You will have found me diffuse, Sir; but I had to be so, and the subjects that I had to treat are not to be discussed by means of epigrams. Besides, these subjects took me less far away than it seems from the one that interests you. In speaking about myself I was thinking about you; and your question depends so much on mine that the one is already resolved along with the other, there is nothing left for me but to draw the consequence. Everywhere that innocence is not in safety, nothing can be: everywhere that the Laws are violated with impunity, there is no longer any liberty.
Nevertheless since one can separate the interest of a private individual from that of the public, your ideas on this point are still uncertain; you persist in wanting me to aid you in fixing them. You ask what the present state of your Republic is, and what its Citizens ought to do? It is easier to respond to the first question than to the other.
That first question surely perplexes you less by itself than by the contradictory solutions that are given to it around you. Some People of very good sense tell you: we are the most free of all peoples, and other People of very good sense tell you: we are living under the harshest slavery. Which are right, do you ask me? All, Sir; but in different regards: a very simple distinction reconciles them. Nothing is more free than your legitimate state; nothing is more servile than your actual state.
Your laws derive their authority only from you; you acknowledge only the ones that you make; you pay only the taxes that you impose; you elect the Leaders who govern you; they have the right to judge you only by means of prescribed forms. In the general Council you are Legislators, Sovereigns, independent of all human power; you ratify treaties, you decide peace and war; your Magistrates themselves refer to you as Magnificent, very honored and sovereign Lords.49 There is your liberty: here is your servitude.
The body charged with the execution of your Laws is their interpreter and supreme arbiter; it makes them speak as it pleases; it can make them fall silent; it can even violate them without your being able to set them to rights; it is above the Laws.
The Leaders whom you elect have, independently of your choice, other powers that they do not derive from you, and that they extend at the expense of those they do so derive. Limited in your elections to a small number of men, all having the same principles and all animated by the same interest, with a great show you make a choice of little importance. What would matter to you in this business would be to be able to reject all of the ones from among whom they force you to choose. In an election free in appearance you are so obstructed from all sides that you cannot even elect a first Syndic nor a Syndic of the Guard: the Leader of the Republic and the Commandant of the Fortress are not of your choice.
If they do not have the right of imposing new taxes on you, you do not have that of rejecting the old ones. The finances of the State are on such a footing that without your cooperation they can suffice for everything. Thus they never need to show you consideration in that purpose, and your rights in that regard are reduced to being exempt in part and to being necessary never.
The procedures they ought to follow in judging you are prescribed; but when the Council does not want to follow them no one can constrain it to, nor oblige it to set right the irregularities it commits. On this I am qualified to constitute a proof, and you know whether I am the only one.
In the general Council your Sovereign power is enchained: you cannot act except when it pleases your Magistrates, nor speak except when they interrogate you. If they even want not to assemble the general Council at all, your authority, your existence is annihilated, without you being able to oppose them except with vain murmurs that they are in a condition to scorn.
In sum, if you are Sovereign Lords in the assembly, upon leaving there you are no longer anything. Four hours a year subordinate Sovereigns, you are subjects the rest of your life and abandoned without reserve to the discretion of someone else.
What happens to all Governments like yours, Gentlemen, has happened to you. At first the Legislative power and executive power that constitute sovereignty are not distinct. The Sovereign People wills by itself, and by itself it does what it wills. Soon the inconvenience of this cooperation of all in everything forces the Sovereign People to charge some of its members to execute its wills. These Officers, after having fulfilled their commission, account for it and return into the common equality. Little by little these commissions become frequent, finally permanent. Insensibly a body forms that always acts. A body that always acts cannot account for each act: it no longer accounts for any but the principal ones; soon it reaches the point of accounting for none of them. The more active the power that acts is, the more it enervates the power that wills. Yesterday’s will is deemed to be today’s also; whereas yesterday’s action does not dispense from acting today. Finally the inaction of the power that wills subjects it to the power that executes; little by little the latter renders its actions independent, soon its wills; instead of acting for the power that wills, it acts upon it. Then there remains in the State only an acting power, that is the executive. The executive power is only force, and where force alone reigns the State is dissolved. There, Sir, is how all democratic States perish in the end.
Look through the annals of yours, since the time in which your Syndics, simple procurators established by the Community in order to attend to this or that piece of business, accounted to it for their Commission with hats off, and instantly returned into the order of private individuals, up to the one in which these same Syndics, disdaining the rights of Leaders and of Judges, which they hold from their election, prefer over them the arbitrary power of a body whose members are not elected by the Community, and that establishes itself above it contrary to the Laws: follow the progress that separates these two terms, you will know at which point you are and by what degrees you arrived there.
Two centuries ago a Political Thinker could have foreseen what has happened to you. He would have said; the Institution that you are forming is good for the present, and bad for the future; it is good for establishing public liberty, bad for preserving it, and what causes your safety now will be the substance of your chains in a little while. These three bodies,50 which are so interdependent that the activity of the largest depends on the smallest, are in such an equilibrium that the action of the largest is necessary and that the Legislation cannot do without the Legislator. But once the establishment is done, the body that formed it, lacking power to maintain it, will have to fall into ruin, and it will be your Laws themselves that will cause your destruction. There precisely is what has happened to you. It is, aside from the disproportion, the fall of the Polish Government by the opposite extreme. The constitution of the Republic of Poland is good only for a Government in which there is no longer anything to do.51 Yours, on the contrary, is good only as long as the legislative Body always acts.
