Those, if any such there are, to whom distinctions such as these would appear consonant to reason and utility, might perhaps regard them as not irreconcilable with the language of this clause. But others might think them either not reasonable, or, though reasonable, not thus reconcilable. And were any such distinctions to be ingrafted into the law by any succeeding legislators, those who did not approve of the alteration would, if at all actuated by any regard to the tenor and spirit of this declaration, raise a cry of aristocracy, and pronounce the alteration void: and then comes resistance and insurrection, and all the evils in their train.
Sentence 4. All the citizens being equal in its eyes, are all of them admissible to all dignities, public places, and employments, according to their capacity, and without any the blood of the murdered person, and orderother distinction than that of their virtues and their talents.
This is one of the few clauses, not to say the only one, which does not seem liable to very serious objection: there is nothing to object to in its general spirit and meaning, though perhaps there is something as to the expression. In general, it were to be wished that no class of men should stand incapacitated with regard to any object of competition by any general law: nor can anything be said in favour of those hereditary incapacitations which suggested and provoked this clause. Yet as governments are constituted, and as the current of opinion runs, there may be cases where some sorts of incapacitation in regard to office seem called for by the purpose which operated as the final cause in the institution of the office. It seems hardly decent or consistent, for example, to allow to a Jew the faculty of presenting to a Christian benefice with cure of souls: though, by a judgment of no very ancient date, the law of England was made to lend its sanction to an appointment of this sort. As inconsistent does it appear to admit a Catholic patron to appoint to a Protestant, or a Protestant to a Catholic benefice; at least so long as diversities in matters of religious profession continue to have ill-will for their accompaniment. Ecclesiastical patronage in the hands of individuals, is indeed one of the abuses, or supposed abuses, which it was the object of this code to eradicate and since then, the maintenance of an ecclesiastical establishment of any kind at the expense of the state, has, in France, been added to the catalogue of abuses. But at the time of the promulgation of this code, the spirit of subversion had not proceeded this length: ecclesiastical offices were still kept up; though, in relation to all these, together with all other offices, the right of nomination was given to assemblies of the people. The incongruity of admitting the professor of a rival religion to the right of suffrage, would therefore be the same in this instance as in the case where the nomination rested in a single breast, though the danger would seldom be of equal magnitude.
Madmen, and criminals of the worst description, are equally protected against exclusion from any office, or the exercise of any political right. As to offices which under this system a man cannot come into possession of but by election, the inconvenience, it may be said, cannot be great; for though not incapable of being elected, there is no danger of their being so. But this is not the case with regard to any of those political privileges which this system gives a man in his own right, and as a present derived from the hands of nature-such as the right of suffrage with regard to offices. Were an assassin, covered with the blood of the murdered person, and ordered for execution on the second of the month—or, which is doubtless esteemed worse, a royalist convicted of adherence to the government under which his country had existed for so many hundred years—to put in his claim for admittance to give his suffrage in the election of a deputy to the convention, or of a mayor of the Paris municipality, I see not how his claim could be rejected without an infringement of this clause. Indeed, if this right, like all the others, be, as we are told over and over again, a present of the goddess Nature, and proof against all attacks of law, what is to be done, and what remedy can be administered by the law? Something, it is true, is said of talents and of virtues; and the madman, it may be said, is deficient in talents, and the criminal in point of virtues. But neither talents nor virtues are mentioned otherwise than as marks of pre-eminence and distinction, recommending the possessors to a proportionable degree of favour and approbation with a view to preference: nothing is said of any deficiency in point of talent or virtue as capable of shutting the door against a candidate: distinction is the word, not exception,—distinction among persons all within the list, not exception excluding persons out of the list.
So far from admitting the exclusion of classes of men, however incompetent, the provision does not so much as admit of the exclusion of individuals from any office. An individual, or a knot of individuals, bent upon affording a constant obstruction to all business, and selected perhaps for that very purpose, might be returned to the supreme assembly, or any other; nor could they be got rid of without a breach of the natural and inviolable rights of man, as declared and established by this clause.
