Editor’s note: This is the second of six lectures given by H.A.L. Fisher at the University of London in June, 1907. They were published in book form under the title, Bonapartism (London, Oxford at the Clarendon Press, 1908).
(Continued from Part 1)
It was part of France’s good fortune that the man who came to save her was himself a homeless adventurer, sprung not of French but of Italian stock, and attached to no creed, party, or faction of the State. He was a man who assessed the temperament of the French with the critical eye of a foreigner, and found it guilty of many irrelevant and disastrous emotions. For his part, he was not amused by useless sentiments, and imported a cold and wholesome dose of inhumanity into the conduct of affairs, which had so long been perturbed by short sleep, disordered nerves, and the passion of a vainglorious and undisciplined race to play the beau rôle on the theatre of humanity. Knowing by experience what artillery could do against a mob, he was proof against the panic-struck idolatry which had abased one French legislature after another, and made Paris horrible to Europe. His guns had quelled the rioters of Vendémiaire ; he had punished Italian insurgents at Pavia, and stamped out the sudden furies of Cairo. For him the canaille had no terrors. He knew how to abate their strength and win their hearts. In cheap bread lay the supreme talisman of statesmanship.
The needs of France were such that only the highest powers of technical administration were adequate to meet them. Ten years of anarchy had broken up the roads, disorganized the hospitals, interrupted education, and thrown all the charitable institutions of the country out of gear. Forty-five of the departments were reported as being in a state of chronic civil war. Robber bands two, three, eight hundred strong, scoured the country, pillaged the stage-coaches, broke into the prisons, flogged or slew the tax-collectors. The greater part of the clergy was in open rebellion against the State. No one obeyed the law. Conscripts refused to serve; the mobile columns who were entrusted with the duty of policing the disturbed regions had to forage for themselves and lived on rapine. Commercial credit had disappeared, for the currency had been depreciated, the State had declared partial bankruptcy, and English cruisers had long since interrupted foreign trade. Such had been the violence of the Revolution that almost all the talent and virtue of the country had been driven out of public life. The Government was in the hands of a small knot of regicides, second-class revolutionaries, whose names carried no prestige and whose characters did not bear scrutiny. The bureaucracy was immense, but stained with the habit of pillage and corruption; the local officers were reported to be ignorant and venal, and many mayors were unable to sign their name. The navy, which during the American war had proved itself a match for Rodney, had been completely ruined by the democratic prejudice against the gunners and officers, and if other branches of the public service had not been disorganized to the same conspicuous extent there were none which reached an adequate standard of efficiency.
A general sense of uneasiness pervaded the country. The 1,200,000 men who had acquired during the Revolution the lands of the Church or the émigrés moved restlessly in their beds, for they knew themselves to hold under a title which the Church regarded as sacrilegious and would use all her moral influence to overthrow. In the debates of the Paris Jacobins the red spectre of Socialism had raised itself, and had begun to terrify the shopmen.
Napoleon brought to the task of government exactly that assemblage of qualities which the situation required, an unsurpassed capacity for acquiring technical information in every branch of government, a wealth of administrative inventiveness which has never been equalled, a rare power of driving and draining the energies of men, a beautiful clearness of intellect which enabled him to seize the salient features of any subject, however tough, technical, and remote, a soldierly impatience of verbiage in others combined with a serviceable gift of melodramatic eloquence in himself; above all, immense capacity for relevant labour. He could work eighteen hours at a stretch, could turn his mind at once from one subject to another entirely remote from it, and a few minutes were enough to put him in possession of the material facts. ‘I am always working,’ he said once to Roederer, ‘at dinner, at the theatre. At night I get up to work. Last night I got up at two o’clock, put myself in an arm-chair before my fire, to examine the field-states sent in yesterday by the minister of war. I found twenty mistakes.’ His cross-examination was quick and searching; none could tear his secret from the specialist with the dexterity of this man, who knew every process in the making of guns and the administration of armies, whose visual memory was such that it could bear the print on it of the face of France with its network of roads and rivers, towns and bridges, with all the minute detail relevant to military purposes, the effective force of the several regiments, the stock of arms and ammunition at their command. No subordinate could hope to escape his vigilance. ‘In column twenty-two of your account,’ he writes from the camp of Boulogne to Burbé-Marbois, minister of the Public Treasury, ‘I see that among the holders of terminable annuities, you are paying one person of 1701, two of 1702, and more than 2,600 persons before 1720. This means that among the terminal annuitants there are 2,600 persons more than eighty-five years old. An account of these 2,600 persons must be printed, and of all the annuitants up to 1725; this account must be sent round to the prefects to verify the existence of these individuals, and to assure that they are the same persons as those to whom the annuity was credited.’ This capacity for minute technical knowledge was combined with an imaginative grasp of all the human forces which law and administration affected. He looked beyond the clever, sophisticated people in Paris, for whom Voltaire represented the sum of human wisdom, out into the fields and the teeming villages. He saw the peasants, penurious and greedy of the land, as Balzac has painted them, deeply suspicious of the nobility, dreading above all things the restoration of tithes and feudal dues, but romantic, superstitious, uneasy in their conscience, and attached by a thousand subtle ties of sentiment and association to the rites of the Catholic Church. He saw the small bourgeoisie in the provincial towns, prosaic, respectable, timid, whose incapacity for political initiation had been sufficiently evidenced by their inglorious self-effacement during the storm, and he knew that they desired a master who would quell the red politicians, make peace with Europe, and send up the price of Government stock. He realized the feelings of the men who had served in the Revolutionary armies or in one or other branch of the Revolutionary administration, the feelings of the men who had compromised themselves fatally by joining some Radical club, the feelings of all the embarrassed tradesmen in town and country who had managed to rid themselves of their burden of debt owing to the depreciation of Revolutionary paper. He reckoned up the tens of speculators who had made fortunes out of army contracts, the thousands who profiting by the laxity of the administration had escaped the tax-collector, and he understood that, whatever disgust might have been felt for the Republic, France was still wedded to the cause of the Revolution.
He was not a religious man, in any orthodox sense, but he saw what power an autocracy such as that of the Turk or the Tsar gained by the control of religious forces, and knowing the religious sentiment to be profound and indestructible, he was determined to exploit it. ‘Religion,’ he said long afterwards, ‘is a part of destiny. With the soil, the laws, the manners, it forms that sacred whole which is called La Patrie, and which one must never desert. The principal charm of a religion consists in its memories.’ It followed from this that all improvised substitutes for Christianity were destitute of the distinctive power which a religion should possess—the power of awaking historic echoes. Theophilanthropy was a bad comedy; atheism a malady worse than fanaticism and destructive of national ethics; the mistake of the well-meaning philosophers of the Revolution was that, like Du Pont de Nemours, who rewrote the Lord’s Prayer in detestably dull French for the benefit of Theophilanthropist congregations, they had no conception of religion, as a popular, if you like as a vulgar force. ‘Religion,’ as he observed afterwards to Wieland, ‘is not made for philosophers…. If I had to make a religion for philosophers it would be very different from that which I supply to the credulous.’
It was the task of statesmanship not to criticize the existing social forces in the light of philosophic dogma, but to recognize their strength and to use them for its own purpose ―above all things to find and to follow the line of least division. In Italy Napoleon had learnt that a variance between Church and State is a malady which it is the duty of a strong man to cure, and coming to the head of affairs in France he made the fusion of opposites the cardinal feature in his system. Merlin and Muraire were called to preside in the Court of Cassation, though the first of these eminent jurists had condemned his learned brother to be proscribed and deported at Fructidor. Emigrants served in the household, the senate, and the armies; Girondins, Jacobins, and royalists sat together in the law courts, in the departmental councils, and in the Council of the State; the priests poured out into the sunlight from their dungeons, and in virtue of one of the early acts of the new government were permitted to enjoy the free observance of Sunday. ‘On peut se détester et correspondre; quand il s’agit de mon service on doit mettre bas toutes les passions.’ Impartiality was the sovereign maxim of government. Everything was pardoned to the efficient and the docile.
