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e no longer Phally been neglech of example, of
It is singular, that the deeds of which we have been spectators. and victims, should not have deterred the advocates of such a system. It is not for want of obedience in the subordinate agents of our different tyrannies, that France has suffered so much from them. On the contrary, all have been too submissive; and if some unhappy persons have escaped, if some acts of injustice have been mitigated, if the government of Robespierre has been overturned, if that of Buonaparte no longer oppresses France, it is because the doctrine of obedience has occasionally been neglected. .
But the possessors of power, convinced, in spite of example, of the eternal tenure of their authority, only seek for pliant instruments, who will obey them blindly; they see nothing in human reason, but an importunate motive to resistance.
Whenever the soldiers, like blind instruments, have shot their fellow-citizens, so often has it been inculcated, that the army should be purely and passively obedient. Whenever the agents of administration have displayed a headlong zeal to imprison or arrest their subjects, or drag them before their bloody tribunals, it has been uniformly alleged, that deliberation was the scourge, and implicit zeal the vital spring, of every administration.
It was not remembered, that instruments which are too passive, may be guided by any hand against their first employers ; and that the intelligence which prompts Man to reflection, also enables him to distinguish right from violence, and the legitimate governor from the usurper. · Passive obedience, thank Heaven! as it is recommended by its partisans, is quite impossible. Even in military discipline, this passive obedience, in despite of sophistry, is limited by circumstances. It is in vain to say, that armies should be machines, and that the soldier knows no principle but the order of his corporal. Ought a soldier to fire at his captain, if so ordered by a drunken corporal ? He may consider whether his corporal be drunk or 80ber; and that his captain's authority is higher than that of the corporal. A soldier then may exert his own intelligence and reflection. Should a captain and his company obey an order from his colonel to arrest the War Minister? A captain, therefore, may use his own discretion. Ought a colonel, at the order of the War Minister, to assail the sacred person of the King ? Intelligence and
reflexion, therefore, may enter into the duty of a colonel. But of late, have we not ardently, and most justly, commended the officer who, when he had received an order to explode a powder magazine in the centre of Paris, hearkened to his own judgment and conscience, which told him that it was his duty to disobey ?
Y LO 4180bey?. There are circumstances, then, when reflexion becomes a duty; and when the passive and blind instrument is punishable, and ought to be punished.
. As a general principle, let discipline be the basis of all military organization; and let punctuality, in the execution of orders, be the spring of every administration. This I admit; but the rule has exceptions. Its limits cannot be strictly defined, because it is impossible to foresee all the cases that may occur; but they are easily felt. Every man's common sense suggests them. He is of necessity the only judge; and he decides at his own risk. If he is mistaken, he pays the penalty. But Man can never be brought to
It may be well to observe, that we have laws in force, which denounce the agents of illegal orders, without excepting the soldiery, and which even distinctly include them. The theory of passive obedience is thus destroyed, because soldiers are compelled to reflect, whether the orders of their superiors be consistent with the law. The law of the 18th Germinal, year vr. of which the principal clauses, not having been revoked, must be consequently sanctioned by the 68th article of our present charter, purports in Art. 165, that “If any officer, sub-officer, or soldier, shall issue, sign, execute, or cause to be executed, an order for the arrest of an individual, or shall personally arrest him, unless accordingly to law, or flagrante delictu, in order to surrender him forthwith to the police, such officer shall be legally prosecuted, and punished as guilty of the crime of false imprisonment." The soldier and officer, then, must consider, before obeying, whether the individual whom they are to arrest, is at the time flagrante delictu, or in any way acting against law. By Art. 166, the same punishment shall be inflicted for the detention of an individual in any place not legally and publicly appointed as a guard-house, place of trial, or prison. The soldier and officer must deliberate accordingly. Art. 169, provides that, excepting in cases fiagrante delictu, as determined by law, the national guard shall not arrest any individual, but in virtue of a writ of cognizance, or arrest, according to law, whether by an order for personal detention, for accusation, or by recorded judicial sentence. The soldier and officer, therefore, before obeying, must, deliberate accordingly. Here are certainly instances enough, wherein the military force, far from being passively obedient, is required to understand the law; and to do this, they must employ their reason. . .. ...
waive all reflexion, and to resign the intelligence that nature gave him for his safe-conduct, and from which no profession can estrange him.
From these principles, I might infer very important general consequences, concerning the obedience that citizens owe to the laws themselves; but I will not quit my subject.