What makes the matter still the clearer is, that the particular provision is given in the character of a consequence of, that is, as being already included in the preceding article, declaring the perfect and unchangeable equality of mankind in respect of all manner of rights: "The citizens being all of them equal in its sight, are all of them equally admissible,” and so forth. As the general proposition, therefore, admits of no exception to it, no more can this particular application of it have one. Virtues and talents sound prettily, and flatter the imagination, but in point of clearness, had that been the object, the clause, such as it is, would have been all the better had it ended with the words public places and employments; and had all that is said about capacity, and distinction, and virtues, and talents, been left out.
ARTICLE VII.
ARTICLE VII.
No one can be accused, arrested or detained, but in the cases determined by the law, and according to the forms prescribed by the law. Those who solicit, issue, execute, or cause to be executed, arbitrary orders, ought to be punished; but every citizen, summoned or arrested in virtue of the law, ought to obey that instant: he renders himself culpable by resistance Sentence 1. No one can be accused, arrested, or detained, but in the cases determined by the law, and according to the forms prescribed by the law.
Here again we have the improper word can, instead of ought. Here, however, the power of the law is recognized, and passes unquestioned the clause, therefore, is in so far not mischievous and absurd, but only nugatory, and beside the purpose. The professed object of the whole composition is to tie the hands of the law, by declaring pretended rights over which the law is never to have any power, — liberty, the right of enjoying liberty: - here this very liberty is left at the mercy and good pleasure of the law. As it neither answers the purpose it professes to have in view, so neither does it fulfil the purpose which it ought to have had in view, and might have fulfilled, the giving the subject, or, to speak in the French style, the citizen, that degree of security which, without attempting to bind the hands of succeeding legislators, might have been given him against arbitrary mandates.
There is nothing in this article which might not be received, and without making any alteration, into the constitutional codes of Prussia, Denmark, Russia, or Morocco. It is or is not law (no matter which, for I put it so only for supposition sake). it is law, let us say, in those countries, that upon order signed or issued by any one of a certain number of persons-suppose ministers of state any individual may be arrested at any time, and detained in any manner and for any length of time, without any obligation on the part of the person issuing the order to render account of the issuing or of the execution of it to anybody but the monarch. If such were the law in these countries respectively, before the establishment of such a law as this clause imports, such may it remain, and that without effecting any abridgment of the powers of the ministers in question, or applying any check to the abuses of those powers, or affording the subject any security or remedy against the abuses of those powers, after the introduction of such article.
The case in which it is determined by the law, that a man may be so arrested and detained, is the case of an order having been Issued for that purpose by any one in such a list of ministers; and the form in which the order for that purpose must be conceived, is the wording in the form in which orders to the purpose in question have been in use to The case in which it is determined by the law, that a man may be so arrested and detained, is the case of an order having been issued for that purpose by any one in such a list of ministers; and the form in which the order for that purpose must be conceived, is the wording in the form in which orders to the purpose in question have been in use to be worded, or, in short, any other form which the ministers in question may be pleased to give it. If to this interpretation any objection can be made, it must be grounded on the ambiguity of the word the law — an ambiguity resulting from the definition above given of it in this declaratory code. If the laws are all of them ipso facto void, as this manifesto has, by the preceding article, declared them to be in all countries where the laws are made by other authority than that of the whole body of the people, then indeed the security intended to be afforded is afforded; because in that case no arrest or detention can be legal, till the ground and form of it have been preordained by a law so established. On the contrary, if that article be to be explained away, and countries foreign to France are to be left in possession of their laws, then the remedy and security amounts to nothing, for the reason we have seen. Nugatory or mischievous: such is the option every where else - such is the option here.
Sentence 2. Those who solicit, issue, execute or cause to be executed, arbitrary orders, ought to be punished.
