2. Property. Property stands second on the list,-proprietary rights are in the number of the natural and imprescriptible rights of man of the rights which a man is not indebted for to the laws, and which cannot be taken from him by the laws. Men. that is, every man (for a general expression given without exception is an universal one) has a right to property, to proprietary rights, a right which cannot be taken away from him by the laws. To proprietary rights. Good: but in relation to what subject? for as to proprietary rights without a subject to which they are referable without a subject in or in relation to which they can be exercised— they will hardly be of much value, they will hardly be worth taking care of, with so much solemnity. In vain would all the laws in the world have ascertained that I have a right to something. If this be all they have done for me — if there be no specific subject in relation to which my proprietary rights are established, I must either take what I want without right, or starve. As there is no such subject specified with relation to each man, or to any man (indeed how could there be?) the necessary inference (taking the passage literally) is, that every man has all manner of proprietary rights with relation to every subject of property without exception: in a word, that every man has a right to every thing. Unfortunately, in most matters of property, what is every man's right is no man's right; so that the effect of this part of the oracle, if observed, would be, not to establish property, but to extinguish it— to render it impossible ever to be revived: and this is one of the rights declared to be imprescriptible.
It will probably be acknowledged, that according to this construction, the clause in question is equally ruinous and absurd: — and hence the inference may be, that this was not the construction — this was not the meaning in view. But by the same rule, every possible construction which the words employed can admit of, might be proved not to have been the meaning in view nor is this clause a whit more absurd or ruinous than all that goes before it, and a great deal of what comes after it. And, in short, if this be not the meaning of it, what is? Give it a sense give it any sense whatever, - it is mischievous: - to save it from that imputation, there is but one course to take, which is to acknowledge it to be nonsense.
Thus much would be clear, if anything were clear in it, that according to this clause, whatever proprietary rights, whatever property a man once has, no matter how, being imprescriptible, can never be taken away from him by any law or of what use or meaning is the clause? So that the moment it is acknowledged in relation to any article, that such article is my property, no matter how or when it became so, that moment it is acknowledged that it can never be taken away from me therefore, for example, all laws and all judgments, whereby anything is taken away from me without my free consent. all taxes, for example, and all fines are void, and, as such, call for resistance and insurrection, and so forth, as before.
3. Security. Security stands the third on the list of these natural and imprescriptible rights which laws did not give, and which laws are not in any degree to be suffered to take away. Under the head of security, liberty might have been included, so likewise they will hardly be of much value, they will property: since security for liberty, or the hardly be worth taking care of, with so much enjoyment of liberty, may be spoken of as a solemnity. In vain would all the laws in branch of security: — security for property, the world have ascertained that I have a or the enjoyment of proprietary rights, as right to something. If this be all they have another. Security for person is the branch done for me--if there be no specific subject in that seems here to have been understood:relation to which my proprietary rights are security for each man's person, as against all established, I must either take what I want those hurtful or disagreeable impressions (exwithout right, or starve. As there is no such clusive of those which consist in the mere subject specified with relation to each man, disturbance of the enjoyment of liberty,) by or to any man (indeed how could there be?) which a man is affected in his person; loss of the necessary inference (taking the passage life-loss of limbs loss of the use of limbs literally) is, that every man has all manner of wounds, bruises, and the like. All laws are null and void, then, which on any account or in any manner seek to expose the person of any man to any risk — which appoint capital or other corporal punishment —which expose a man to personal hazard in the service of the military power against foreign enemies, or in that of the judicial power against delinquents:— all laws which, to preserve the country from pestilence, authorize the immediate execution of a suspected person, in the event of his transgressing certain bounds.
4. Resistance to oppression. Fourth and last in the list of natural and imprescriptible rights, resistance to oppression — meaning, I suppose, the right to resist oppression. What is oppression? Power misapplied to the prejudice of some individual. What is it that a man has in view when he speaks of oppression? Some exertion of power which he looks upon as misapplied to the prejudice of some individual to the producing on the part of such individual some suffering, to which (whether as forbidden by the laws or otherwise) we conceive he ought not to have been subjected. But against everything that can come under the name of oppression, provision has been already made, in the manner we have seen, by the recognition of the three preceding rights; since no oppression can fall upon a man which is not an infringement of his rights in relation to liberty, rights in relation to property, or rights in relation to security, as above described. Where, then, is the difference?-to what purpose this fourth clause after the three first? To this purpose: the mischief they seek to prevent, the rights they seek to establish, are the same; the difference lies in the nature of the remedy endeavoured to be applied. To prevent the mischief in question, the endeavour of the three former clauses is, to tie the hand of the legislator and his subordinates, by the fear of nullity, and the remote apprehension of general resistance and insurrection. The aim of this fourth clause is to raise the hand of the individual concerned to prevent the apprehended infraction of his rights at the moment when he looks upon it as about to take place.
