What The Assembly Has Done To The Judicature
Part 2 of Reflections On The Revolution Of France

The Plan Of The Judicature
As little genius and talent am I able to perceive in the plan of judicature formed by the National Assembly. According to their invariable course, the framers of your constitution have begun with the utter abolition of the parliaments. These venerable bodies, like the rest of the old government, stood in need of reform, even though there should be no change made in the monarchy. They required several more alterations to adapt them to the system of a free constitution. But they had particulars in their constitution, and those not a few which deserved approbation from the wise. They possessed one fundamental excellence; they were independent. The most doubtful circumstance attendant on their office, that of its being vendible, contributed, however, to this independency of character. They held for life. Indeed they may be said to have held by inheritance. Appointed by the monarch, they were considered as nearly out of his power. The most determined exertions of that authority against them only showed their radical independence. They composed permanent bodies politic, constituted to resist arbitrary innovation; and from that corporate constitution, and from most of their forms, they were well calculated to afford both certainty and stability to the laws. They had been a safe asylum to secure these laws, in all the revolutions of humour and opinion. They had saved that sacred deposit of the country during the reigns of arbitrary princes, and the struggles of arbitrary factions. They kept alive the memory and record of the constitution. They were the great security to private property; which might be said (when personal liberty had no existence) to be, in fact, as well guarded in France as in any other country. Whatever is supreme in a state, ought to have, as much as possible, its judicial authority so constituted as not only not to depend upon it, but in some sort to balance it. It ought to give a security to its justice against its power. It ought to make its judicature, as it were, something exterior to the state.

Worst Of All Tribunals
These parliaments had furnished, not the best certainly, but some considerable corrective to the excesses and vices of the monarchy. Such an independent judicature was ten times more necessary when a democracy became the absolute power of the country. In that constitution, elective, temporary, local judges, such as you have contrived, exercising their dependent functions in a narrow society, must be the worst of all tribunals. In them it will be vain to look for any appearance of justice towards strangers, towards the obnoxious rich, towards the minority of routed parties, towards all those who in the election have supported unsuccessful candidates. It will be impossible to keep the new tribunals clear of the worst spirit of faction. All contrivances by ballot we know experimentally to be vain and childish to prevent a discovery of inclinations. Where they may the best answer the purposes of concealment, they answer to produce suspicion, and this is a still more mischievous cause of partiality.

Balances And Correctives
If the parliaments had been preserved, instead of being dissolved at so ruinous a change to the nation, they might have served in this new commonwealth, perhaps not precisely the same (I do not mean an exact parallel), but nearly the same, purposes as the court and senate of Areopagus did in Athens; that is, as one of the balances and correctives to the evils of a light and unjust democracy. Every one knows that this tribunal was the great stay of that state; every one knows with what care it was upheld, and with what a religious awe it was consecrated. The parliaments were not wholly free from faction, I admit; but this evil was exterior and accidental, and not so much the vice of their constitution itself, as it must be in your new contrivance of sexennial elective judicatories. Several English commend the abolition of the old tribunals; as supposing that they determined everything by bribery and corruption. But they have stood the test of monarchic and republican scrutiny. The court was well disposed to prove corruption on those bodies when they were dissolved in 1771. Those who have again dissolved them would have done the same if they could, but both inquisitions having failed, I conclude, that gross pecuniary corruption must have been rather rare amongst them.

It would have been prudent, along with the parliaments, to preserve their ancient power of registering, and of remonstrating at least, upon all the decrees of the National Assembly, as they did upon those which passed in the time of the monarchy. It would be a means of squaring the occasional decrees of a democracy to some principles of general jurisprudence. The vice of the ancient democracies, and one cause of their ruin, was, that they ruled, as you do, by occasional decrees, psephismata. This practice soon broke in upon the tenor and consistency of the laws; it abated the respect of the people towards them; and totally destroyed them in the end.