Yes, says a Moullah of Morocco, after the introduction of this article into the Morocco code, — yes, if an order to the prejudice of the liberty of the subject be illegal, it is an arbitrary order, and the issuing of it is an offence against the liberty of the subject, and as such ought to be, and shall be punished. If one dog of an infidel presume to arrest or detain another dog of an infidel, the act of arrest and detention is an arbitrary one, and nothing can be more reasonable than what the law requires, viz. that the presuming dog be well bastinadoed. But if one of the faithful, to every one of whom the sublime emperor, crowned with the sun and moon, has given the command over all dogs, think fit to shut up this or that dog in a strange kennel, what is there of arbitrariness in that? It is no more than what our customs, which are our laws, allow of everywhere, when the true believers have dogs under them.
The security of the individual in this behalf depends, we see, upon the turn given to that part of the law which occupies itself in establishing the powers necessary to be established for the furtherance of justice. Had the penners of this declaration been contented with doing what they might have done consistently with reason and utility, in this view they might have done thus:- they might have warned and instructed them to be particular in the indication of the cases in which they would propose to grant such powers, and in the indication of the forms according to which the powers so granted should be exercised;for instance, that no man should be arrested but for some one in the list of cases enumerated by the law as capable of warranting an arrest; nor without the specification of that case in an instrument, executed for the purpose of warranting such arrest; nor unless such instrument were signed by an officer of such a description; and so on: not to tempt to exhibit a code of such importance, extent, and nicety, in the compass of a parenthesis. In doing so, they would have done what would at least have been innocent, and might have had its use:- - but in doing so, they would not have prosecuted their declared purpose; which was not only to tutor and lecture their more experienced and consequently more enlightened successors, but to tie their hands, and keep their fellowcitizens in a state of constant readiness to cut their throats.
Sentence 3. But every citizen summoned or arrested in virtue of the law, ought to obey that instant he renders himself culpable by resistance.
This clause is mighty well in itself: - the misfortune is, that it is nothing to the purpose. The title of this code is the Declaration of Rights; and the business of it is accordingly, in every other part of it, to declare such rights, real or supposed, as are thought fit to be declared. But what is here declared is for once a duty; the mention of which has somehow or other slipt in, as it were through inadvertence. The things that people stand most in need of being reminded of, are, one would think, their duties:- for their rights, whatever they may be, they are apt enough to attend to of themselves. Yet it is only by accident, under a wrong title, and as it were by mistake, and in this single instance, that anything is said that would lead the body of the people to suspect that there were any such things appertaining to them as duties.
He renders himself culpable by resistance: Oh yes certainly, unless the law for the infringement of which he is arrested, or attempted to be arrested, be an oppresive one: or unless there be anything oppressive in the behaviour of those by whom the arrest or detention is performed. If, for instance, there be anything of the insolence of office in their language or their looks, if they lay hold of him on a sudden, without leaving him time to run away, -if they offer to pinion his arms while he is drawing his sword, without waiting till he have drawn it, if they lock the door upon him, or put him into a room that has bars before the window, or if they come upon him the same night, while the evidences of his guilt are about him and all fresh, instead of waiting on the outside of the door all night till he have destroyed them. (footnote) In any of these cases, as well as a thousand others that might be mentioned, can there be any doubts about the oppression? but by Article II. of this same code an article which has alat-ready been established and placed out of the reach of cavil, the right of resistance to oppression is among the number of those rights which nature hath given, and which it is not in the power of man to take away.
ARTICLE VIII.
ARTICLE VIII.
The law ought not to establish any other punishments than such as are strictly and evidently necessary; and no one can be punished but in virtue of a law established and promulgated before the commission of the offence, and applied in a legal manner.
Sentence 1. The law ought not to establish any other punishments than such as are strictly and evidently necessary.