Whenever you are about to be oppressed, you have a right to resist oppression: whenever you conceive yourself to be oppressed, conceive yourself to have a right to make resistance, and act accordingly. In proportion as a law of any kind any act of power, supreme or subordinate, legislative, administrative, or judicial, is unpleasant to a man, especially if, in consideration of such its unpleasantness, his opinion is, that such act of power ought not to have been exercised, he of course looks upon it as oppression: as often as anything of this sort happens to a as often as anything happens to a man to inflame his passions, this article, for fear his passions should not be sufficiently inflamed or in any manner seek to expose the person of themselves, sets itself to work to blow of any man to any risk - which appoint capi- the flame, and urges him to resistance. Subtal or other corporal punishment — which ex- mit not to any decree or other act of power, pose a man to personal hazard in the service of the justice of which you are not yourself of the military power against foreign enemies, perfectly convinced. If a constable call upon or in that of the judicial power against de- you to serve in the militia, shoot the constable linquents: all laws which, to preserve the and not the enemy; if the commander of a country from pestilence, authorize the imme-press-gang trouble you, push him into the diate execution of a suspected person, in the sea- if a bailiff, throw him out of the winevent of his transgressing certain bounds. dow. If a judge sentence you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.
ARTICLE III.
The principle of every sovereignty [government] resides essentially in the nation. No body of men — no single individual — can exercise any authority which does not expressly issue from thence.
Of the two sentences of which this article is composed, the first is perfectly true, perfectly harmless, and perfectly uninstructive. Government and obedience go hand in hand. Where there is no obedience, there is no government; in proportion as obedience is paid, the powers of government are exercised. This is true under the broadest democracy: this is equally true under the most absolute monarchy. This can do no harm — can do no good, anywhere. I speak of its natural and obvious import taken by itself, and supposing the import of the word principle to be clear and unambiguous, as it is to be wished that it were, that is, taking it to mean efficient cause. Of power on the one part, obedience on the other is most certainly everywhere the efficient cause.
But being harmless, it would not answer the purpose, as delivered by the immediately succeeding sentence: being harmless, this meaning is not that which was in view. It is meant as an antecedent proposition, on which the next proposition is grounded in the character of a consequent. No body of men, no individual, can exercise any authority which does not issue from the nation in an express manner. Can- still the ambiguous and envenomed can. What cannot they in point of fact? Cannot they exercise authority over other people, if and so long as other people submit to it? This cannot be their meaning: this cannot be the meaning, not because it is an untrue and foolish one, but because it contributes nothing to the declared purpose. The meaning must be here, as elsewhere, that of every authority not issuing from the nation in an express manner, every act is void: consequently ought to be treated as such — resisted, risen up against, and overthrown. Issuing from the nation in an express manner, is having been conferred by the nation, by a formal act, in the exercise of which the nation, i. e. the whole nation, joined.
An authority issues from the nation in one sense, in the ordinary implied manner, which the nation submits to the exercise of, having been in the habit of submitting to it, every man as long as he can remember, or to some superior authority from which it is derived. But this meaning it was the evident design of the article to put a negative upon; for it would not have answered the disorganizing purpose, all along apparent, and more than once avowed. It is accordingly for the purpose of putting a negative upon it, that the word expressément in an express way or manner is subjoined. Every authority is usurped and void, to which a man has been appointed in any other mode than that of popular election; and popular election made by the nation that is, the whole nation (for no distinction or division is intimated,) in each case.
And this is expressly declared to be the case, not only in France, under the government of France, but everywhere, and under every government whatsoever. Consequently, all the acts in every government in Europe, for example, are void, excepted, perhaps, or rather not excepted, two or three of the Swiss Cantons;-the persons exercising the powers of government in these countries, usurpers -resistance to them, and insurrection against them, lawful and commendable.
The French government itself not excepted: whatever is, has been, or is to be, the government of France. Issue from the nation: that is, from the whole nation, for no part of it is excluded. Women consequently included, and children — children of every age. For if women and children are not part of the nation, what are they? Cattle? Indeed, how can a single soul be excluded, when all men-all human creatures-are, and are to be, equal in regard to rights-in regard to all sorts of rights, without exception or reserve?
Article IV.
Liberty consists in being able to do that which is not hurtful to another, and therefore the exercise of the natural rights of each man has no other bounds than those which insure to the other members of the society the enjoyment of the same rights. These bounds cannot be determined but by the law.