The State which Napoleon founded was an autocracy based upon the plébiscite. Despotic power was as essential to his own purposes and to the needs of France as was the support of the nation duly and patently expressed. ‘Confidence,’ according to the famous dictum of Siéyès, must come from below, power from above.’ We may call the government of the Consulate and the Empire a tyranny if we please, but compared with the government which preceded it, it was a reign of freedom. It bridled the press, stamped out political debate, shook itself free from constitutional checks, and here and there, when political interests were involved, harshly interfered with the course of justice and the freedom of the subject. But it substituted a regular, scientific, civilized administration for a condition of affairs which bordered upon anarchy. It cleansed the air of spite and suspicion, and made life safe and easy for the ordinary householder who was content to let the great world of politics go its own way.
The cornerstone of the central administration was the First Consul, assisted by the Council of State, a body to whom was entrusted the initiative in legislation and the supreme appellate jurisdiction in administrative causes. Here at last was a band of men eminent in technical knowledge, deliberating in secret, drawn from all parties, and consequently enabled to bring to the consideration of the great problems of French government the calm, dispassionate, trained intelligence which their solution demanded. Here was the great central laboratory of Government. It was in the Legislative Committee of the Council that the codes were debated article by article, it is from the administrative decisions of the Council that the first firm and coherent body of French administrative law was formed. Later on, during the Empire, the Council of State became a political school for the young officials. A selected number of young men destined for the public service were permitted to attend the debates and to derive from them instruction in the problems and methods of government. In the Council then was the real motive power of the great machine. The other institutions of the Consulate were devised to mask the transition from liberty to despotism. A small body of a hundred Tribunes permitted to debate but not to vote, a Legislative Assembly permitted to vote but not to debate, a Senate named by the head of the State, endowed with the function of safeguarding the principles of the Constitution and of naming the Tribunes and the legislators from lists submitted to them, after the popular will had been strained through an elaborate succession of sieves—such were the hollow compliments paid to the democratic principle. By degrees portions of the disguise, becoming inconvenient, were modified or suppressed. The Tribunate, which shone with the last glowing embers of Revolutionary eloquence, was first mutilated, then abolished; the dumb legislature sank more and more into insignificance, and the legislative will of the Sovereign made itself increasingly manifest in decrees and senatus consulta. At the close of the Empire every source of friction had been carefully eliminated from the working of the central machine.
The omnipotence of the State was no new idea in French politics; it was the old tradition of the monarchy, old as the close of the fifteenth century, illustrated as much by the industrial legislation of Colbert as by the domiciliary visits of the Terror. But under the Ancien Régime the action of the central authority was cumbrous and impeded by all kinds of obstacles. Royal ordinances had to be confirmed by local Parliaments, royal officials were compelled to accept local franchises. The variety of local custom, of weights and measures, the privileges of the Church, the aristocracy and the guilds, obstructed the smooth and efficient working of the administrative machine. The Revolution swept away the obstacles and Napoleon repaired the machinery. In the Department the will of the Government was represented by the prefect, in the District by the sub-prefect, in the Commune by the mayor. Communal and Departmental Councils met indeed to vote the Budget and to ventilate local grievances, but they were themselves the creatures of the Government. The period during which they were permitted to talk was limited by law, and it was well understood that their function was to smooth rather than to arrest the powerful machinery which was set in motion from Paris.
This highly centralized Government was actuated by the paternal theory of the State. To a mind so logical and comprehensive as Napoleon’s no influence which might affect the psychology, the physique, or the conduct of the nation was indifferent. The physiocrats, impressed by the complicated trammels with which the unwise economists of the Ancien Régime had throttled French trade and industry, cried out for laissez faire. To a man who thought in terms of armies, battalions, regiments, companies, of a nation wheeling about with obedient exactitude at the word of command, such a doctrine seemed anarchic and absurd. The State must form morals, control religion, manufacture a public opinion congenial to its institutions by the censorship of letters, regulate the distribution of private fortunes by its law of inheritance, fashion the minds of children by a great educational monopoly, and stimulate the particular types of effort which it desired to honour by means of Orders, prizes, and scholarships. It must be armed with powers of expropriation for purposes of public utility, and it must strike the imagination of material and prosaic men by its roads and canals, its avenues and streets, its harbours, bridges, and forts. The protection of national industry against foreign competition was part of the general scheme. The food supply of a capital which might some day be forced to stand a siege was subjected to severe regulation, and the butchers and bakers of Paris were compelled to become members of state corporations enjoying an official monopoly of supply upon conditions determined by the Government.