The instruction administered by this clause not great so far, however, is well, that the purpose declared in this instrument is departed from, and nothing but instruction is here attempted to be given; and which succeeding legislators may be governed by or not as they think fit. It is well, indeed, that penal laws not conforming to this condition are not included in the sentence of nullity so liberally dealt out on other occasions, since, if they were, it would be difficult enough to find a penal law anywhere that would stand the test, from whatever sourcepure or impure, democratical, aristocratical, or monarchical-it were derived.
No rules of any tolerable degree of particularity and precision have ever yet been laid down for adjusting either the quantum or the quality of punishments-none such at least could have been in the contemplation of the framers of this code: and supposing such rules laid down, and framed with the utmost degree of particularity and precision of which the nature of the subject is susceptible, it would still be seen in most instances, if not in every instance, that the offence admitted optionally of a considerable variety of punishments, of which no one could be made to appear to be strictly and evidently necessary, to the exclusion of the rest.
As a mere memento, then, of what is fit to be attended to, a clause to this effect may be very well; but as an instruction, calculated to point out in what manner what is so fit to be attended to may be accomplished, nothing can be more trifling or uninstructive:- it is even erroneous and fallacious, since it assumes, and that by necessary implication, that it is possible, in the case of every offence, to find a punishment of which the strict necessity is capable of being made evident,-which is not true. Unfortunately, the existence of a system of punishments of which the absolute necessity is capable of being made evident, with reference to the offences to which they are respectively annexed, is not altogether so clear as the existence of the article by which succeeding legislators are sent in quest of such a system by these their masters and preceptors. One thing is but too evident, that the attention bestowed by the penner of this article, on the subject on which he gives the law to posterity so much at his ease, was anything but strict. It was the Utopia created by the small talk of Paris that was dancing before his eyes, and not the elementary parts of the subject-matter he was treating of the list of possible punishments, confronted with the list of possible offences. He who writes these observations has bestowed a closer and more minute inquiry into the subject than anybody who has been before him -he has laid down a set of rules, by which, as he conceives, the disproportion but too generally prevalent between punishments and offences, may be reduced within bounds ly more narrow than it occupies anywhere at present in any existing code of laws-and what he would undertake for is, not to make evident any such list of strictly necessary punishments, but the impossibility of its istence.
Sentence 2. No one can be punished but in virtue of a law established and promulgated before the commission of the offence, and applied in a legal manner.
This clause — if instead of the insurrection-inviting word can, the word ought had been employed, as in the preceding clause of this same article. would, as far as it goes, have been well enough. As it is, while on the one hand it not only tends to bring in the everlasting danger of insurrection, on the other hand, it leaves a considerable part of the danger against which it is levelled, uncovered and unprovided against.
Numerous are the occasions on which sufferings as great as anv that, being inflicted with a view to punishment, go under the denomination of punishment, may be inflicted without any such view. These cases a legislator who understood his business would have collected and given notice of, for the purpose of marking out the boundaries and confines of the instruction in question, and saving it from misapplication. Laying an embargo, for instance, is a species of confinement, and, were a man subjected to it with a view to punishment, might in many cases be a very severe punishment: yet if the providence of the legislator happen not to have provided a general law empowering the executive authority to lay an embargo in certain cases, the passing of a special law for that purpose, after the incident which calls for it has taken place, may be a very justifiable, and even necessary measure; for instance, to prevent intelligence from being communicated to a power watching the moment to commence hostilities, or to prevent articles of subsistence or instruments of defence, of which there is a deficiency in the country, from being carried out of it.
Banishment must, in a certain sense, be admitted to be equally penal, whether inflicted for the purpose of punishment, or only by way of precaution, — for the purpose of prevention, and without any view to punishment. Will it be said, that there is no case in which the supreme government of a country ought to be trusted with the power of removing out of it, not even for a time, any persons, not even foreigners, from whom it may see reason to apprehend enterprises injurious to its peace? So in the case of imprisonment, which, though in some instances it may be a severer, may in others be a less severe infliction than banishment. Even death, a sufering which, if inflicted with a view to punishment, is the very extremity of punishment, and which, according to my own conception of the matter, neither need nor ought to be inflicted in any instance for the purpose of punishment, may, in some certain instances perhaps, be highly necessary to be inflicted without any view to punishment — for example, to prevent the diffusion of the plague.
