Chapter 37

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.

It is curious to observe, that the administrative bodies are carefully exempted from the jurisdiction of these new tribunals. That is, those persons are exempted from the power of the laws who ought to be the most entirely submitted to them. Those who execute public pecuniary trusts ought of all men to be the most strictly held to their duty. One would have thought that it must have been among your earliest cares, if you did not mean that those administrative bodies should be real, sovereign, independent states, to form an awful tribunal, like your late parliaments, or like our King's Bench, where all corporate officers might obtain protection in the legal exercise of their functions, and would find coercion, if they trespassed against their legal duty. But the cause of the exemption is plain. These administrative bodies are the great instruments of the present leaders in their progress through democracy to oligarchy. They must therefore be put above the law. It will be said that the legal tribunals which you have made are unfit to coerce them. They are, undoubtedly. They are unfit for any rational purpose. It will be said, too, that the administrative bodies will be accountable to the general Assembly. This, I fear, is talking without much consideration of the nature of that Assembly or of these corporations. However, to be subject to the pleasure of that Assembly is not to be subject to law, either for protection or for constraint.

This establishment of judges as yet wants something to its completion. It is to be crowned by a new tribunal. This is to be a grand state judicature; and it is to judge of crimes committed against the nation, that is, against the power of the Assembly. It seems as if they had something in their view of the nature of the high court of justice erected in England during the time of the great usurpation. As they have not yet finished this part of the scheme, it is impossible to form a direct judgment upon it. However, if great care is not taken to form it in a spirit very different from that which has guided them in their proceedings relative to state offences, this tribunal, subservient to their inquisition, _the Committee of Research_, will extinguish the last sparks of liberty in France, and settle the most dreadful and arbitrary tyranny ever known in any nation. If they wish to give to this tribunal any appearance of liberty and justice, they must not evoke from or send to it the causes relative to their own members, at their pleasure. They must also remove the seat of that tribunal out of the republic of Paris.[126]

Has more wisdom been displayed in the constitution of your army than what is discoverable in your plan of judicature? The able arrangement of this part is the more difficult, and requires the greater skill and attention, not only as a great concern in itself, but as it is the third cementing principle in the new body of republics which you call the French nation. Truly, it is not easy to divine what that army may become at last. You have voted a very large one, and on good appointments, at least fully equal to your apparent means of payment. But what is the principle of its discipline? or whom is it to obey? You have got the wolf by the ears, and I wish you joy of the happy position in which you have chosen to place yourselves, and in which you are well circumstanced for a free deliberation relatively to that army, or to anything else.

The minister and secretary of state for the War Department is M. de La Tour du Pin. This gentleman, like his colleagues in administration, is a most zealous assertor of the Revolution, and a sanguine admirer of the new Constitution which originated in that event. His statement of facts relative to the military of France is important, not only from his official and personal authority, but because it displays very clearly the actual condition of the army in France, and because it throws light on the principles upon which the Assembly proceeds in the administration of this critical object. It may enable us to form some judgment how far it may be expedient in this country to imitate the martial policy of France.

M. de La Tour du Pin, on the fourth of last June, comes to give an account of the state of his department, as it exists under the auspices of the National Assembly. No man knows it so well; no man can express it better. Addressing himself to the National Assembly, he says,--

"His Majesty has _this day_ sent me to apprise you of the multiplied disorders of which _every day_ he receives the most distressing intelligence. The army [_le corps militaire_] threatens to fall into the most turbulent anarchy. Entire regiments have dared to violate at once the respect due to the laws, to the king, to the order established by your decrees, and to the oaths which they have taken with the most awful solemnity. Compelled by my duty to give you information of these excesses, my heart bleeds, when I consider who they are that have committed them. Those against whom it is not in my power to withhold the most grievous complaints are a part of that very soldiery which to this day have been so full of honor and loyalty, and with whom for fifty years I have lived the comrade and the friend.

"What incomprehensible spirit of delirium and delusion has all at once led them astray? Whilst you are indefatigable in establishing uniformity in the empire and moulding the whole into one coherent and consistent body, whilst the French are taught by you at once the respect which the laws owe to the rights of man and that which the citizens owe to the laws, the administration of the army presents nothing but disturbance and confusion. I see in more than one corps the bonds of discipline relaxed or broken,--the most unheard-of pretensions avowed directly and without any disguise,--the ordinances without force,--the chiefs without authority,--the military chest and the colors carried off,--the authority of the king himself [_risum teneatis_] proudly defied,--the officers despised, degraded, threatened, driven away, and some of them prisoners in the midst of their corps, dragging on a precarious life in the bosom of disgust and humiliation. To fill up the measure of all these horrors, the commandants of places have had their throats out under the eyes and almost in the arms of their own soldiers.

"These evils are great; but they are not the worst consequences which may be produced by such military insurrections. Sooner or later they may menace the nation itself. _The nature of things requires_ that the army should never act but as _an instrument_. The moment that, erecting itself into a deliberate body, it shall act according to its own resolutions, _the government, be it what it may, will immediately degenerate into a military democracy_: a species of political monster which has always ended by devouring those who have produced it.

"After all this, who must not be alarmed at the irregular consultations and turbulent committees formed in some regiments by the common soldiers and non-commissioned officers, without the knowledge, or even in contempt of the authority, of their superiors?--although the presence and concurrence of those superiors could give no authority to such monstrous democratic assemblies [_comices_]."