It was a corollary that every form of religious denomination should be controlled by the State. The separation of Church and State which had been carried out in 1795 was rather an unforeseen result of the logic of facts than a premeditated scheme congenial to the general tendencies of the French mind. Neither the philosophers who speculated nor the politicians of the Constituent Assembly who legislated upon the subject had conceived it to be in any way desirable that the Roman Catholic Church should be dissociated from the French State. The conception of the lay state observing strict neutrality in the sphere of religion accorded neither with the Catholic tradition of the country nor with the deep-rooted idea of governmental omnipotence which was the legacy of the monarchy to the Revolution. The word laicité now so frequently on the lips of Frenchmen, was then unknown, nor had a single thinker or politician of eminence questioned the expediency of Church establishment. The civil constitution of the clergy of 1791 offended the Catholic conscience on many points. In particular it enacted that bishops should be chosen by the electoral assembly of their Department, and debarred them from soliciting canonical institution from the Pope. But one thing it did not intend to do; it did not intend to weaken, rather it was its purpose in every way to strengthen the links which bound the Roman Catholic religion to the State. Three things, however, were not foreseen by the framers of the Civil Constitution of the Clergy. The first was the bankruptcy of the Government; the second, the schism in the French Church; the third was the rapid progress of aggressive infidelity among the men who wielded political power under the Terror. These politicians argued that they had very little money, that the Constitutional priests who alone had a claim upon the state chest were a minority of the Roman Church, and that, after all, Catholic priests, whether they had taken the oath to the Constitution or no, might be assumed to favour the counterrevolution. The law of separation passed in 1795 legalized a situation which had existed in fact under the Terror; but it was the fortuitous result of exceptional conditions rather than the well-considered policy of France.
Bonaparte, to whom loose spiritual forces were repugnant, determined to annul these decisions. ‘The people,’ he said, ‘must have a religion, and that religion must be in the hands of the Government. The French Clergy is now led by fifty emigrant bishops in the English pay. Their influence must be destroyed, and for this the authority of the Pope is necessary.’ It was true that many positions advanced by Catholic theologians seemed to him to be contrary to public policy. It was an obvious antinomy that when the civil government had condemned a criminal to death, the priest should give him absolution and promise him Paradise; it was absurd that theological prejudice should obstruct a clear hygienic improvement like cremation. But, to one who viewed the political situation as a whole, the arguments for a treaty with the Church were overwhelming. The Concordat with the Papacy concluded in 1801 healed the schism in the Church, provided the requisite sanction for the land settlement of the Revolution, and restored the connexion of the Church and State. It was supplemented by a series of provisions known as the organic articles, which were designed to police the Church and to regulate its relations with the Holy See. It was for the State to settle the number of persons who might receive ordination in any given year, to supervise the seminaries in which religious instruction was given, to sanction the gathering of Church Councils, and the reception of Papal Bulls. Cathedrals and churches were declared to be the property of the State, but placed at the disposition of the bishops; and the Church, whose ministers received small salaries from the government, was forbidden by law to acquire landed property. Religion, in other words, was to promote the ends of Napoleon’s policy. The curé was expected to advocate conscription from the pulpit, to read out the army bulletins, and to inculcate veneration for the person of the Emperor. He was discouraged from indulging in theological discussions, urged to preach the simple virtues of passive obedience and Christian resignation, to teach the imperial catechism, and to abjure the exciting topics of dogmatic theology or ecclesiastical politics. Since a prolonged tenure of his cure might win him political power with his parishioners, it was well that the curé should be frequently moved from parish to parish. Nor was anything judged more likely to lead to trouble than the confabulation of bishops. These dignitaries of the Church, whose modest stipends and bare, ill-furnished residences contrasted curiously with the sumptuous parade of the great prelates of the monarchy, were forbidden to correspond with each other or with Rome, to open a Church school or hold a Church Synod, without permission of the Government. The argus eye of the Minister of Cults scrutinized every episcopal charge, glanced at the seminarist as he bowed his head over his theme, and followed the country priest into his rustic pulpit.