Thus it is, that while the clause passing censure on ex post facto penal laws (a censure in itself, and, while it confines itself to the cases strictly within its declared subject, so highly reasonable) is thus exhibited with the insurrection-inciting can in it, and without the explanations necessary, as we have seen, to guard it against misapplication, the country is exposed to two opposite dangers: one, that an infliction necessary for the purpose of prevention should be resisted and risen up against by individuals, under the notion of its being included in the prohibition given by this clause; the other, that the measure, how necessary soever, should be abstained from by the legislature through apprehension of such resistance.
As to the concluding epithet, and legally applied, it might have been spared without any great injury to the sense. If the law referred to in justification of an act of power have not been legally applied in the exercise of that act of power, the act has not been exercised in virtue of that law.
ARTICLE IX.
Every individual being presumed innocent until he have been declared guilty, if it be judged necessary to arrest him, every act of rigour which is not necessary to the making sure of his person, ought to be severely inhibited by the law.
This article being free from the insurrection-exciting particle, and confining itself to the office of simple instruction, is so far innocent: the object of it is laudable, though the purport of it might have been expressed with more precision.
The maxim it opens with, though of the most consummate triviality, is not the more conformable to reason and utility, and is particularly repugnant to the regulation in support and justification of which it is adduced. That every man ought to be presumed innocent (for "is presumed innocent" is nonsense,) until he have been declared (that is, adjudged) guilty, is very well so long as no accusation has been preferred against him, or rather, so long as neither that nor any other circumstance appears to afford reason for suspecting the contrary but very irrational, after that ground for supposing he may have been guilty has been brought to light.
The maxim is particularly misapplied and absurd when applied to the case where it has been judged proper (on sufficient grounds we are to suppose) to put him under arrest, to deprive him of his power of locomotion. Suppose him innocent, and the defalcation made from his liberty is injurious and unwarrantable. The plain truth of the matter is, that the only rational ground for empowering a man to be arrested in such a case, is its not being yet known whether he be innocent or guilty: suppose him guilty, he ought to be punished - suppose him innocent, he ought not to be touched. But plain unsophisticated truth and common sense do not answer the purpose of poetry or rhetoric; and it is from poetry and rhetoric that these tutors of mankind and governors of futurity take their law. A clap from the galleries is their object, not the welfare of the state.
As for the expression, ought to be severely repressed (by punishment I suppose,) it is as well calculated to inflame (the general purpose of this effusion of matchless wisdom) as it is ill calculated to instruct. A rather more simple and instructive way of stating it would have been to say in relation to every such exercise of rigour which goes beyond what appears necessary to the purpose in questionthat of making sure of the person that not coming within the ground of justification taken from that source it remains upon the footing of an offence of that description of delinquency whatever it be of an injury of the species in question whatever it may be The satisfaction and punishment annexed to it will come of course to be of the same nature and extent as for an injury of the same nature and extent having no such circumstance to give occasion to it. Should the punishment in such case be greater or less than the punishment for the same injury would be if altogether divested of the justification which covers the remainder of the unpleasant treatment? Should the punishment of the minister of justice exceeding his authority, be greater or less than that of the uncommissioned individual doing the same mischief without any authority? On some accounts (as would be found upon proper inquiry,) it should be greater: on other accounts, not so great. But these are points of minute detail, which might surely as well have been left to the determination of those who would have had time to give them due examination, as determined upon at random by those who had no such time. The words of this article seem to intimate, that the punishment for the abuse of power by the minister of justice ought to be the greater of the two. But why so? You know better where to meet with the minister of justice than with an offending individual taken at large:— the officer has more to lose than the individual:— and the greater the assurance you have that a delinquent, in case of accusation, will be forthcoming, in readiness to afford satisfaction in the event of his being sentenced to afford it, the less the alarm which his delinquency inspires.