Your Magistrates have labored at all times and without respite to make the supreme power of the general Council pass to the small Council through the gradation of the Two-Hundred; but their efforts have had different effects, in accordance with the manner in which they have gone about it. Almost all of their showy enterprises have failed, because then they have found some resistance, and because in a State such as yours, public resistance is always certain when it is founded upon the Laws.
The reason for this is obvious. In every State the Law speaks where the Sovereign speaks. Now in a Democracy where the People is Sovereign, when internal divisions suspend all forms and silence all authorities, only its authority remains, and then where the greater number stands, there resides Law and authority.
If the Citizens and Bourgeois united are not the Sovereign, the Councils without the Citizens and Bourgeois are still much less so, since they make up only the smallest part of it in quantity. As soon as it is a question of supreme authority, in Geneva everything returns to equality, in accordance with the terms of the Edict. Let all be content with the rank of Citizens and Bourgeois, without wanting to be preferred and to attribute to himself some authority and Lordship above the others. Outside of the general Council, there is no other Sovereign than the Law, but when the Law itself is being attacked by its Ministers, it is up to the Legislator to support it. That is why, everywhere a genuine liberty reigns, in clear-cut undertakings the People almost always has the advantage.
But it is not by means of clear-cut undertakings that your Magistrates have brought things to the point where they are; it is by means of moderate and continuous efforts, by means of almost intangible changes whose consequence you could not foresee, and which you could hardly even notice. It is not possible for the People to maintain itself ceaselessly on guard against everything that is done, and such vigilance would even turn into a reproach against it. They would accuse it of being restless and turbulent, always ready to become alarmed over nothings. But with time the Council knows how to make something out of these nothings about which one is silent. What is happening at present under your eyes is the proof of it.
All the authority of the Republic resides in the Syndics who are elected in the general Council. They take their oath there because it is their sole Superior, and they take it only in this Council, because it is to it alone that they owe an account of their conduct, of their fidelity in fulfilling the oath they have taken there. They swear to render good and upright justice; they are the only Magistrates who swear that in this assembly, because they are the only ones to whom this right is conferred by the Sovereign,R1 and who exercise it under its sole authority. In the public judgment of criminals they again swear only in front of the People, by standing upR2 and raising their staffs, that they have passed upright judgment, without hatred or favor, praying God to punish them if they have acted to the contrary; and formerly criminal sentences were rendered in their name alone, without any other Council than that of the Citizens being mentioned, as one sees from the sentence of Morelli transcribed above,52 and from that of Valentin Gentil reported in the opuscula of Calvin.
Now you feel very well that this exclusive power, received this way immediately from the People, obstructs the pretensions of the Council a great deal. Thus it is natural that in order to free itself from this dependence it tries to weaken the authority of the Syndics little by little, to blend into the Council the jurisdiction they have received, and to transmit imperceptibly to this permanent body, whose members the People does not elect, the great but transitory power of the Magistrates it does elect. Far from opposing this change, the Syndics themselves ought to favor it also; because they are Syndics only every four years, and because they can even not be Syndics; instead of which, whatever happens, they are Councilors their whole life, the Grabeau no longer being anything but an empty ceremony.R3
That having been gained, in the same way the election of the Syndics will become a ceremony entirely as vain as the holding of the general Councils already is, and the small Council will see very peacefully the exclusions or preferences for the Syndicate that the People can give to its members, when all that will no longer settle anything.
In order to succeed in that end, there is first a great means that the People cannot be acquainted with: that is the interior public order of the Council, the form of which—although it is regulated by the Edicts—it can direct at its willR4 having no supervisor who prevents it from doing so; for as to the Procurator general, one should count him for nothing in this.R5 But that is not yet enough, the People itself must be made accustomed to this transfer of jurisdiction. For that purpose one does not begin by setting up Tribunals composed only of Councilors for important cases, but first one sets up less noteworthy ones for rather uninteresting objects. One usually has these Tribunals presided over by a Syndic for whom one sometimes substitutes a former Syndic, then a Councilor, without anyone paying attention to it; one repeats this maneuver without commotion until it is an established practice; one transfers it to the criminal Tribunal. On a more important occasion one sets up a Tribunal for judging Citizens. Under favor of the Law of recusals one has this Tribunal presided over by a Councilor. Then the People opens its eyes and murmurs. One says to it, what are you complaining about? See the precedents; we are not innovating anything.
There, Sir, is the policy of your Magistrates. They make their innovations little by little, slowly without anyone seeing their consequence; and when one finally does notice it and one wants to remedy it, they cry out that one wants to innovate.
