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care of these interests must be committed to those who can attend to them in the regular courts, who are exclusively entrusted with the examination of injuries and crimes; and whose special duty can only be discharged by themselves.
In these refiexions, I do not distinguish between banishinent, and arrest or arbitrary imprisonment; for it is an error to consider exile as a milder punishment. We are deceived by the traditions of the ancient monarchy. The banishment of some illustrious men deceives us. Our fancy pictures M. De Choiseuil, surrounded by generous and devoted friends, and banishment seems to us a triumphal procession. But let us descend to a lower rank, and advert to other periods. In this class of life, we shall see banishment tearing the father from his children, the merchant from his business; we shall see parents compelled to suspend the education of their family, or to confide it to mercenary hands; friends will be divided; old age, interdicted from habitual affections; the industrious man will be disturbed in his plans, and talent in its labors. We shall see exile conjoined with poverty, privation on a foreign soil, the wants of nature scantily supplied, and the slightest enjoyment impossible. We shall see exile associated with dishonor, infecting its victims with suspicion, surrounding them with a climate of misery, alternately exposed to the cold reserve of the stranger, or the intemperate insolence of an upstart agent. We shall see exile withering all noble affections in their source; the banished man deserted by the friend who had accompanied him, and forgetfulness detaching from him those other friends, whose images were in the place of his absent country: selfishness will excuse itself by the adoption of calumny, while the forsaken victim strives in vain to cheer his lonely spirit with some faint beam of happiness reflected from the past. And the power of inflicting this punishment, without judicial inquiry, without legal judgment, without public proof, is to be entrusted to government, or rather to the numberless agents who are sufficiently dexterous to obtain its orders! and the right of banishing, the frightful privilege of evil, is compared with the power of amnesty, with the sublime prerogative of imparting happiness ! Because the King may be the saviour of an extenuable culprit, he is to be made the scourge of innocence! The countenance of the King, said an English statesman, should be the herald of safety and joy to all bis subjects; and is it in the King's name that his citizens should be oppressed with illegal and therefore unjust severity?' . All the constitutions of the earth, written or unwritten, have presumed the sovereign to be more indulgent than the law, and have therefore augmented his power; and we would now render this power the instrument of desolation, tyranny, and terror.
What matters it to us, that the malignant democracy of some petty republics of Greece formerly sanctioned the popular injus. tice of the ostracism? Can the examples of other times, incompatible with our own, justify modern proscriptions, and shall we, like Buonaparte, collect the iniquities of every age, in order to amalgamate and employ them??
'I am far from blaming the intentions of many of those who think that there is no danger in entrusting government with some degree of arbitrary control over personal liberty. There are among them men whom I love and esteem, and who combine dignity of character with considerable information. But their opinion on this subject, I conceive to be erroneous. I cannot confide in the palliatives they offer; and the coincidence of their opinion with that of a party which dislikes both liberty and the constitution, ought, I dare assert, to be more displeasing to them, than the refutation I have submitted.
? In thus reprobating the revival, under another name, of those lettres de cachet, which, after being the bane of private safety, caused the downfall of the monarchy, I find myself supported by our most clear and formal enactments. According to the text of articles 11, 44, 47, 48, 49, and 50, of the penal code, no authority can banish a citizen, or detain him from his residence. I quote these articles at length, in order to prove my assertion by their general tenor.-Art. 11. The special control of the general police, fine, &c. are punishments inflicted both in criminal matters and by the regulations of discipline.--Art. 44. The result of a special responsibility to the general police, will be to give, both to government and to the interested party, the right of exacting, either from the individual who is liable to this restriction, after having undergone his punishment, or from his father or mother, tutor or guardian, if he is under age, a security for good conduct, to the amount of the sum fixed by his sentence: Every person may be allowed to give this security; and in default of it, the party remains in the power of government, which has the right of directing either the removal of the individual from a particular place, or his residence at a particular spot of one of the departments of the empire.- Art. 47. Those culprits who
· Public opinion, you will say, is sufficient to restrain the agents of government within equitable limits. But what are the organs of that opinion, in a state where arbitrary power is allowed ? It is impotent in all, not only in its chosen interpreters, but in the representatives that are supplied by law. You carry us round, then, either knowingly or unwittingly, in a vicious circle of argument.
are sentenced to coercive labor and to seclusion, shall, after having undergone their punishment, be subject during life to the superintendence of the general police.--Art. 48. Criminals condemned to banishment shall be subject to the same control, for a period equal to the duration of the punishment they have undergone.—Art. 49. Also shall be subject to the same superintendence, those who shall have been sentenced for crimes or misdemeanors that respect the internal or external safety of the state.-Art. 50. Excepting the cases determined by the preceding articles, those condemned shall not be subject to the superintendence of the general police, unless when the law shall have particularly directed it. .