The Power Of Remonstrance
Your vesting the power of remonstrance, which, in the time of the monarchy, existed in the parliament of Paris, in your principal executive officer, whom, in spite of common sense, you persevere in calling king, is the height of absurdity. You ought never to suffer remonstrance from him who is to execute. This is to understand neither council nor execution; neither authority nor obedience. The person whom you call king, ought not to have this power, or he ought to have more.

Obedient Judges
Your present arrangement is strictly judicial. Instead of imitating your monarchy, and seating your judges on a bench of independence, your object is to reduce them to the most blind obedience. As you have changed all things, you have invented new principles of order. You first appoint judges, who, I suppose, are to determine according to law, and then you let them know, that, at some time or other, you intend to give them some law by which they are to determine. Any studies which they have made (if any they have made) are to be useless to them. But to supply these studies, they are to be sworn to obey all the rules, orders, and instructions which from time to time they are to receive from the National Assembly. These if they submit to, they leave no ground of law to the subject. They become complete and most dangerous instruments in the hands of the governing power, which, in the midst of a cause, or on the prospect of it, may wholly change the rule of decision. If these orders of the National Assembly come to be contrary to the will of the people, who locally choose those judges, such confusion must happen as is terrible to think of. For the judges owe their places to the local authority; and the commands they are sworn to obey come from those who have no share in their appointment. In the meantime they have the example of the court of Chatelet to encourage and guide them in the exercise of their functions. That court is to try criminals sent to it by the National Assembly, or brought before it by other courses of delation. They sit under a guard to save their own lives. They know not by what law they judge, nor under what authority they act, nor by what tenure they hold. It is thought that they are sometimes obliged to condemn at peril of their lives. This is not perhaps certain, nor can it be ascertained; but when they acquit, we know they have seen the persons whom they discharge, with perfect impunity to the actors, hanged at the door of their court.

The Assembly indeed promises that they will form a body of law, which shall be short, simple, clear, and so forth. That is, by their short laws, they will leave much to the discretion of the judge- whilst they have exploded the authority of all the learning which could make judicial discretion (a thing perilous at best) deserving the appellation of a sound discretion.

Immunity Of Administrative Bodies
It is curious to observe, that the administrative bodies are carefully exempted from the jurisdiction of these new tribunals. That is, those persons are exempted from the power of the laws, who ought to be the most entirely submitted to them. Those who execute public pecuniary trusts, ought of all men to be the most strictly held to their duty. One would have thought that it must have been among your earliest cares, if you did not mean that those administrative bodies should be real, sovereign, independent states, to form an awful tribunal, like your late parliaments, or like our king's bench, where all corporate officers might obtain protection in the legal exercise of their functions, and would find coercion if they trespassed against their legal duty. But the cause of the exemption is plain. These administrative bodies are the great instruments of the present leaders in their progress through democracy to oligarchy. They must therefore be put above the law. It will be said, that the legal tribunals which you have made are unfit to coerce them. They are undoubtedly. They are unfit for any rational purpose. It will be said too, that the administrative bodies will be accountable to the general assembly. This I fear is talking without much consideration of the nature of that assembly, or of these corporations. However, to be subject to the pleasure of that assembly, is not to be subject to law either for protection or for constraint.

Grand State Judicature
This establishment of judges as yet wants something to its completion. It is to be crowned by a new tribunal. This is to be a grand state judicature; and it is to judge of crimes committed against the nation, that is, against the power of the Assembly. It seems as if they had something in their view of the nature of the high court of justice erected in England during the time of the great usurpation. As they have not yet finished this part of the scheme, it is impossible to form a right judgment upon it. However, if great care is not taken to form it in a spirit very different from that which has guided them in their proceedings relative to state offences, this tribunal, subservient to their inquisition, the committee of research, will extinguish the last sparks of liberty in France, and settle the most dreadful and arbitrary tyranny ever known in any nation If they wish to give to this tribunal any appearance of liberty and justice, they must not evoke from or send to it the causes relative to their own members, at their pleasure. They must also remove the seat of that tribunal out of the republic of Paris. (49)