubt a grand and generous conception, and singularly calculated to restore to patriotism its energy and lustre; but at the same time, it must be confessed, it bore the stamp of imprudent daring, and might have given Napoleon an irreparable stroke. Was it not to be feared, that, in the equivocal situation in which he was placed, the electors, having every thing to dread from the Bourbons and foreign powers, would not accept so hazardous a mission, and leave the assembly unattended?

Was it not also probable, that no one would covet the dangerous honour of making part of the new national representation, the first act of which must necessarily be, to proscribe for ever the dynasty of the Bourbons, and acknowledge Napoleon, in spite of the foreign powers, the sole and legitimate sovereign of France?

However, so true it is, that with Napoleon events always belied the most sagacious conjectures, the electors hastened in crowds to Paris; and men most respectable for wealth and character entered the lists to be chosen deputies, soliciting votes with as much ardour, as if France had been tranquil and happy[10].

[Footnote 10: I speak generally: I know there were departments, the electoral colleges of which, from various causes, were composed only of a small number of individuals.]

And why was it so? Because, in the eyes of the electors and of the deputies, the object at stake was not the fate of a particular man, but of their country. It was because the critical situation of France, instead of intimidating the partisans of the revolution, awakened in their hearts the most courageous sentiments of patriotism.

They, whom I here call the partisans of the revolution, were not, as certain persons endeavour to persuade the world, those sanguinary beings, who were branded with the title of Jacobins, but that immense body of Frenchmen, who, since the year 1789, have concurred more or less in the destruction of the feudal system, with its privileges and abuses; of those Frenchmen, in fine, who are no strangers to the value of liberty, and the dignity of man.

But was the assembly of the _Champ de Mai_ to be deprived of its chief ornament, the Empress and her son? The Emperor was not ignorant, that this princess was carefully watched; and that she had been surprised and threatened into an oath, to communicate all the letters she might receive. He knew, also, that she was surrounded by improper persons: but he thought, that he owed it to himself, and to his affection for the Empress, to exhaust every means of putting an end to her captivity. At first he attempted by several letters, full of feeling and dignity, to move the justice and sensibility of the Emperor of Austria. Entreaties and reclamations proving ineffectual, he resolved, to despatch an officer of the crown to Vienna, to negotiate, or demand publicly, in the name of nature and the law of nations, the deliverance of the Empress and her son. This mission was entrusted to the Count de Flahaut, one of his aides-de-camp. No person was more capable of fulfilling it worthily than this officer. He was a true Frenchman, spirited, amiable, and brave. He shone equally in the field of battle, in a diplomatic conference, and in the drawing-room pleasing every where by the agreeableness and firmness of his character.

M. de Flahaut set out, but could not advance beyond Stutgard. This disgrace converted into painful regret the joy, to which the hope of seeing again the young prince and his august mother had already given birth.

The people who resided near the road they would pass had already made preparations for testifying their love and their respect.

The return of Napoleon had been celebrated by enthusiastic shouts, that resembled the intoxication of victory: that of the Empress would have inspired only tender emotions. Acclamations tempered by tears of joy, the roads strewed with flowers, the village maidens adorned in their best attire and happy looks, would have given this sight the appearance of a family festival; and Marie Louise would have seemed, not the daughter of the Cæsars returning to her territories, but a beloved mother, who, after a long and painful absence, is at length restored to the wishes of her children.

Her son, over whose head such high destinies were then depending, would have excited transports not less vivid, or less affecting. Torn from a throne, and from his country, while yet in his cradle, he had not ceased to turn his eyes and his remembrances toward the land that had given him birth: a number of bold and ingenious expressions had disclosed his regrets and his hopes; and these expressions, repeated and learned by heart, had rendered this august infant the object of the dearest thoughts and affections.