First: Of inciting hatred against the government;
Second: Of incitement of civil war.
Third: Of attacking the Constitution and property!
Had it pleased Monsieur Meynard de Franc to charge me also, in relation to an article in Le Peuple about Louis Bonaparte, with the crimes of infanticide, rape or counterfeiting currency, he could have: the charge would have stood; and there was no reason for me not to have been also and just as judiciously convicted. Acting on its honour and its conscience, before God and before men, by a majority of 8 to 4, the jury found me guilty on all counts and I got my three years. You may ask, frank readers, how honour and conscience can possibly be ascribed to the arbitrariness of such a charge. Here is the key to the puzzle which will help you resolve all problems of the sort.
“The law”—states the Criminal Prosecution Code, Article 342—“does not require of jurymen an account of the means whereby they have been persuaded: it prescribes them no rules whereby they are bound to gauge the fullness and sufficiency of evidence. It does not tell them: You will hold as true every fact to which such-and-such a number of witness may attest. Any more than it tells them: You are not to regard as sufficiently established any evidence that may not be made up of such-and-such a record, such-and-such components, such-and-such a number of witnesses and such-and-such particulars . It puts only this single question which encapsulates the entire extent of their obligations: Is it your heartfelt conviction?”
Now do you understand? Jurymen are told: In your heart of hearts, is it your conviction that citizen P-J Proudhon, here present, is a danger to the state, a hindrance to the Jesuits, a menace to your capital and your property? It counts for little whether or not an actual crime has occurred; that the public prosecutor has offered no evidence to substantiate his charge; that the rationale he uses bears no relationship to the crimes and offences imputed to the accused. The law does not ask you for an accounting of the means whereby you have been persuaded: it lays down no rules for your judgement. And when the aforementioned Proudhon might show you—as he is well capable of doing—that the facts cited in the charge sheet are contested and travesties; when he establishes, on the basis of evidence and testimonials, that he has done the very opposite of that of which he stands accused, and that it is Louis-Bonaparte himself who, in the indicted articles, is attacking the constitution, inciting the citizenry to civil war, demolishing the Church and the government, you are not required to pay any heed to these things. You are familiar with the accused: you have heard tell of his teachings: he is out, they say, for nothing less than robbing capital of its revenue by making it compete with credit, as well as to demolish the government by organising universal suffrage. The law poses only this question to you; it encapsulates the whole and all of your obligations: Do you have a heartfelt conviction regarding this man?’
In civil proceedings, the judge is required to justify his determinations. He has to review the facts, the evidence, the testimony, the legal texts and the jurisprudence: then he shows his reasoning, his induction and sets out his principles and conclusions. In short, the essential part of any judgement is the elaboration of the rationale.
Criminal proceedings are a different matter: the jury is spared the requirement to explain its finding. It is tested only on its heartfelt conviction. It speaks instinctively, intuitively, as do women and animals in whom, it has always been believed, divinity resides:—What did Aristides ever do to you? one Athenian asked the rural juryman about to black-ball that illustrious outlaw. —He annoys me—the upright, free man answered—in that I am forever hearing him dubbed “THE JUST MAN”! So much for heartfelt conviction!
I have no reason to speak ill of my judges: they have merely abided by the spirit of their imperfect institution. Besides, as my friend Langlois says, who was at the time appearing on his own account in front of a Versailles jury, one of these days this jinx must fall upon my head. But whereas I was keen enough to be judged, convicted and maybe even jailed, I had at least made myself the heartfelt pledge that it would be for a heavyweight cause, the Bank of the People, for instance. Providence which is on my trail has not found me worthy enough to suffer for truth’s sake.
Long live the democratic and social Republic!
CHAPTER XVIII
21 MARCH: THE LAW ON THE CLUBS; LEGAL RESISTANCE
IT WAS THUS, by the election of December 10th and the formation of the Barrot-Faucher-Falloux ministry, that the forces of reaction made new progress. The government had passed from tomorrow’s republicans into the hands of the doctrinaires. One step more, one more manifestation of unintelligent democracy, and we would fall into the hands of Jesuits. Then the blows administered by its own theologians, now becoming the continuators of the Revolution, will lead to the downfall of the principle of authority.
Everything is interdependent in the forward march of societies, everything serves the progress of revolutions. And when, poor reasoners that we are, we believe all is lost because of one of those blunders committed by our own blind politics, all is saved. Reaction pushes us onwards just as much as action, resistance is movement. The President of the Republic, whose historical significance is to dissolve the principle of authority among us, did not need to address the Montagnards to accomplish his work of death. According to the laws of revolutionary dialectics, which lead both governments and societies without them being aware of it, that would have been a retrograde movement on the part of Louis Bonaparte. From February on, the axis of the world having shifted, progress was being made though there seemed to be regression. We have just observed M. Odilon Barrot attack the Constitution in the name of the constitution itself by increasing the conflict between the separate powers: we are going to see M. Léon Faucher, the instigator of the events of January 29th, attack the Institutions by the law on the clubs. After the institutions it will be the turn of the Principles, and after the principles, the Classes of society. It is in this way that power reaches its own end: it cannot live either with the Constitution or the institutions, neither with principles nor with human beings. The auto-demolition of power forms a predetermined series of special acts, a sort of analytical operation which we shall see Louis Bonaparte’s government execute with a rigour and precision which are entirely peculiar to our nation. The French people is the most logical of all.