And see, in fact, without departing from this example, what they said on that occasion. They relied upon the Law of recusals: one replies to them; the fundamental Law of the State requires that Citizens be judged only by their Syndics. In the concurrence of these two Laws the latter ought to exclude the other; in order to observe both of them in such a case one ought rather to elect a Syndic ad actum. At this word, all is lost! A Syndic ad actum! Innovation! As for me, I do not see anything there that is as new as they say: if it is the word, it is made use of every year at the elections; and if it is the thing, it is still less new; since the first Syndics that the Town had were not Syndics except ad actum: When the Procurator general is recusable, isn’t another one necessary ad actum in order to perform his functions; and what else are the adjuncts drawn from the Two-Hundred to fill the Tribunals but Councilors ad actum? When a new abuse is introduced, to propose a new remedy for it is not to innovate; on the contrary, it is to seek to re-establish things on their former footing. But these Gentlemen do not like one to forage thus into the antiquities of their Town: It is only in those of Carthage and of Rome that they permit one to look for the explanation of your Laws.
I will not undertake to draw a parallel between those of their undertakings that have failed and those that have succeeded: even if there were compensation in the number, there would be none at all in the total effect. In an executed undertaking they gain force; in a failed undertaking they lose only time. You, on the contrary, who do not seek and cannot seek anything but to maintain your constitution, when you lose, your losses are real, and when you gain, you gain nothing. In a progression of this sort how can one hope to remain at the same point?
Of all the epochs offered for meditation by the instructive history of your Government, the most noteworthy by its cause and the most important by its effect is the one that produced the settlement of the Mediation. What initially gave rise to this celebrated epoch was an indiscreet undertaking, made inopportunely by your Magistrates. They had stealthily usurped the right of levying taxes. Before having solidified their power enough, they wanted to abuse this right. Instead of holding this blow back for the last, greed made them strike it before the others, and precisely after a commotion that had not completely subsided. This mistake drew on greater ones, hard to set right. How were such subtle political thinkers unaware of such a simple maxim as the one they contradicted on that occasion? In every country the people do not notice that one is attacking its liberty until one attacks its purse; which therefore skilful usurpers take great care not to do until all the rest is completed. They wanted to reverse this order and found themselves badly off for it.R6 The consequences of this affair produced the movements of 1734 and the frightful plot that was their fruit.
This was a second fault worse than the first. All the advantages of time are for them; they deprive themselves of them in sudden undertakings, and put the machine in a position to wind itself back up all at once: that is what very nearly happened in that business. The events that preceded the Mediation caused them to lose a century and produced another unfavorable effect for them. This was to teach Europe that that Bourgeoisie, which they had wanted to destroy and which they depicted as an ungovernable populace, knew how to maintain in its ascendancy the moderation that they had never known in theirs.
I shall not say whether this recourse to the Mediation ought to be counted as a third fault. This Mediation was or appeared offered; whether this offer was real or solicited is what I neither can nor want to penetrate: I know only that while you were running the greatest danger everything maintained silence, and that this silence was broken only when the danger passed over to the other party. Besides, I want all the less to impute it to your Magistrates that they implored the Mediation, since to dare even to speak about it is the greatest of crimes in their eyes.
A Citizen complaining about an illegal, unjust, and dishonorable imprisonment asked how one must go about having recourse to the guarantee. The Magistrate to whom he addressed himself dared to answer him that by itself this proposition deserved death. Now in regard to the Sovereign the crime would be as great and perhaps greater on the part of the Council than on the part of a simple private individual; and I do not see where one can find one of them worthy of death in a second recourse, rendered legitimate by the guarantee that was the effect of the first.
Once again, I do not undertake to discuss a question so delicate to treat and so difficult to resolve. I simply undertake to examine, concerning the object that occupies us, the state of your Government, formerly fixed by the settlement of the Plenipotentiaries, but now denatured by the new undertakings of your Magistrates. I am obliged to make a long circuit in order to reach my goal, but condescend to follow me, and we will find our bearings.
I do not at all have the temerity to wish to criticize this settlement; on the contrary, I admire its wisdom and I respect its impartiality. I believe I see the most upright intentions and the most judicious dispositions in it. When one knows how many things were against you in this critical moment, how many prejudices you had to vanquish, what influence to overcome, what false statements to destroy; when one recalls with what confidence your adversaries counted on crushing you by means of another’s hands, one can only honor the zeal, the consistency, and the talents of your defenders, the equity of the mediating Powers, and the integrity of the Plenipotentiaries who completed this work of peace.
Whatever one could say about it, the Edict of the Mediation has been the salvation of the Republic, and, if it is not transgressed, it will be its preservation. If this Work is not perfect in itself, it is relatively so; it is so as to times, to places, to circumstances; it is the best that could have suited you. It ought to be inviolable and sacred to you out of prudence, even if it were not so by necessity, and you shouldn’t remove a Line from it, even if you were the masters of annihilating it. Moreover, the very reason that renders it necessary, renders it necessary in its entirety. Since all the articles in a balance form equilibrium, a single article altered destroys it. The more useful the settlement is, the more harmful it would be mutilated this way. Nothing would be more dangerous than several articles taken separately and detached from the body they strengthen. It would be better that the edifice be razed than shaken. Let a single stone be removed from the vault, and you will be crushed under its ruins.