In this article, three propositions are included:— Proposition 1. Liberty consists in being able to do that which is not hurtful to another. What! in that, and nothing else? Is not the liberty of doing mischief liberty? If not, what | is it? and what word is there for it in the language, or in any language by which it can be spoken of? How childish, how repugnant to the ends of language, is this perversion of language!to attempt to confine a word in common and perpetual use, to an import to which nobody ever confined it before, or will continue to confine it! And so I am never to know whether I am at liberty or not to do or to omit doing one act, till I see whether or no there is anybody that may be hurt by it— till I see the whole extent of all its consequences? Liberty! What liberty?as against what power? as against coercion from what source? As against coercion issuing from the law?— then to know whether the law have left me at liberty in any respect in relation to any act, I am to consult not the words of the law, but my own conception of what would be the consequences of the act. If among these consequences there be a single one by which anybody would be hurt, then, whatever the law says to me about it, I am not at liberty to do it. I am an officer of justice, appointed to superintend the execution of punishments ordered by justice: if I am ordered to cause a thief to be whipped, to know whether I am at liberty to cause the sentence to be executed, I must know whether whipping would hurt the thief: if it would, then I am not at liberty to whip the thief- to inflict the punishment which it is my duty to inflict.
Proposition 2. And therefore the exercise of the natural rights of each man has no other bounds than those which insure to the other members of the society the enjoyment of those same rights. Has no other bounds? Where is it that it has no other bounds? In what nation-under what government? If under any government, then the state of legislation under that government is in a state of absolute perfection. If there be no such government, then, by a confession necessarily implied, there is no nation upon earth in which this definition is conformable to the truth.
Proposition 3. These bounds cannot be determined but by the law. More contradiction, more confusion. What then? this liberty, this right, which is one of four rights that existed before laws, and will exist in spite of all that laws can do, owes all the boundaries it has, all the extent it has, to the laws. Till you know what the laws say to it, you do not know what there is of it, nor what account to give of it: and yet it existed, and that in full force and vigour, before there were any such things as laws; and so will continue to exist, and that for ever, in spite of anything which laws can do to it. Still the same inaptitude of expressions still the same confusion of that which it is supposed is, with that which it is conceived ought to be.
What says plain truth upon this subject? What is the sense most approaching to this nonsense?
The liberty which the law ought to allow of, and leave in existence — leave uncoerced, unremoved — is the liberty which concerns those acts only, by which, if exercised, no damage would be done to the community upon the whole; that is, either no damage at all, or none but what promises to be compensated by at least equal benefit.
Accordingly, the exercise of the rights allowed to and conferred upon each individual, ought to have no other bounds set to it by the law, than those which are necessary to enable it to maintain every other individual in the possession and exercise of such rights as it is consistent with the greatest good of the community that he should be allowed. The marking out of these bounds ought not to be left to anybody but the legislator acting as such that is, to him or them who are acknowledged to be in possession of the sovereign power: that is, it ought not to be left to the occasional and arbitrary declaration of any individual, whatever share he may possess of subordinate authority.
The word autrui - another, is so loose, making no distinction between the community and individuals, — as, according to the most natural construction, to deprive succeeding legislators of all power of repressing, by punishment or otherwise, any acts by which no individual sufferers are to be found; and to deprive them beyond a doubt of all power of affording protection to any man, woman, or child, against his or her own weakness, ignorance, or imprudence.
ARTICLE V.
The law has no right to forbid any other actions than such as are hurtful to society. Whatever is not forbidden by the law, cannot be hindered; nor can any individual be compelled to do that which the law does not command.
Sentence 1. The law has no right (n'a le droit) to forbid any other actions than such as are hurtful to society. The law has no right (n'a le droit, not ne peut pas.) This, for once, is free from ambiguity. Here the mask of ambiguity is thrown off. The avowed object of this clause is to preach constant insurrection, to raise up every man in arms against every law which he happens not to approve of. For, take any such action you will, if the law have no right to forbid it, a law forbidding it is null and void, and the attempt to execute it an oppression, and resistance to such attempt, and insurrection in support of such resistance, legal, justifiable, and commendable.
To have said that no law ought to forbid any act that is not of a nature prejudical to society, would have answered every good purpose, but would not have answered the purpose which is intended to be answered here.
A government which should fulfil the expectations here held out, would be a government of absolute perfection. The instance of a government fulfilling these expectations, never has taken place, nor till men are angels ever can take place. Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of this manifesto excite insurrection: here, as elsewhere, it is therefore its direct object to excite insurrection at all times against every government whatsoever.