It is not necessary to add much to this finished picture,--finished as far as its canvas admits, but, as I apprehend, not taking in the whole of the nature and complexity of the disorders of this military democracy, which, the minister at war truly and wisely observes, wherever it exists, must be the true constitution of the state, by whatever formal appellation it may pass. For, though he informs the Assembly that the more considerable part of the army have not cast off their obedience, but are still attached to their duty, yet those travellers who have seen the corps whose conduct is the best rather observe in them the absence of mutiny than the existence of discipline.

I cannot help pausing here for a moment, to reflect upon the expressions of surprise which this minister has let fall relative to the excesses he relates. To him the departure of the troops from their ancient principles of loyalty and honor seems quite inconceivable. Surely those to whom he addresses himself know the causes of it but too well. They know the doctrines which they have preached, the decrees which they have passed, the practices which they have countenanced. The soldiers remember the sixth of October. They recollect the French guards. They have not forgot the taking of the king's castles in Paris and at Marseilles. That the governors in both places were murdered with impunity is a fact that has not passed out of their minds. They do not abandon the principles, laid down so ostentatiously and laboriously, of the equality of men. They cannot shut their eyes to the degradation of the whole noblesse of France, and the suppression of the very idea of a gentleman. The total abolition of titles and distinctions is not lost upon them. But M. du Pin is astonished at their disloyalty, when the doctors of the Assembly have taught them at the same time the respect due to laws. It is easy to judge which of the two sorts of lessons men with arms in their hands are likely to learn. As to the authority of the king, we may collect from the minister himself (if any argument on that head were not quite superfluous) that it is not of more consideration with these troops than it is with everybody else. "The king," says he, "has over and over again repeated his orders to put a stop to these excesses; but in so terrible a crisis, _your_ [the Assembly's] concurrence is become indispensably necessary to prevent the evils which menace the state. _You_ unite to the force of the legislative power _that of opinion_, still more important." To be sure, the army can have no opinion of the power or authority of the king. Perhaps the soldier has by this time learned, that the Assembly itself does not enjoy a much greater degree of liberty than that royal figure.

It is now to be seen what has been proposed in this exigency, one of the greatest that can happen in a state. The minister requests the Assembly to array itself in all its terrors, and to call forth all its majesty. He desires that the grave and severe principles announced by them may give vigor to the king's proclamation. After this we should have looked for courts civil and martial, breaking of some corps, decimating of others, and all the terrible means which necessity has employed in such cases to arrest the progress of the most terrible of all evils; particularly, one might expect that a serious inquiry would be made into the murder of commandants in the view of their soldiers. Not one word of all this, or of anything like it. After they had been told that the soldiery trampled upon the decrees of the Assembly promulgated by the king, the Assembly pass new decrees, and they authorize the king to make new proclamations. After the secretary at war had stated that the regiments had paid no regard to oaths, _prêtés avec la plus imposante solennité_, they propose--what? More oaths. They renew decrees and proclamations as they experience their insufficiency, and they multiply oaths in proportion as they weaken in the minds of men the sanctions of religion. I hope that handy abridgments of the excellent sermons of Voltaire, D'Alembert, Diderot, and Helvétius, on the Immortality of the Soul, on a Particular Superintending Providence, and on a Future State of Rewards and Punishments, are sent down to the soldiers along with their civic oaths. Of this I have no doubt; as I understand that a certain description of reading makes no inconsiderable part of their military exercises, and that they are full as well supplied with the ammunition of pamphlets as of cartridges.

To prevent the mischiefs arising from conspiracies, irregular consultations, seditious committees, and monstrous democratic assemblies [_comitia, comices_] of the soldiers, and all the disorders arising from idleness, luxury, dissipation, and insubordination, I believe the most astonishing means have been used that ever occurred to men, even in all the inventions of this prolific age. It is no less than this:--The king has promulgated in circular letters to all the regiments his direct authority and encouragement, that the several corps should join themselves with the clubs and confederations in the several municipalities, and mix with them in their feasts and civic entertainments! This jolly discipline, it seems, is to soften the ferocity of their minds, to reconcile them to their bottle companions of other descriptions, and to merge particular conspiracies in more general associations.[127] That this remedy would be pleasing to the soldiers, as they are described by M. de La Tour du Pin, I can readily believe,--and that, however mutinous otherwise, they will dutifully submit themselves to _these_ royal proclamations. But I should question whether all this civic swearing, clubbing, and feasting would dispose them, more than at present they are disposed, to an obedience to their officers, or teach them better to submit to the austere rules of military discipline. It will make them admirable citizens after the French mode, but not quite so good soldiers after any mode. A doubt might well arise, whether the conversations at these good tables would fit them a great deal the better for the character of _mere instruments_, which this veteran officer and statesman justly observes the nature of things always requires an army to be.

Concerning the likelihood of this improvement in discipline by the free conversation of the soldiers with the municipal festive societies, which is thus officially encouraged by royal authority and sanction, we may judge by the state of the municipalities themselves, furnished to us by the war minister in this very speech. He conceives good hopes of the success of his endeavors towards restoring order _for the present_ from the good disposition of certain regiments; but he finds something cloudy with regard to the future. As to preventing the return of confusion, "for this the administration" (says he) "cannot be answerable to you, as long as they see the municipalities arrogate to themselves an authority over the troops which your institutions have reserved wholly to the monarch. You have fixed the limits of the military authority and the municipal authority. You have bounded the action which you have permitted to the latter over the former to the right of requisition; but never did the letter or the spirit of your decrees authorize the commons in these municipalities to break the officers, to try them, to give orders to the soldiers, to drive them from the posts committed to their guard, to stop them in their marches ordered by the king, or, in a word, to enslave the troops to the caprice of each of the cities or even market-towns through which they are to pass."