Nothing is easier to feel from the examination of the articles of which the Council avails itself and those it wants to evade. Remember, Sir, the spirit in which I am undertaking this examination. Far from advising you to tamper with the Edict of the Mediation, I wish to make you feel how important it is to you not to allow any attack to be made against it. If I appear to criticize some articles, it is to show what consequence there would be from removing those that rectify them. If I appear to propose expedients that are unrelated to it, it is to show the bad faith of those who find insurmountable difficulties where nothing is easier than to remove these difficulties. After this explanation I enter into the subject without scruple, well persuaded that I am speaking to a man too equitable to attribute to me a design entirely contrary to mine.
I feel very well that if I were addressing myself to foreigners in order to make myself understood it would be appropriate to begin with a tableau of your constitution; but this tableau is found already sketched sufficiently for them in the article Geneva of M. d’Alembert,53 and a more detailed exposition would be superfluous for you who are better acquainted with your political Laws than I am myself, or who at least have seen their operation from closer. Thus I limit myself to surveying the articles of the settlement that pertain to the present question and that can best provide the solution to it.
From the first I see your Government composed of five subordinate but independent orders, that is to say existing necessarily, of which none can derogate from the rights and attributes of another, and in these five orders I see the general Council comprehended. From that I see in each of the five a particular portion of the Government; but I do not see at all the constitutive Power that establishes them, that ties them together, and upon which they all depend: I do not see the Sovereign at all there. Now in every political State there must be a supreme Power, a center in which everything is related, a principle from which everything derives, a Sovereign who could do everything.
Imagine, Sir, that someone giving you an account of the constitution of England speaks to you this way. “The Government of Great Britain is composed of four Orders none of which can attack the rights and attributions of the others; namely, the King, the upper House, the lower House, and Parliament.” Wouldn’t you immediately say; you are mistaken: there are only three Orders. Parliament which, when the King is sitting in it, comprehends all of them, is not a fourth one: it is the whole; it is the unique and supreme power from which each draws its existence and its rights. Vested with the legislative authority, it can change even the fundamental Law by virtue of which each of these orders exists; it can do so, and moreover, it has done so.
This answer is correct, its application is clear; and nevertheless there is still this difference that the Parliament of England is sovereign only in virtue of the Law and only by attribution and deputation. Whereas the general Council of Geneva is neither established nor deputed by anyone; it is sovereign by its own authority: it is the living and fundamental Law that gives life and force to all the rest, and that knows no other rights than its own. The general Council is not an order in the State, it is the State itself.
The second article states that the Syndics cannot be selected except in the Council of the Twenty-Five. Now the Syndics are annual Magistrates whom the people elect and choose, not only to be its judges, but to be its Protectors at need against the perpetual members of the Councils, whom it did not choose.R7
The effect of this restriction depends on the difference there is between the authority of the members of the Council and that of the Syndics. For if the difference is not very great, and a Syndic does not esteem his annual authority as Syndic more than his perpetual authority as Councilor, this election will be almost indifferent to him; he will do little to obtain it and will do nothing to justify it. When all the members of the Council animated by the same spirit will follow the same maxims, the People, being unable to exclude anyone because of a conduct common to all, or to choose any Syndics who are not already Councilors, far from securing for itself Patrons against the attacks of the Council by means of this election, will do nothing but give to the Council new forces to oppress liberty.
Although the same choice ordinarily took place at the origin of the institution, as long as it was free it did not have the same consequence. When the People named the Councilors itself, or when it named them indirectly by means of the Syndics whom it had named, it was indifferent to it and even advantageous to choose its Syndics among the Councilors already of its choice,R8 and it was wise then to prefer leaders already versed in business: but a more important consideration ought to have prevailed over that one today. So true it is that the same practice has different effects from the changes of practices that relate to it, and that in such a case not to innovate is to innovate!
Article III of the Settlement is the most substantial. It treats of the general Council legitimately assembled: it treats of it in order to fix the rights and attributions that are proper to it, and it returns to it several that the inferior Councils had usurped. In totality these rights are great and fine, without a doubt; but first they are specified, and by that alone, limited; what one sets down excludes what one does not set down, and even the word limited is in the Article. Now it is of the essence of the Sovereign Power not to be able to be limited: it can do everything or it is nothing. Since it eminently contains all the active powers of the State and the State only exists by means of it, it cannot recognize any other rights than its own and those it communicates. Otherwise the possessors of these rights would not make up a part of the body politic; they would be foreigners by means of these rights that would not be in it, and lacking unity the moral person would disappear.
This very limitation is positive in what concerns Taxes. The Sovereign Council itself does not have the right to abolish those that were established before 1714. Thus in this respect it is subject to a superior power. What is this Power?
The Legislative power consists in two inseparable things: to make the Laws and to maintain them; that is to say, to have inspection over the executive power. There is no State in the world in which the Sovereign does not have this inspection. Without that, all connection, all subordination lacking between these two powers, the latter would not depend on the other at all; execution would have no necessary relation to the Laws; the Law would only be a word, and this word would signify nothing. The general Council always had this right of protection over its own work, it has always exercised it: Nevertheless it is not spoken of in this article, and if it were not made up for in another, by this very silence your State would be overthrown. This point is important and I shall return to it below.