ARTICLE X ARTICLE X No one ought to be molested [meaning, probably, by government] for his opinions, even in matters of religion, provided that the manisfestation of them does not disturb [better expressed perhaps by saying, except in as as the manifestation of them disturb, or rather tends to the disturbance of] the public order established by the law.
Liberty of publication with regard to opinions, under certain exceptions, is a liberty which it would be highly proper and fit to establish, but which would receive but a very precarious establishment from an article thus worded. Disturb the public order? — what does that mean? Louis XIV. need not have hesitated about receiving an article thus worded into his code. The public order of things in this behalf, was an order in virtue of which the exercise of every religion but the Catholic, according to his edition of it, was proscribed. A law is enacted, forbidding men to express a particular opinion, or set of opinions, relative to a particular point in religion: forbidding men to express any of those opinions, in the expression of which the Lutheran doctrine, for example, or the Calvinistic doctrine, or the Church of England doctrine consists:- in a prohibition to this effect, consists the public order established by the law. Spite of this, a man manifests an opinion of the number of those which thus stand prohibited as belonging to the religion thus proscribed. The act by which this opinion is manifested, is it not an act of disturbance with relation to the public order thus established? Extraordinary indeed must be the assurance of him who could take upon him to answer in the negative.
Thus nugatory, thus flimsy, is this buckler of rights and liberties, in one of the few instances in which any attempt is made to apply it to a good purpose.
What should it have done, then? To this question an answer is scarcely within the province of this paper: the proposition with which I set out is, not that the Declaration of Rights should have been worded differently, but that nothing under any such name, or with any such design, should have been attempted.
A word or two, however, may be given as a work of supererogation:- that opinions of all sorts might be manifested without fear of punishment; that no publication should be deemed to subject a man to punishment on account of any opinions it may be found to contain, considered as mere opinions; but at the same time, that the plea of manifesting religious opinions, or the practising certain acts supposed to be enjoined or recommended in virtue of certain religious opinions as proper or necessary to be practised, should not operate as a justification for either exercising, or prompting men to exercise, any act which the legislature, without any view or reference to religion, has already thought fit, or may hereafter think fit, to insert into the catalogue of prohibited acts or offences.
To instance two species of delinquency, one of the most serious, the other of the slightest nature-acts tending to the violent subversion of the government by force acts tending to the obstruction of the passage in the streets-An opinion that has been supposed by some to belong to the Christian religion, is, that every form of government but the monarchical is unlawful: an opinion that has been supposed by some to belong to the Christian religion-by some at least of those that adhere to that branch of the Christian religion which is termed the Roman Catholic — is, that it is a duty, or at least a merit, to join in processions of a certain description, to be performed on certain occasions.
What, then, is the true sense of the clause in question, in relation to these two cases? What ought to be the conduct of a government that is neither monarchical nor Catholic, with reference to the respective manifestation of these two opinions?
First, as to the opinion relative to the unlawfulness of a government not monarchical. The falsity or erroneousness which the members of such a government could not but attribute in their own minds to such an opinion, is a consideration which, according to the spirit and intent of the provision in question, would not be sufficient to authorize their using penal or other coercive measures for the purpose of preventing the manifestation of them. At the same time, should such manifestation either have already had the effect of engaging individuals in any attempt to effect a violent subversion of the government by force, or appear to have produced a near probability of any such attempt in such case, the engagement to permit the free manifestation of opinions in general, and of religious opinions in particular, is not to be understood to preclude the government from restraining the manifestation of the opinion in question, in every such way as it may deem likely to promote or facilitate any such attempt.