We see then, first, that the power attributed to government of ordering either the removal of an individual from such and such a place, or his residence at a place appointed, is always derived from the commission to the high police.--2dly, That this power is only granted to government, in dem fault of a security which the individual is allowed to supply, and which consequently the government cannot refuse.-3dly, That this reference to the police only ensues from a punishment appointed by law.--4thly, That it only applies to those who are condemned.-5thly, That, excepting in cases determined by this chapter of the code, no one can be subject to the inspection of the police, nor consequently subject to the command of government, to depart from such a place, or reside in some other, unless by a particular direction of the law to that purport. Far from there being any exception for those misdemeanors which concern the safety of the state, the persons accused of these misdemeanors cannot, any more than others, be subject to the police, until they have been sentenced, since it is provided that they shall be liable to this superintendence, after they have been condemned.
Thus, as often as Buonaparte usurped, as he continually did, the right of banishing an individual from his chosen residence, or of confining him to another that he disliked, 1st, If this individual had not been sentenced to a punishment which, according to law, required the subsequent inspection of the police,--2d, If he had not refused, or was not unable, to give security for his good conduct; in these instances, Buonaparte trampled on the laws that he had given. Even under Buonaparte, no minister had the right of passing a sentence of banishment, no civil or military officer was entitled to execute such an order, no citizen was bound to obey it, and all laws that relate to this object, are in their full force.
You pretend to restrain arbitrary power by opinion, and it is the infallible result of tyranny, that opinion is stifled..
Nevertheless, I agree, that opinion exists, even when it is suppressed: it is but stamped more inly on the heart. It glows, it flames there ; and if oppression should continue, it is vented in conspiracy, or open insurrection.
Are these the remedies ye propose--ye, who would fetter the liberty of the innocent, lest they should become guilty ?
Some incoherent talk of a discontented person, without influence or authority, the meeting of two or three citizens, who join in vain murmurs, or, if you will, in chimerical projects, these trifles, you think, call not only for the agency of the law, which would always be sufficient and legitimate, but for its suspension, which would always be the reverse: and the errors of government, divided among two hundred thousand agents, the evil that flows from these errors, the calamities that they may cause, by private injuries and the provocation of resistance, do not appear to you sufficiently important to be guarded against! How singular is that prudence, which restrains the feeble, and licenses the outrage of the strong !
Is it the union of two scourges that secures you? You submit to tyranny, because it is opposed by discontent. But I fear both. I fear the one, on account of the citizens ; and the other, for the 'sake of the government; and it is because I, above all others, wish for this guardian authority; because, above all others, I should be inclined to defend that government, under which, after twenty years of dissension and twelve years of tyranny, we have recovered the right of thinking, speaking, and acting like freemen; because I love and venerate that authority, which has restored to us, as it were, the very functions of physical life, the calm of sleep, the peace of our homes, the disposal of our property, the society of our children, the safety of our persons, and above all, the free use of our most noble faculties; for these reasons, would I preserve it from a deplorable alliance with tyranny.
1 see that arbitrary power has been fatal to all the governments who have employed it. I see that the hatred of arbitrary power, even when no longer exerted, caused the revolution. I see that the Directory were ruined, by suspending the laws, by violating their forms, by banishing, by transporting, by arresting the citizens, according to the caprice of their own mistrust, or the suggestions of personal dislike. I see that the Colossus, who had terrified the world, fell from his throne, not by the efforts of a coalition which had been a hundred times vanquished, and would have been easily repelled by a generous nation, but because he had detached himself from that nation, by governing it without plan, without laws, or moral restraint; by scattering terror, enslaving thought, by annulling decrees, by proscribing the judges, by crowding his dungeons with captives, and filling our provinces with exiles.
The nature of the present government, the epoch when it is restored, and its relative circumstances, are the best calculated to preserve it from this fatal rock. It unites the information of our days with the authority of ages, and the sanction of legitimacy. We are fatigued by our useless struggles. We are enlightened by our long and painful experience. We have been decimated by anarchy; and withered by despotism. Covered with the scars of our wounds, and the impression of our fetters, we neither wish to be replunged into anarchy, nor bowed down by slavery. The law alone can give us happiness ; liberty alone can give us repose. All that is not free and legal, reminds us both of the traitors who slaughtered us, and the tyrant who oppressed us. .
It would be vain to represent these principles, as a malignant opposition to a legitimate authority. We do not oppose goverument, by hating arbitrary power; for that is itself a privation of government. All arbitrary power is an anarchy.
It is truly singular that men who have been subservient to every tyranny in succession, should reproach us with stubborn opposition, because we assented to no tyranny. · Yes, when oppression triumphed in the name of the Republic, some men ranged themselves in the opposition. When an Usurper, the beir of this overthrown Republic, substituted his insolent will for that of the suppressed factions, the opposition of this little band was still continued. It was redoubled, when this Usurper girt his brows with a bloody crown, derived neither from the choice of the nation, nor from the tacit compact, perpetuated through ages by the happy subjects of a revered dynasty.
The same men now promulgate anew the principles that they have always professed; but they are no longer in oppositiov; for