If your rights are limited on one side in this Article, they are extended on the other side in it by paragraphs 3 and 4: but does that compensate for it? From the principles established in the Social Contract, one sees that, in spite of common opinion, alliances of State to State, declarations of War, and treaties of peace are not acts of sovereignty but of Government, and this sentiment is in conformity with the practice of the Nations who have best known the true principles of political Right. The external exercise of Power does not suit the People at all; the great maxims of State are not within its reach; on these it ought to rely on its leaders who, always more enlightened than it on this point, have hardly any interest in making treaties outside that are disadvantageous to the fatherland; order wishes it to leave all external show to them and attach itself solely to the solid. What matters essentially to each Citizen is the observation of the Laws inside, the property of belongings, the safety of private individuals. As long as everything goes well on these three points, let the Councils negotiate and treat with foreign affairs; it is not from there that your dangers most to be feared will come. It is around individuals that the rights of the People must be gathered together, and when one can attack it separately one always subjugates it. I could cite the wisdom of the Romans who, leaving to the Senate a great power outside, in the Town forced it to respect the lowest Citizen; but let’s not go so far to look for models. The Bourgeois of Neuchâtel have conducted themselves much more wisely under their Princes than you have under your Magistrates.R9 They make neither peace nor war, they do not ratify treaties; but they enjoy their franchises in safety; and, since the Law has not presumed that in a small Town a small number of honest Bourgeois would be scoundrels, inside their walls one does not reclaim,54 one is not even acquainted with the odious right of imprisoning without formalities. Among you one always allowed oneself to be seduced by appearances, and one has neglected the essential. One was too occupied with the general Council, and not enough with its members: it was necessary to think less about authority, and more about liberty. Let us return to the general Councils.
Aside from the Limitations of Article III, Articles V and VI offer very much stranger ones: a sovereign body that can neither form itself nor form any operation of itself, and absolutely subject, as to its activity and as to the matters it treats, to subordinate tribunals. Since these Tribunals will certainly not approve propositions that would be prejudicial to them in particular, if the interest of the State is found to be in conflict with theirs, the latter always has the preference, because the Legislator is not permitted to take cognizance of anything except what they approve.
As a result of subjecting everything to rule, one destroys the first of rules, which is justice and the public good. When will men feel that there is no disorder as fatal as the arbitrary power with which they think of remedying it? This power is itself the worst of all disorders: to use such a means to prevent them is to kill people so that they might not have a fever.
A large Host formed in tumult can do a lot of harm. In a numerous assembly, however regular it might be, if each person can say and propose what he wants, one loses much time in listening to foolishness and one can be in danger of acting foolishly. These are incontestable truths; but is it preventing the abuse in a reasonable manner to make this assembly depend solely on those who would like to destroy it, and to make it so that none can propose anything in it except those who have the greatest interest in harming it? For, Sir, isn’t that exactly the state of things, and is there a single Genevan who can doubt that, if the existence of the general Council depended completely on the small Council, the general Council would be suppressed forever?
Nevertheless that is the Body that alone convokes these assemblies and that alone proposes what it pleases in them: for as for the Two-Hundred it does nothing but repeat the orders of the small Council, and when the latter is once freed from the general Council the Two-Hundred will hardly encumber it; it will only follow with it the path that it traced out with you.
Now what do I have to fear from an inconvenient superior that I never need, that can show itself only when I allow it to, nor respond except when I interrogate it? When I have reduced it to this point can’t I regard myself as freed from it?
If one says that the Law of the State has prevented the abolition of the general Councils by making them necessary for the election of the Magistrates and for sanctioning new Edicts; I answer, as to the first point, that, all the force of the Government having passed from the hands of the Magistrates elected by the People into those of the small Council which it does not elect at all and from which are drawn the principal ones of these Magistrates, the election and assembly in which it occurs are nothing more than a vain formality without solidity; and that general Councils held for that sole object can be regarded as null. I also answer that from the turn things are taking it would even be easy to evade this Law without the course of business being stopped by it: for let us assume that, either by the rejection of all the subjects presented, or under other pretexts, the election of the Syndics does not take place, won’t the Council, into which their jurisdiction imperceptibly merges, exercise it in default of them, as it exercises it independently of them even now? Don’t they dare already to tell you that the small Council, even without the Syndics, is the Government? Thus without the Syndics the State will not be any less governed. And as to new Edicts, I answer that they will never be sufficiently necessary for this same Council not to find the means to take their place easily with the aid of the old ones and its usurpations. Anyone who sets himself above the old Laws can very well do without new ones.
All the measures have been taken so that your general Assemblies might never be necessary. Not only has the periodical Council, instituted or rather re-establishedR10 in the year 1707, only been held one time and only in order to abolish it,R11 but by paragraph 5 of the third Article of the settlement it has been provided for without you and forever at the expense of the administration. There is only the chimerical case of an unavoidable war in which the general Council absolutely must be convoked.
Thus the small Council would be able absolutely to suppress the general Councils without any other inconvenience than to draw upon itself some remonstrances that it is in a position to rebuff, or to stir up some vain murmuring that it can disdain without risk; for by articles VII, XXIII, XXIV, XXV, XLIII, every sort of resistance is forbidden in any case whatsoever, and the resources that are outside of the constitution do not make up a part of it and do not correct its defects.