Sentence 2. Whatever is not forbidden by the law, cannot be hindered, nor can any individual be compelled to do what the law does not command.
The effect of this law, for want of the requisite exceptions or explanations, is to annihilate, for the time being and for ever, all powers of command: all power, the exercise of which consists in the issuing and inforcing obedience to particular and occasional com. mands; domestic power, power of the police, judicial power, military power, power of su perior officers, in the line of civil administration, over their subordinates If I say to my son, Do not mount that horse, which you are not strong enough to manage; if I say to my daughter, Do not go to that pond, where there are young men bathing; they may set me at defiance, bidding me show them where there are anything about mounting unruly horses, or going where there are young men bathing, in the laws. By the same clause, they may each of them justify themselves in turning their backs upon the lesson I have given them; while my apprentice refuses to do the work I have given him; and my wife, instead of providing the meals I had desired her to provide for ourselves and family, tells me she thinks fit to go and dine elsewhere. In the existing order of things, under any other government than that which was here to be organized, whatever is commanded or forbidden in virtue of a power which the law allows of and recognises, is virtually and in effect commanded and forbidden by the law itself, since, by the support it gives to the persons in question in the exercise of their respective authorities, it shows itself to have adopted those commands, and considered them as its own before they are issued, and that, whatever may be the purport of them, so long as they are confined within the limits it has marked out. But all these existing governments being fundamentally repugnant to the rights of man, are null and void, and incapable of filling up this or any other gap in the texture of the new code. Besides, this right of not being hindered from doing anything which the law itself has not forbidden, nor compelled to do anything which it has not commanded, is an article of natural, unalienable, sacred, and imprescriptible right, over which political laws have no sort of power; so that the attempt to fill up the gap, and to establish any such power of commanding or forbidding what is not already commanded and forbidden by the law, would be an act of usurpation, and all such powers so attempted to be established, null and void. How also can any such powers subsist in a society of which all the members are free and equal in point of rights?
Admit, however, that room is given for the creation of the powers in question by the spirit, though not by the letter of this clause what follows? That in proportion as it is harmless, it is insignificant, and incapable of answering its intended purpose. This purpose is to protect individuals against oppressions, to which they might be subjected by other individuals possessed of powers created by the law, in the exercise or pretended exercise of those powers. But if these powers are left to the determination of succeeding and (according to the doctrine of this code) inferior legislatures, and may be of any nature and to any extent which these legislatures may think fit to give them, what does the protection here given amount to, especially as against such future legislatures, for whose hands all the restraints which it is the object of the declaration to provide are intended? Mischievous or nugatory is still the alternative.
The employment of the improper word can, instead of the proper word shall, is not unworthy of observation. Shall is the language of the legislator who knows what he is about, and aims at nothing more:- can, when properly employed in a book of law, is the language of the private commentator or expositor, drawing inferences from the text of the law from the acts of the legislator, or what takes the place of the acts of the legislator the practice of the courts of justice.
ARTICLE VI.
ARTICLE VI.
The law is the expression of the general will. Every citizen has the right of concurring in person, or by his representatives, in the formation of it: it ought to be the same for all, whether it protect, or whether it punish. All the citizens being equal in its eyes, are equally admissible to all dignities, public places, and employments, according to their capacity, and without any other distinction than that of their virtues and their talents.
This article is a hodge-podge, containing a variety of provisions, as wide from one another as any can be within the whole circuit of the law some relating to the constitutional branch, some to the civil, some to the penal; and, in the constitutional department, some relating to the organization of the supreme power, others to that of the subordinate branches.
Proposition 1. The law is the expression of the general will. The law? What law is the expression of the general will? Where is it so? In what country?—at what period of time? In no country at no period of time -in no other country than France - nor even in France. As to general, it means universal; for there are no exceptions made, women, children, madmen, criminals. for these being human creatures, have already been declared equal in respect of rights: nature made them so; and even were it to be wished that the case were otherwise, nature's work being unalterable, and the rights unalienable, it would be to no purpose to attempt it.
What is certain is, that in any other nation at any rate, no such thing as a law ever existed to which this definition could be applied. But that is nothing to the purpose, since a favourite object of this effusion of universal benevolence, is to declare the governments of all other countries dissolved, and to persuade the people that the dissolution has taken place.
But anywhere—even in France—how can the law be the expression of the universal or even the general will of all the people, when by far the greater part have never entertained any will, or thought at all about the matter; and of those who have, a great part (as is the case with almost all laws made by a large assembly) would rather it had not taken place.