Having undertaken the task of policing the soul, the State did not shrink from the duty of fashioning the mind. For secondary education it provided the lycée, a public school organized upon a military plan, and for young men who had passed from the lycée there was the University of France, holding, like the butchers and bakers of Paris, a monopoly of a certain product warranted wholesome. In every lycée there was the same programme of studies, the same hours, the same books in the library, the same military uniform. ‘There will never,’ said Napoleon, ‘be a fixed political state of things in this country until we have a body of teachers instructed on established principles. So long as the people are not taught from their earliest years whether they ought to be republicans or royalists, Christians or infidels, the State cannot properly be called a nation.’ There was an end, therefore, of the bold curiosity of the eighteenth century, which played so nimbly over the whole surface of human belief. The political and moral sciences were the alcohol which went to the brains of rhetoricians and journalists, the cause of disorder and inconvenient curiosity. History too, unless properly written under government direction, was a dangerous instrument of education. Mathematics, on the other hand, were safe and useful, medicine indispensable; the physical sciences, abstract or applied, brought glory to the human intellect and had a direct bearing on the national well-being. The University of France, created on March 17, 1808, was intended to include all the educational agencies in the Empire, and to form citizens attached to their religion, their country, and their family. No one could open a school or teach in public without being a graduate of the University, which was to create and administer the public, and to authorize and supervise the private schools. The programme of university studies being designed to train citizens of a particular type, was as much a matter of state concern as the sanitation of the barracks or the inspection of ammunition and gun mountings. But this educational control was limited to the needs of the upper classes. The whole field of primary education was still left to voluntary effort, for it is a sound instinct of despotism to neglect the education of the masses.
Democracy was defined to be ‘a career open to talent’, and in this sense it might be contended that the Napoleonic state was democratic. The principle of social equality which had been the most precious conquest of the Revolution was secured, not indeed with logical completeness, but more fully than in any other European country, in the institutions of the Consulate and Empire. The fiscal system, based upon the principle of a balance between direct and indirect taxes, was roughly adjusted to taxable capacity. The law of inheritance continued to favour equality, and the great truth was discovered that the value of institutions depends upon the degree to which they assist the free development of human powers and the adequate remuneration of human merit. In the army, where efficiency was strictly and instantly tested, no other plan was possible than promotion according to merit, and a system of government scholarships was designed to make an educational ladder for needy members of the middle class. But the elimination of caste, though a primary condition of social equality, is not in itself sufficient to secure an adequate measure of equal opportunity. The Napoleonic state starved education. The civil code, impregnated with the dogmatic individualism of the jurisconsults of the eighteenth century, permitted neither collective bargaining nor the formation of trade unions, and exposed the working classes to the ruthless operation of unfettered competition. In the great struggle between labour and capital the sympathy of Napoleon and of Napoleon’s lawyers was on the side of capital. To capital he gives a majority on the industrial committee which is to decide trade disputes. An article of the civil code upon the hiring of servants and workmen lays down the proposition that the master has to be believed on his affirmation as to the amount of the wages paid during the last year and as to the sums given on account during the current year. The mere play of economic forces results in the establishment of privileged positions which law recognizes and confirms. Indeed, an absence of all distinctions was in Napoleon’s view contrary to human nature. ‘I defy you,’ he said to Berthier, ‘to show me a republic ancient or modern in which there have been no distinctions. You call them baubles; well, it is with baubles that men are led. I do not believe that the French love liberty and equality. The French have not been changed by ten years of revolution. They are like the Gauls, proud and fickle; they have only one sentiment, honour.’ To feed that sentiment he created in the teeth of sharp opposition the Legion of Honour. Then came the creation of a new nobility, and the restoration of entails. But in truth no one of these institutions greatly modified the spirit or structure of French society. The Legion of Honour, a personal distinction, incapable of bequest, and conferred upon all sorts and conditions of men for all sorts and conditions of service, did not, as was feared, create an order. Rather it was the apt recognition of the principle of equal justice. The new nobility, devoid of historic tradition or official status, without functions to perform either in local or central government, and surrounded both in town and country by the strong sentiment of equality, had little influence, save to enlist vulgar ambition in the service of the Empire; and though the introduction of entails would in time have led to the formation of large properties, the qualification for an entail was founded upon wealth, and consequently open to all whose industry was sufficient to secure them an adequate fortune.