It does not do this, however, because at bottom that is very indifferent to it, and because a simulacrum of liberty causes servitude to be endured more patiently. It amuses you at little cost, either by means of elections that are inconsequential as to the power they confer and as to the choice of subjects elected, or by means of Laws that appear important, but that it takes care to render vain, by observing them only as much as it pleases to.
Moreover one cannot propose anything in these assemblies, one cannot discuss anything in them, one cannot deliberate over anything in them. The small Council presides in them, both by itself and by the Syndics who bring only the corporate spirit into them. Even there it is still Magistrate and master of its Sovereign. Isn’t it contrary to all reason that the executive body rule the public order of the Legislative body, that it prescribe to it the matters it must take cognizance of, that it forbid it the right of giving an opinion, and that it exercise its absolute power even in the acts made to hold it within limits?
That such a numerous bodyR12 needs supervision55 and order, I grant it: But do not let this supervision and this order overturn the goal of its institution. Is it then a more difficult thing to establish rule without servitude among some hundreds of naturally serious and cold men, than it was at Athens, about which they speak to us, in the assembly of several thousands of quick-tempered, ardent, and almost unrestrained Citizens; than it was in the Capital of the world, where the People in a body exercised in part the executive Power, and than it is even today in the great Council of Venice, as numerous as your general Council? They complain about the lack of public order56 that reigns in the Parliament of England; and yet in that body composed of more than seven hundred members, in which such great affairs are treated, in which so many interests clash, in which so many cabals are fomented, in which so many heads become overheated, in which each member has the right to speak, everything is done, everything is expedited, that great Monarchy goes along as usual; and among you where the interests are so simple, so uncomplicated, where one has, so to speak, only the business of a family to regulate, they make you scared of storms as if everything was going to be overturned! Sir, the public order of your general Council is the easiest thing in the world; let them sincerely wish to establish it for the public good, then everything will be free there, and everything will take place there more tranquilly than today.
Let us assume that in the Settlement they had taken the opposite method from the one they did follow; that, instead of fixing the Rights of the general Council, they had fixed those of the other Councils, which by that very thing would have shown its rights; agree that one would have found in the small Council alone an assemblage of powers that are very strange for a free and democratic State, in leaders whom the People did not choose and who remain in office their whole life.
First the union of two things that are incompatible everywhere else; namely, the administration of affairs of State and the supreme exercise of justice over the goods, the life, and the honor of the Citizens.
An Order, the last of all from its rank and the first from its power.
An inferior Council without which everything is dead in the Republic; which alone proposes, which decides first, and whose voice alone, even in its own cause, permits its superiors to have one.
One Body that recognizes the authority of another one, and that alone has the nomination of the members of this body to which it is subordinated.
A supreme Tribunal from which one appeals; or rather on the contrary, an inferior Judge who presides in Tribunals superior to his own.
Who, after having sat as inferior Judge in the Tribunal from which one appeals, not only goes to sit as supreme Judge in the Tribunal to which appeal is made, but in this supreme Tribunal has only the colleagues whom he has chosen himself.
Finally, an Order that alone has its own activity, that gives theirs to all the others, that in all of them, supporting the resolutions it has taken, gives an opinion two times and votes three times.R13
The appeal from the small Council to the Two-Hundred is genuine child’s play. It is a farce in politics, if there ever was one. Hence this appeal is not properly called an appeal; it is a favor one implores in justice, a recourse to quashing of a warrant; one does not understand what it is. Does one believe that if the small Council did not feel very well that this final recourse was inconsequential, it would willingly have stripped itself of it as it did? This disinterestedness is not among its maxims.
If the judgments of the small Council are not always confirmed in the Two-Hundred, it is in particular and contradictory affairs in which it hardly matters to the Magistrate which of the two Parties loses or wins his trial. But in the affairs that are pursued ex officio, in every affair in which the Council itself takes an interest, does the Two-Hundred ever set right its injustices, does it ever protect the oppressed, does it dare not to confirm everything the Council has done, has it ever honorably made use of its right to pardon a single time? I recall with regret times whose memory is terrible and necessary. A Citizen whom the Council immolates to its vengeance has recourse to the Two-Hundred; the unfortunate man debases himself to the point of asking for pardon; his innocence is unknown to no one; all the rules had been violated in his trial: pardon is refused, and the innocent man perished.57 Fatio felt the uselessness of recourse to the Two-Hundred so well that he did not even deign to make use of it.
I see clearly what the Two-Hundred is at Zurich, at Berne, at Fribourg, and in the other aristocratic States; but I cannot see what it is in your Constitution nor what place it holds there.58 Is it a superior Tribunal? In that case, it is absurd that the inferior Tribunal sits on it. Is it a body that represents the Sovereign? In this case it is up to the Represented to name its Representative. The establishment of the Two-Hundred can have no other aim than to moderate the enormous power of the small Council; and on the contrary, it only gives more weight to that very power. Now every Body that constantly acts contrary to the spirit of its Institution is badly instituted.