Certainly, after the February Revolution made in the name of the right of assembly, that right which citizens have to discuss the interests of the nation among themselves and solemnly express their opinion on the acts committed by the power of government; after, I say, this striking affirmation of popular initiative, if there were one institution that a democratic government was duty-bound to respect, nay, not merely to respect but to develop, to organise up to the point at which it would have made it the most potent means of order and peace, then it was the clubs. I say clubs, as I would say assemblies, popular societies, public meeting-rooms, colleges, academies, congresses, electoral committees, etc; in a word, associations and meetings of all kinds and varieties. The name is immaterial. Under the name of clubs, or any other you please to use, it is a matter of the organisation of universal suffrage in all its forms, of the very structure of Democracy itself.
The provisional government had been content with placing the clubs under surveillance: it prided itself on its tolerance. Tolerance! That was already a declaration of hostility and a denial of its own principle. After tolerance, intolerance was bound to come. Cavaignac gave the signal; the ill-tempered Léon Faucher, finding his predecessor’s work insufficient, undertook to complete it. He proposed a Bill which purely and simply declared the prohibition of the clubs.
To prohibit the clubs, to suppress the right of assembly, to forbid citizens to meet in a number exceeding twenty persons for any reason except by the permission and at the pleasure of the authorities: this is to declare that power is all, that it alone owns progress, intelligence, ideas; that democracy is only a word, and the true constitution of society is the system of so
litary confinement; and that it was absolutely necessary for the peace of the world and the order of civilisation that one of the two things should perish, namely either the initiative of the citizens or that of the State; either liberty or the government. M. Léon Faucher’s project did not contain anything but this dilemma, essentially.
When M. Odilon Barrot raised his hand against the Holy Ark of the government by fomenting the conflict of the separate powers, we responded to his thought by holding the sword of Damocles, presidential responsibility, over Louis Bonaparte’s head. M. Léon Faucher had it in for institutions: the best thing to do was to oppose a legal institution to him, namely legal resistance.
One recalls that famous session of March 21st in which M. Crémieux, the rapporteur534, declared in the name of the Committee appointed to examine the Bill on the clubs that the Constitution was violated by this Bill and that consequently the Committee would cease to participate in the debate. It is well-known that following this declaration nearly two hundred members of the constitutive Assembly left the debating chamber and immediately met in the Old Chamber to TAKE COUNSEL. This was nothing less than the beginning of a demonstration similar to that of June 13th, the first measure of constitutional resistance. But the proximity to February was too great, and we should admire the prudence of the representatives: afraid of weakening authority, they preferred to tolerate a violation rather than make a revolution. Thanks to a parliamentary compromise the demonstration by the minority had no consequences. The very next day, however, Le Peuple completed the opposition’s line of thought by calling upon all citizens to immediately offer resistance if the Assembly passed the bill.
As the question of legal resistance is of the highest seriousness, it being a part of republican law which is revived every day by the arbitrary nature of power and of the parliamentary majority, and because many people confuse it with the right to insurrection recognised by the Declaration of 1793, I am going to give a short account of its true principles before accounting for the political course followed by the People in this situation.
What is the right to insurrection?
How is one to understand the concept of legal resistance?
In which cases may one or the other apply?
If it were possible that the government were truly concerned with order, if it respected liberty and sought less to impose arbitrary decisions, it would make haste to deal with these questions officially and not leave the job to a journalist. But the government hates all questions of legality above all things and hushes them up as much as it can. What occupies it most is to persecute authors, printers, newspaper sellers, peddlers, bill-posters: it reserves its instructions and circulars for them.
I will observe first of all that the rights of insurrection and resistance belong to the period of subordination and antagonism: they fall into disuse when liberty is practised. In a democracy organised on the basis of the popular initiative originating in multiple locations with no superior authority the exercise of such rights would have no grounds for taking place at all. By the establishment of universal suffrage the Constitution of 1790 had already invalidated, while implicitly recognising, the right to insurrection. Imperial despotism, the Charters of 1814 and 1830, the 200 franc poll tax suppressing the intervention of the masses in public affairs, all these re-established it. The February Revolution had once more abolished it, at the same time as the death penalty: the monstrous doctrine of the omnipotence of parliamentary majorities which the government would like to impose restores it again.
After all, it is not, to tell the truth, a principle of democratic and social institutions that we are discussing here: it is a principle of absolute and constitutional monarchy, an idea born of privilege. Socialism repudiates the right to insurrection and legal resistance: its theory has no need of such sanctions. However, forced to defend itself on the terrain where the Constitution challenges it, it borrows the right from absolutists and doctrinaire politicians, authors or instigators of that Constitution, and uses it against them in the manner of an argumentum ad hominem, to use the scholastic expression.