The ‘sacred right of freedom’ as it is described in the Constitution of 1799 was not compatible with the restless energy of Napoleon. The civil liberty of the individual was to some extent assured by the institution of the jury of judgement or petty jury, by the publicity of trials, by the right to enter any trade, craft, or profession, and publicly to conform to any type of religious belief. It was, however, abridged in many important respects. There was no machinery analogous to that set up by the English Habeas Corpus Act, to protect a man from illegal imprisonment or to secure for him a speedy trial. A company of more than twenty persons could not meet together without a police permit. No citizen could be certain that his house would not be broken into at night, his papers seized, his person hurried off to a place of security until the police had satisfied their curiosity. The life of Fouché, Duke of Otranto, is a sufficient commentary upon the enormous power wielded by the police. Nothing can be more deplorable than that a minister of police should be the most important factor in the internal government of a country. But Fouché’s position was no symptom of misrule, but rather the inevitable result of the Revolution. Inquisitorial vigilance was necessary for peace. Was there not a recrudescence of the Vendée in the summer of Waterloo?
Under the Empire state prisons were formed to receive political prisoners, and the lettres de cachet, which it had been one of the boasts of the Constituent Assembly to abolish, were practically restored. Liberty of thought was as insecure as personal freedom. By a decree of June 17, 1800, the number of political journals was suddenly reduced to thirteen. The censorship of plays was as recklessly exercised as the censorship of newspapers. A piece by Alexandre Duval which had some royalist references was inadvertently passed by the censor and put upon the Paris stage. Bonaparte caused it to be withdrawn, and, upon a hint from the minister, the author took a year’s holiday in Russia. No pamphlet was too small, no play too bad, for the meticulous interference of the police. The best writers, Chateaubriand, Mme. de Staël, de Bonald, and de Maistre, lived in exile, and the price which France paid for order was the silence of poetry and the death of criticism. ‘A free people is above all a people which respects persons and property. That is the whole spirit of our code.’ Judged by its respect for the property of French citizens, the system of Napoleon did not belie the hopes of those who saw in him the saviour of society from anarchy or socialism. The Code fortified the principle of private property not only by assisting its diffusion, but also by the care with which it prevented the acquisition of land by religious or industrial corporations. The State, however, limited the rate of interest, retained the penalty of confiscation, and claimed the right to expropriate individuals with due compensation on grounds of public utility. So long as the Napoleonic régime lasted, bourgeois and peasant alike felt themselves to be sheltered from the quadruple menace of the socialists, the royalists, the clericals, and the Jews.
The army had been based upon conscription during the Revolution, and Napoleon made conscription the cornerstone of the State. The economics of the army have recently been unveiled—the bad clothing, the arrears of pay, the flat dishonesty of the administration, which made the most exorbitant demands upon the courage of the soldier, and then disappointed him of his reward. Yet when did the army fail Napoleon? From Moscow to Lisbon, from the border of Denmark to the Straits of Messina, French soldiers proved themselves possessed of the fire and dash which first gave to the sons of freedom their incalculable momentum.
The system of law and justice organized by Napoleon has been equally permanent—the hierarchy of courts, the appeal to the Council of State in administrative cases, the five Codes. This is not the place for a detailed examination of the principles of Napoleonic law. It is well, however, to notice that the civil code alone was drawn up during the Consulate, that it is nearer both in time and spirit to the revolutionary law than are the codes which were compiled in a more perfunctory manner under the darker shadows of imperial despotism. It represents, in fact, a fair judicial compromise between the democratic ideas of the revolutionary assemblies and the jurisprudence of the monarchy, whereas the later codes are practically reissues of ordinances passed under the Kings with some amendments. Again, it is worth remarking that the law of persons as defined in the civil code reflects three characteristic opinions of Napoleon—his persuasion of the inferiority of woman to man, his strong belief in paternal authority, and his view of the importance of divorce as a bulwark of family life. The spirit of the codes may perhaps be represented as an enlightened application of immemorial traditions to an altered condition of affairs. We may imagine that if it could be evoked in some bodily shape from the lifeless texts and commentaries,it might make some such allocution as this to the shades of the men who had framed the laws of the Revolution, and prepared the way for the legists of the Empire: ‘You were right to recognize divorce, despite the opposition of the priests, for it is essential that unhappy marriages should admit of dissolution, but you were wrong to make divorce so easy, for you weakened