What does it serve to dwell here on notorious things that are unknown to no Genevan? The Two-Hundred is nothing by itself; it is only the small Council which reappears under another form. A single time it wanted to try to throw off the yoke of its masters and to give itself an independent existence, and by this single effort the State was almost overturned. It is only from the general Council alone that the Two-Hundred still owe an appearance of authority. This was seen very clearly in the period about which I am speaking, and it will be seen even better in what follows, if the small Council succeeds in its goal: thus when the Two-Hundred works in concert with the latter to put down the general Council, it is working toward its own ruin, and if it believes it is following the lead of the Two-Hundred of Berne, it is being grossly led astray; but almost always little enlightenment and less courage has been seen in this Body, and that can hardly be otherwise from the manner in which it is filled.R14
You see, Sir, how much more useful it would have been, instead of specifying the rights of the Sovereign Council, to specify the attributions of the bodies that are subordinate to it, and without going any farther, you see even more evidently that, by the force of certain articles taken separately, the small Council is the supreme arbiter of the Laws and by means of them of the fate of all the private individuals. When one considers the rights of the Citizens and Bourgeois assembled in general Council, nothing is more brilliant: But consider those same Citizens and Bourgeois outside of it as individuals; what are they, what are they becoming? Slaves to an arbitrary power, they are abandoned without defense to the mercy of twenty-five Despots; at least the Athenians had thirty of them.59 What am I saying, twenty-five? Nine are enough for a civil judgment, thirteen for a criminal judgment.R15 Seven or eight of this number in agreement are going to be as many Decemvirs for you; still the Decemvirs were elected by the people; instead of which none of these judges is of your choice; and that is called being free!
Notes
R1 It is conferred to their Lieutenant only subordinately, and it is for that reason that he does not take an oath in general Council. But, says the Author of the Letters, is the oath that the members of the Council take any less obligatory, and does the execution of engagements contracted with the divinity itself depend on the place in which one contracts them? No, without a doubt, but does it follow that it is indifferent in what places and in whose hands the oath be taken, and doesn’t this choice show either by whom the authority is conferred, or to whom one must account for the use one makes of it? With what sort of Statesmen are we dealing if we have to tell them these things? Are they ignorant of them, or are they pretending to be ignorant of them?
R2 The Council is also present, but its members do not swear and remain seated.
R3 In the first Institution, every year the four newly elected Syndics and the four former Syndics rejected eight members of the sixteen remaining on the small Council and proposed eight new ones, who afterward passed to the vote of the Two-Hundred, in order to be admitted or rejected. But imperceptibly they rejected only those of the old Councilors whose conduct had laid itself open to blame, and when they had committed some grave fault, they did not wait for the elections to punish them; but they first put them into prison, and they tried them like the lowest private individual. From this rule of anticipating the punishment and making it severe, the remaining Councilors, all being irreproachable, did not lay themselves open to exclusion: which changed this practice into the ceremonial and vain formality that today bears the name of Grabeau. Admirable effect of free Governments, where even usurpations can establish themselves only with the support of virtue!
Besides, the reciprocal right of the two Councils alone would prevent either of the two from daring to make use of it on the other except in concert with it, out of fear of exposing itself to reprisals. Properly speaking the Grabeau serves only to keep them well united against the bourgeoisie, and for one to use the other to throw out members who do not have corporate spirit.
R4 This is how since the year 1655 the small Council and the Two-Hundred established in their Bodies the ballot and the tickets contrary to the Edict.
R5 The Procurator general, established to be the man of the Law, is only the man of the Council. Two causes almost always make this charge exercised against the spirit of its institution. One is the vice of the institution itself, which makes this Magistracy into a step in rank toward arriving at the Council: instead of which a Procurator general ought to have seen nothing above his place and he ought to have been prohibited by Law from aspiring to any other. The second cause is the imprudence of the People who entrust this charge to men related to those in the Council, or who are from families in a position to enter it, without considering that they thus will not fail to use against the People the arms it gave them for its defense. I have heard Genevans distinguish the man of the people from the man of the Law, as if it were not the same thing. During their six years the Procurators general ought to be the Leaders of the Bourgeoisie, and to become its advisor after that: but don’t you see it well protected and well advised, and shouldn’t it congratulate itself very much on its choice?
R6 The object of the taxes established in 1716 was the expense of the new fortifications: The plan for these new fortifications was immense and it was executed in part. Such vast fortifications rendered a large garrison necessary, and that large garrison had as its goal to keep the Citizens and Bourgeois under the yoke. By this means they succeeded in forming at their own expense the chains that they were preparing for them. The project was well tied together, but it proceeded in reverse order. Thus it could not succeed.
R7 In attributing the nomination of the members of the small Council to the Two-Hundred, nothing was easier than to order this attribution in accordance with the fundamental Law. For that it was sufficient to add that one could not enter into the Council until after having been an Auditor. In this manner the gradation of offices was better observed, and the three Councils cooperated in the choice of the one who makes everything move; which was not only important but indispensable, in order to maintain the unity of the constitution. The Genevans may not feel the advantage of that clause, considering that the choice of the Auditors is of little consequence today; but it would have been considered very differently when that office had become the only door to the Council.