I grant that the chance of punishment for obedience may sometimes disagreeably embarrass the subordinate agents. It would be more convenient for them, to be subservient automatons, or sagacious dogs. But in all human affairs there is uncertainty. To free himself from all uncertainty, Man should cease to be a moral agent. Reasoning is but a comparison of arguments, probabilities, and chances. Comparison implies the possibility of error; and, therefore, uncertainty. But in a well-constituted government, there is a remedy to this uncertainty, which not only repairs the mistakes of individual judgment, but which secures men from the fatal consequences of these errors, when involving no crime. This remedy, the advantage of which onght to be secured to the agents of administration, as to other citizens, is the trial by jury. In all questions of morality, and of a complicated nature, trial by jury is indispensable. The liberty of the press, for instance, can never exist, without trial by jury. Juries alone can determine, if such a book, in such circumstances, be criminal or not. Written law cannot discriminate all the shades of responsibility. The common sense of mankind must decide on them. But juries are the representatives of popular opinion. Thus, too, the written law is very inadequate to determine whether a minister's subordinate agent, who has given or refused his assistance, has acted well or ill. To common sense we still must appeal, and juries are its only interpreters. · Let it not be feared that the agents of authority, in their reliance on the favor of juries, will be too apt to disobey. Their natural inclination, urged moreover by interest and self-love, is towards obedience. The favors of administration are thus purchased. Government has so many secret expedients to indemuify them for the consequence of their zeal! The inconvenience of the opposite check would be that of inefficacy; but this is no reason for withdrawing it. Juries themselves will not urge too far the principle of independence in the agents of power. The love of order is inherent in mankind; and in those who are charged with a commission, this sentiment is deepened by the feeling of self-importance and respect which ensues from their rigid and unswerving fidelity. The good sense of juries will readily conceive that subordination is in general necessary; and their decisions will for the most part encourage it.
But I anticipate an objection. It will be said that I make juries arbitrary; but you make ministers so. It is impossible, I say again to regulate all by written law, to draw up a technical formula, conprising all possible results in the reciprocal relations of society, só as to absolve all future generations from any use of their own reaa son and reflexion. But if, notwithstanding every caution, there will still be much room for discretional judgment in human life, is it not better, I ask, that the exercise of the power which this discretion requires should be committed to men who can only employ it on given occasions, who are uncorrupted and unblinded by the habit of command, and who will be more attached to liberty and good order, than those men could be who, did they possess the authority in question, would be constantly interested to maintain their individual privileges? · Once more, you cannot support your principle of passive obedience, without modification. It would endanger all that you wish to preserve : it would threaten, not only liberty, but government itself; not those who should obey, but those who command; not only the people, but the sovereign. Neither can you point out with accuracy every occasion where obedience degenerates from duty into crime. Will you say, that every order, at variance with the established constitution, should not be executed! You are inevitably led on to consider what may be hostile to the constitution. Freedom of judgment is to you the enchanted palace, which drew : back into its precincts the bewildered steps of those who endeavoured to escape from it. But who shall be entrusted with this judgment ? It will hardly be, I presume, that government whose order you would discuss. You must, therefore, conclude on some method of deciding in every circumstance; and the best method is, to entrust the right of decision to the most impartial men, and those who are the most identified with private and public interests. Of these men juries are composed.
The responsibility of agents (to use this word once more in its adventitious and false acceptation) the responsibility of agents is recognised beyond dispute in England, from the lowest station to the highest. It is proved by a very singular fact, to which I refer the more willingly, because, as the man, who availed himself of the principle of responsibility, was wrong in the particular question, the acknowledgment of the general principle was rendered more manifest.
At the time of the dispute concerning Mr. Wilkes's election, one of the London magistrates, thinking that, in one of its resolutions, the House of Commons had exceeded its powers, declared that, since there was no longer a legitimate House of Commons in England, the payment of the taxes levied thenceforward in virtue of the regulations of an escheated authority, was no longer imperative : he consequently refused to pay any of the taxes, suffered his property to be seized by the collector, and afterwards prosecuted this man for illegal violence. The question was brought before the courts. It was not disputed, that the collector was punishable, if the authority under which he acted was not legal; and the Chief Justice, Lord Mansfield, merely undertook to prove to the jury, that the House of Commons had not lost its legality; whence it follows, that if the collector had been convicted of executing orders in any way illegal, he would have been punished, although he was only a subordinate agent to the minister of finance, and removable by that minister.
Chap. V. On some Opinions maintained in the Chamber of
A disposition has been manifested in our Chamber of Deputies, to permit only a civil process against ministers and their agents, when guilty of injustice to individuals; and it has even been held, that this civil process can only take place in virtue of a decision in the council of minişters. Accordingly to the principles that I have explained, and by which acts of this nature are but private misdemeanours, the description and degree of the fault, I conceive, may influence the kind of suit which it will justify; and when it par