the family and lessened the sense of responsibility under which marriages should be contracted. Again, your rigid democratic arithmetic has led to some results which conflict with public policy and tend to deprave private morals. Equality is all very well, but you allow bastards to inherit equally with lawful children, and you deprive the owner of property of any power of testation, by enjoining a strict subdivision of nine-tenths of his inheritance into as many equal shares as he has children lawful or unlawful. We, on the contrary, make a distinction between children born in and out of wedlock, for we cannot allow a democratic sum to work out to the perdition of morals. Again, we think it hard that a father should have no power of manifesting any individual preference in his will. We hardly think this consistent either with the idea of private property or with the conception of liberty. We are even so lax as to imagine that the very power of giving some extra reward to a compliant son may fortify the authority of the parent, as it may reasonably be supposed that the distribution of red ribbons and other forms of patronage increases the influence of the First Consul. Consequently, while we aim at equality in our land system, we slightly enlarge the liberty of the testator and conversely slightly diminish that portion of the inheritance which must be carved into equal shares. We make a cautious return to the older state of the law which we know to have prevailed in the north of France, and if our system is slightly less favourable to equality than the law of the revolution, it is more congenial to the spirit of liberty and to the tradition of French jurisprudence. Again, in your charming enthusiasm you went so far as to decree that legal procedure was wicked, and that society could get on without lawyers. Indeed you made it illegal for litigants to seek for professional advice, so deep was your conviction that a patriotic heart and a sound head were sufficient to state, traverse, or decide an action. Our view is different. We observe that your rule was never obeyed even when it was most dangerous to dispute your authority. It only meant that litigants paid higher fees than ever for counsel surreptitiously given and received. Procedure seems no doubt technical to laymen, and the procedure of French Courts may be capable of simplification; but it is not, as you imagine, the predatory apparatus of a bandit profession, but a series of rules the total effect of which is to equalize the chance of litigants and to minimize the room for caprice. The rules of civil procedure have for the most part been determined by the greatest of French jurists, the Chancellor d’Aguesseau, in the reign of Louis XV. It is our purpose to take his work as the basis of our code. We notice, however, that in the philanthropic zeal which distinguished the legal work of men imbued by the elevated spirit of Montesquieu and Beccaria, the lawyers of the Revolution introduced from England the double jury and decided that a criminal trial should be oral and public. After much hesitation, and despite a great bulk of legal opinion, we have decided to retain the petty jury, or jury of judgement, but in the interests of executive authority we cannot permit the lax procedure with which the English appear to be content. The genius of our ancient jurisconsults evolved a system which cannot be improved on for the exploration and punishment of crime. It was formulated in 1670, and to this system we make a partial return. We intend to suppress the grand jury, to allow the deposition of witnesses to be taken secretly in the absence of the prisoner, and to permit the juge d’instruction to decline to hear witnesses for the defence. But while this preparatory inquiry, ancient, we admit, and inquisitorial, is necessary for the full exploration of the case, we concede some of your improvements at a later stage. We allow the accused when the trial comes on to produce witnesses, to be assisted by counsel, to be heard in his own defence, to be tried in open court, and condemned or acquitted by a jury. It is true that our juries will be nominated by the prefect and that the prefect may act as juge d’instruction, but we cannot permit the guilty to escape, and our experience of its performances during the revolution has taught us to view the jury with some distrust. Again, you legislators of the Constituent Assembly, though wise enough to retain capital punishment, erred on the side of humanitarian indulgence. The Empire does not so err. We believe in confiscation; we restore the penalty of branding. We inflict a death penalty not only for murder and arson, but for theft and brigandage, corruption and false witness, where these offences can be shown to imperil life. We mutilate the parricide before sending him to the death which he deserves. We punish state crimes due to “false political ideas, the spirit of party, or ill-understood ambition”, by deportation for life. If we may be allowed to express ourselves in general terms, we cannot subscribe to the doctrine of the infinite perfectibility of man which has been preached by some of the most eloquent of your philosophers. On the contrary, we find man to be credulous and often criminal, and if the truth be told, the eruption of new and powerful passions during the revolution which your wisdom has adorned has contributed not a little to debase morality and to evoke the necessity of some strong countervailing medicine.’
(Continued in Part 3)