Sentence 2. Every citizen has the right of concurring in person, or by his representatives, in the formation of it.
Here the language changes from the enunciation of the supposed practice, to the enunciation of the supposed matter of right. Why does it change? After having said so silly a thing as that there is no law anywhere, but what was the expression of the will of every member of the community, what should have hindered its going on in the same silly strain, and saying that everybody did concur - did join in the formation of it? However, as the idea of right is, in this second sentence at any rate, presented by its appropriate term, the ambiguity diffused by the preceding sentence is dissipated; and now it appears beyond a doubt, that every law in the formation of which any one citizen was debarred from concurring, either in person or by his representatives, is, and ever will be, here and there and everywhere, a void law.
To characterize proxies, the French language, like the English, has two words representatives and deputies: the one liable to misconstruction, the other not, — to misconstruction, and such misconstruction as to be made expressive of a sense directly opposite to that which appears here to have been intended; the one tainted with fiction as well as ambiguity, the other expressing nothing but the plain truth. Being so superior to imitation so free to choose not tied down by usage as people in Britain are- how come they to have taken the English word representatives, which has given occasion to so many quibbles, instead of their own good word deputies, which cannot give occasion to anything like a quibble? The king of Great Britain is acknowledged to be the representative of the British nation, in treating with foreign powers; but does the whole nation ever meet together and join in signing an authority to him so to do? The king of Great Britain is acknowledged, in this instance, to represent the British nation; but, in this instance, is it ever pretended that he has been deputed by it? The parliamentary electors have been said to represent the non-electors; and the members of parliament to represent both; but did anybody ever speak of either members or electors as having been deputed by the non-electors? Using the improper word representatives, instead of the proper word deputies, the French might be saddled with the British constitution, for anything there is in this clause to protect them from so horrible a grievance. Representatives sounded better, perhaps, than deputies. Men who are governed by sounds, sacrifice everything to sound: they neither know the value of precision, nor are able to attain it.
Sentence 3. It [the law] ought to be the same for all, whether it protect or whether it punish[i. e. as well in respect of the protection it affords, as in respect of the punishment it inflicts.]
This clause appears reasonable in the main, but in respect to certain points it may be susceptible of explanations and exceptions, from the discussion of which it might have been as well if all posterity had not been debarred.
As to protection, English law affords a punishment, which consists in being put out of the protection of the law; in virtue of which a man is debarred from applying for redress from any kind of injury. For my own part, I do not approve of any such punishment: but perhaps they do, who having it in their power to abrogate it, yet retain it. In France, I suppose it is approved of, where, in a much severer form than the English, it has been so much practised. This species of punishment is inhibited for ever, by the letter at least of this clause. As to the spirit of it, one of the ruling features of this composition from end to end is, that the spirit of it is incomprehensible.
Under the English law, heavier damages are given in many instances to the ministers of justice, acting as such, in case of ill-founded prosecutions against them, for supposed injuries to individuals, than would be given to private individuals aggrieved by prosecutions for the same injuries. The notion evidently is, that the servants of the public, not having so strong an interest in defending the rights of the public as individuals have in defending their own, the public man would be apt to be deterred from doing his duty if the encouragement he have to do it were no greater than the encouragement which the individual has to defend his right. These examples, not to plunge further into details, appear sufficient to suggest a reasonable doubt, whether, even in this instance, the smack - smooth equality, which rolls so glibly out of the lips of the rhetorician, be altogether compatible with that undeviating conformity to every bend and turn in the line of utility which ought to be the object of the legislator.
As to punishment, a rule as strictly subor dinate to the dietates of utility, as the doctrine of undeviating equality is congenial to the capricious play of the imagination, is, not in any instance to employ more punishment than is necesary to the purpose. Where, as between two individuals, the measure of sensibility is different, a punishment which in name—that is, according to every description which could be given of it in and by the law, would be equal in the two instances-would in effect be widely different. Fifty lashes may, in the estimation of the law, be equal to fifty lashes; but it is what no man can suppose, that the suffering which a hard-working young man, or even a young woman of the hardworking class, would undergo from the ap plication of fifty lashes, could be really equal in intensity to that which must have been endured from the same nominal punishment (were even the instrument and force applied the same) by the Countess Lapuchin, till then the favourite, and one of the finest ornaments of the court of a Russian empress. Banishment would, upon the face of the law, be equal to banishment: but it will not readily be admitted, that to a servant of the public, who happens to have nothing to live upon but a salary, the receipt of which depends upon attendance at his office, it would be no greater punishment than to a sturdy labourer, who in one country as well as in another, may derive an equal livelihood from the labour of his hands.