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The Means of Contestation

Published online by Cambridge University Press:  28 March 2014

Bertrand de Jouvenel
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Extract

Power is potentiality: for those subjected to it, it offers the potential for good and for ill and therefore each and everyone is directly concerned with the way in which power is used. On this account we give the subject the name of citizen; for to do so implies a right to influence the use of power, which is his at least theoretically. But it is a hollow right, without substance, if he cannot use it. It is a hollow right if its only manifestation is that the citizen from time to time be invited to vote for the person or persons who will then wield absolute power. In such cases, the choice of the citizen is limited and furthermore he who before his accession may seem most desirable may after it reveal himself to be very bad: one has only to remember that no emperor was more fervently greeted than Caligula.

Type
Original Article
Information
Government and Opposition , Volume 1 , Issue 2 , 01 January 1966 , pp. 155 - 174
Copyright
Copyright © Government and Opposition Ltd 1965

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References

1 No one has shown more clearly than Rousseau how impossible this identification is, except in the forms of small and primitive societies.

2 Democracy and aristocracy are not naturally free states. Political liberty is only to be found in moderate governments. But it does not always exist in moderate states. It is only present where power is not abused: but it is an eternal truth that every man who possesses power is tempted to abuse it: he does so until he comes up against a limit. And strange as it may seem, virtue itself must be limited.

In order that power should not be abused, things must be so ordered that power checks power. Esprit des Lois, livre XI, Chapitre IV.

3 It is surely unnecessary to underline the fact that this liberty is truly ‘natural’ in the sense that it is innate; this is the ordinary course of events and if the authori‐ ties want to curb it, they must possess extraordinary means which were not at the disposal of former governments. One can in fact say with truth that assaults on freedom of speech are a modern phenomenon, arising out of the appearance of vehicles of expression which can be controlled: the printed word. In support of this, one can quote the fact that Venice, where even speech itself was subject to the Inquisition, was regarded as exceptional and was a source of astonishment in this respect.

4 Cf. L. Langr: Histoire Intèrieure de Rome, ed. fr. 1885, t.l. pp. 130f.

5 Manuel des institutions romaines, Paris, 1931, pp. 67–8.

6 Bodin, Jean, Les Six Livrer de la République, Livre 1.Google Scholar

7 Idem., Livre III, chap. III.

8 Du Contrat Social, Livre IV, Chap. V.

9 Ibid.

10 LOC. cit. In support of what Rousseau wrote one must note that among the republican magistracies engrossed by the emperor, there was nonc to which he clung more than the Tribunate.

11 Lit de justice of 3 March 1766.

12 Maximes du droir public français tirées des capitulaires, des ordonnances du royaume et des autres monuments de l’Histoire de France, 6 vols. Amsterdam, 1775, t. VI, pp. 74–5.

13 (Voltaire), Histoire du Parlement de Paris par M. l’abbé Big…, Amsterdam, 1769, 2 vols., t. 2, p. 158.

14 Those of the Parlement of Paris were published by Jules Flammermont in the collections of Documents Inédits sur l’Histoire de France, published by Auguste Picard.

15 The Maximes du droit public français which has already been quoted, and which was composed for the defence of the parlements after their dismissal by Maupeou (See Flammermont, J., Le Chancelier Maupkou et les Parlements, Paris, 1885, published by Auguste Picard).Google Scholar The first edition of the Maximes appeared in two volumes in 1772. My quotation is taken from the second edition in six volumes.

16 Op. cit., t. 4, pp. 1–2.

17 The two expressions are used without redundance because there were several sovereign courts which, by reason of historical circumstances or of geographical peculiarities, were never called parlements; the list of them is to be found in the Dictionnuire of Moreri.

18 The process is recalled by Robert, P. A. in his thesis on Les Remontrances et Arrêtés du Parlement de Provence au XVIII siècle, Paris, 1912 Google Scholar. ‘As soon as he received from Versailles the wishes of the monarch in the form of letters patent, the Procurator‐General entered the Great Chamber, declared his mission and asked for them to be registered. At the same time, he placed in the hands of the First President sealed letters, known as lettres de cachet which, according to custom had to be addressed to this magistrate, both for his own use and that of the Company. The Procurator then retired and the clerk read aloud the letter and the declaration which accompanied it. If the contents appeared quite normal and contained nothing prejudicial to the interests of the Court or of the Province, it was at once registered. But if, on the contrary, some clauses seemed suspect or dangerous, it was sent back to the commissioners, who met together and proceeded very carefully to a critical study of the letters. After a prolonged delay, they gave their verdict as to whether or not it was a case for remonstrance. Their advice was always accepted. Whenever they pronounced that a remonstrance was necessary, the Court, in full session of all Chambers, often took a preliminary decision, in the form of observations in which the main objections were briefly set forth. On the basis of this pre‐arranged plan, the commissioners met once more and put their project before the full assembly of the Chambers. They then deliberated and in the end the Court adopted by unanimous decision the wording submitted to it. The remonstrances were then ready to be sent to the king. Naturally the registration and therefore the execution of the orders remained suspended until the results of the parliamentary protest were known. Op. cit., pp. 38–9.

19 Quoted by Flammermout, J., Le Chancelier MaupLou, p. 121 Google Scholar

20 B. de Jouvenel: De la Souveraineté, 3e Partie, chap. 3.

21 Les Six Liwres de la République, Livre III, Chap. II.

22 Ch. Loyseau, Les Cinq Livres du Droict des Ofices, livre I, chap. III.

23 Terms used by Loyseau, particularly livre III, chap. IV.

24 See in Loyseau the chapter bearing this title, Livre II, chap. X.

25 I cannot refrain from the pleasure of quoting the vigorous page in which Loyseau expresses his feelings about this institution: ‘Au commencement du mois de janvier 1609 pendant les gelées je m’advisay étant à Paris, d’aller un soir chez le partisan du droict annuel des Offices, pour conférer avec lui des questions de ce chapitre. It estoit lors trop empesché. J’avoy mal choisi le temps. Je trouvais ladedans une grande troupe d’officiers se pressans et poussans, à qui le premier lui bailleroit son argent: aucuns d’eux estans encore bottés venans du dehors qui ne s’estoyent donné loisir de se débotter. Je remarquai qu’à mesure qu’ils estoient expediés, ils s’en alloient tout droit chez un Notaire assez proche, passer leur procuration pour résigner et me sembloit qu’ils feignoient de marcher sur la glace, crainte de faire un faux pas, tant ils avoient peur de mourir en chemin. Puis quand la nuict fut close, le partisan ayant fame son registre, j’ouy un grand murmurc de ceux qui restoient à dcpescher, faisans instance qu’en resceut leur argent, ne scachans, disoient‐ils, s’ils ne mourroient point cette nuict’.

26 It is unnecessary to recall that the royal authority did not intrude in matters of private law.

27 See for instance Tocqueville’s praise of the intrepidity of the parlements in L’Ancien Régime et la Révolution, Livre, II, chap. XI.

28 Delolme, J. L.: The Constitution of England (the original was published in French in 1771)Google Scholar.