The right to insurrection is that by virtue of which a people can claim its liberty, either against the tyranny of a despot or against the privileges of an aristocracy, without a previous denunciation as warning, and by force of arms.
It may happen, and hitherto this has been the almost constant state of the majority of nations, that an immense, scattered people, disarmed and betrayed, finds itself at the mercy of a few thousand enforcers under the orders of a despot. In this state, insurrection is fully justified and has no rules but those of prudence and opportunity. The insurrections of July 14th and August 10th were of this nature. There was a chance that Malet’s conspiracy in 1812 could have provoked an insurrection which would have been equally legitimate. The insurrection of July 1830, in which the country sided with the parliamentary majority against a king who violated a pact, was irreproachable. That of 1848, in which the majority of the country rose against the parliamentary majority to claim the right to vote, was all the more rational for having as its object the abolition of the right to insurrection by re-establishing universal suffrage.
So when the Convention, after having organised the primary assemblies and re-consecrated universal suffrage, wrote the right to insurrection into the Constitution of the Year II, it was creating retrospective legislation, to be exact; it took out a guarantee against a danger which no longer existed in principle. The Constituent Assembly of 1848 acted in the same way when, having declared direct and universal suffrage in Article 24, in Article 110 it adds that it entrusts the Constitution and the rights that it preserves to the guardianship and the patriotism of all the French. In principle, let me repeat, universal suffrage abolishes the right to insurrection: in practice, the antagonism of the separate powers and the absolutism of majorities can cause it to be reborn. How and in what cases is precisely what must yet be determined.
The right of insurrection has a particular characteristic, viz. that it presupposes a people oppressed by a despot, a third estate by an aristocracy, the greater number by the lesser. That is the principle, apart from which the right of insurrection vanishes at the same time as the conflicts of opinions and interests. The social union effectively takes on a different character inasmuch as the practice of universal suffrage becomes more widespread and propagates itself, while economic forces tend toward equilibrium; the empire of minorities is succeeded by that of majorities, which latter is itself succeeded by that of universality, that is absolute liberty, which excludes any idea of conflict.
There is, however, one case when the right of insurrection might be legitimately invoked by a minority against a majority: that would be in a transitional society when the majority wishes to abolish universal suffrage, or at least limit its application, in order to perpetuate its despotism. In that case, I maintain, the minority has the right to resist oppression, even by force.
Universal suffrage is basically the mode by which the majority and the minority manifest themselves; it is this from which the majority draws its right at the same time as its very existence, which implies that if universal suffrage were suppressed any minority might stake its claim to be the majority without fear of contradiction and consequently call for an insurrection. That is what legitimises the thirty-year-old conspiracy which we have seen certain members of the provisional government boast of from their parliamentary platform. From 1814 to 1848 universal suffrage did not exist, so the legitimacy of the government could always be doubted, and experience has proven twice over, essentially, that outside of universal suffrage this legitimacy of the government is null and void.
In a word, notwithstanding any vote to the contrary by the people or its representatives, the tacit or manifest consent by the people to the abolition of universal suffrage cannot be presumed.535
Such is the jurisprudence, if I may put it like that, of the right of insurrection according to our imperfect constitutions and our revolutionary traditions
. What is most worth retaining of all that is the fact that as the progress of democracy advances this terrible right abolishes itself, and one may assert that unless a restoration of absolutist ideas were to take place, which has in fact become impossible, the time of conspiracies and revolts has passed.
We now come to legal resistance.
We have said that the right of insurrection cannot be allowed to pertain to a minority against a majority in a country where universal suffrage has begun to develop. However arbitrary the decisions of that majority may be and however flagrant the violation of the pact may appear, a majority can always deny that there is a violation as such, which reduces the difference to a simple question of perspective and consequently offers no pretext for revolt. Even if the minority invoked certain rights prior or superior to the Constitution that it claims the majority has overlooked, it would be easy for the latter to invoke in its turn other prior or superior rights like the public safety by virtue of which it could legitimise its will. This would be so effective that it would always be necessary to arrive at a definitive solution by voting, to appeal to the law of number. So let us admit this proposition as proven: between the minority and the majority of the citizens as constitutionally manifested by universal suffrage, an armed conflict is illegitimate.
A minority cannot be permitted to be at the mercy of a majority, however: justice, which is the negation of force, demands that the minority have its guarantees. For it may occur as a result of political passions and the opposition of interests that the minority reacts to an action of the ruling majority by claiming that the Constitution has been violated, which the majority denies; when the people are called upon as a final arbiter of this disagreement, being the supreme judge in these matters, the majority of the citizens joins the majority of representatives with uncompromising egoism in deliberately treading underfoot both truth and justice, though they are precisely the ones who should defend them according to the Constitution. The minority, overtly oppressed, is then no longer a party in political and parliamentary opposition but a proscribed party, a whole class of citizens thus being placed outside the law. Such a situation is shameful, is suicide, is the destruction of all social bonds. Yet insurrection in the terms of the Constitution is forbidden: what can the minority do in this extreme case?
Property Is Theft! Page 61