R8 In its origin the small Council was only a choice made among the People, by the Syndics, of some Notables or Men of Probity in order to serve them as Assessors. Each Syndic chose four or five whose functions ended with his own: sometimes he even changed them during the course of his Syndicate. Henry called l’Espagne was the first Councilor for life in 1487, and he was established by the general Council. It was not even necessary to be a Citizen to fill this post. The Law for that was made only upon the occasion of a certain Michel Guillet de Thonon, who, having been admitted to the privy Council, was dismissed from it for having made use of a thousand ultramontane tricks which he brought from Rome where he had been brought up. The Magistrates of the Town, at that time true Genevans and Fathers of the People, were horrified at all these subtleties.
R9 This may be said setting aside the abuses, which assuredly I am very far from approving.
R10 These periodical Councils are as old as the Legislation, as one sees from the final Article of the ecclesiastical Ordinance. In that of 1576 printed in 1735 these Councils are fixed at every five years; but in the Ordinance of 1561 printed in 1562 they were fixed at every three years. It is not reasonable to say that these Councils had as their object only the reading of that Ordinance, since the printing that was made of it at the same time gave each person the ability to read it any time at his leisure, without the device of a general Council being needed only for that. Unfortunately they have taken great care to efface many old traditions that would now be very useful for the clarification of the Edicts.
R11 I shall examine this Edict of abolition below.
R12 Formerly general Councils were very frequent at Geneva, and everything of any importance that was done was brought there. In 1707 M. the Syndic Chouet said in a harangue that has become famous that in days gone by the weakness and the misfortune of the State came from that frequency; we will soon see what must be believed about this. He also insists upon the extreme increase in the number of members, which would today make that frequency impossible, affirming that formerly that assembly did not surpass two to three hundred, and that it is at present between thirteen and fourteen hundred. There is much exaggeration on both sides.
The oldest general Councils were at least between five and six hundred members; one would perhaps be rather at a loss to cite a single one of them that had only two or three hundred. In 1420 they counted 720 stipulants there for all the others, and shortly afterward two hundred more Bourgeois were received.
Although the Town of Geneva has become more commercial and richer, it has not been able to become much more populated, the fortifications not having allowed the enclosure of its walls to be increased in size and having had its suburbs razed. Besides, almost without territory and at the mercy of its neighbors for its subsistence, it would not have been able to increase its size without weakening itself. In 1404 they counted thirteen hundred hearths there making up at least thirteen thousand souls. There are hardly more than twenty thousand of them today; a ratio very far from that of 3 to 14. Now from this number must further be deducted that of the natives, inhabitants, foreigners, who do not enter the general Council; a number very much increased relative to that of the Bourgeois since the refuge of the French and the progress of industry. Some general councils in our days have gone to fourteen and even to fifteen hundred; but usually they do not approach that number; if some of them even go to thirteen, this is only on critical occasions when all good Citizens would believe they were not keeping their oath to be absent, and when the Magistrates, on their side, have their clients come from outside in order to favor their maneuvers; now these maneuvers, unknown in the fifteenth century did not then demand such expedients. Generally the ordinary number fluctuates from eight to nine hundred; sometimes it remains beneath that of the year 1420, above all when the assembly is held in the summer and it is a question of rather unimportant things. I myself assisted in 1754 at a general Council that was certainly not seven hundred members.
From these various considerations it results that, all things weighed, the general Council is today, with regard to number, just about what it was two or three centuries ago, or at least that the difference is not very considerable. Nevertheless everyone spoke in them then; the public order and decency that are seen to reign in them today were not established. Sometimes they shouted; but the people was free, the Magistrate respected, and the Council was frequently assembled. Thus M. the Syndic Chouet accused falsely, and reasoned badly.
R13 In a State that governs itself as a Republic and in which they speak the French tongue, a separate language would have to be made for the Government. For example, To Deliberate, To Give an Opinion, To Vote, are three very different things that the French do not distinguish enough. To Deliberate is to weigh the pro and the con; To Give an Opinion is to state one’s advice and to give the reasons for it; To Vote is one’s suffrage, when nothing is left to do but to collect the votes. First the matter is put into deliberation. On the first round one gives one’s opinion; one votes on the last round. Everywhere Tribunals have just about the same forms, but since in Monarchies the public does not need to learn their terms, they remain consecrated to the Bar. It is out of another imprecision of the Language in these matters that M. de Montesquieu, who knew it so well, did not omit to say always the executrix Power, wounding analogy in doing so, and making the word, executor, which is a substantive, into an adjective. It is the same fault as if he had said: the legislator Power.
R14 This is to be understood in general and only about the corporate spirit: for I know that there are very enlightened members who do not lack zeal in the Two-Hundred: but ceaselessly under the eyes of the small Council, given over to its mercy without support, without resource, and feeling very well that they would be abandoned by their Body, they abstain from attempting useless proceedings that would only compromise them and ruin them. The ignoble rabble buzzes and triumphs. The wise man keeps silent and moans under his breath.
Besides, the Two-Hundred has not always been in the discredit into which it has fallen. Formerly it enjoyed public consideration and the confidence of the Citizens: therefore without anxiety they let it exercise the rights of the general Council, which the small Council attempted from that time onward to draw to itself by that indirect method. A new proof of what will be said below, that the Bourgeoisie of Geneva is not very turbulent and hardly seeks to meddle in affairs of State.
R15 Civil Edicts, Title I. Article XXXVI.