PréFace

PREFACE

Had the work I publish today been brought to light four or five years ago, the time at which I intended for it to appear, I would have had no need, before entering upon the subject, to address my readers directly to observe that it was the continuation of another treatise I published in 1826 and 1827. Upon reading it, they would have perceived this for themselves, without needing to be told; they would have seen that I had applied the same method to the observation of phenomena of the same kind, and that I had followed the natural order of ideas, at least insofar as it was in my power to do so.

But when the publication of two works linked to one another is separated by an interval of nearly seven years; when, in that interval, a political revolution has plunged into oblivion most of the questions that were occupying the public mind, and has given rise to a host of new questions, it is not possible to delude oneself into believing that those who read the first have retained a memory of it, and that they can, at such a great remove, perceive the connections that unite it to the second. A great number of those who will read this one will have retained only confused ideas of the former, or indeed will never have read it at all.

I am therefore obliged to warn those who will read this treatise that it will be difficult for them to judge it properly if they have no knowledge or recollection of the one I published nearly seven years ago. Should objections present themselves to their minds, whether concerning the method I have followed or the manner in which I view the laws, I could not answer them otherwise than by requesting that they seek the solution in the work of which this one is but the continuation.

When in 1826 I brought out the first volume of my Treatise on Legislation, I had the intention of expounding in a single body of work all the principles of that vast science. But when, the following year, I wished to publish the three volumes that formed its continuation, the publishers raised serious objections to the execution of this project. They represented to me that many people would wait to purchase the published volumes until the work was finished; that booksellers, especially, would be unwilling to send to their foreign correspondents the first volumes of a treatise whose continuation was not assured, and whose end they could not announce for any definite time.

I yielded, though with regret, to these considerations, by publishing three new volumes in 1827. I resigned myself to presenting as finished a work whose most interesting parts had not yet been written; I reserved for myself the task of completing it by treating each of the branches of legislation separately, without, however, making any commitment in this regard to the public.

This determination had the result it was naturally bound to have: the best minds found that the title of my work bore little relation to the matters I had expounded. The subjects I had not treated were, in fact, so numerous and so extensive, compared to those with which I had dealt; moreover, most of the facts I had set forth were so far removed from the current state of the most civilized nations, that it was impossible to consider my work as anything other than the prolegomena to a science that remained to be created. From this resulted a few criticisms, whose complete justice I recognize, and of which I had all the less reason to complain as they were generally accompanied by much goodwill.

I could have remedied a drawback it had not been possible for me to avoid by hastening to publish the first volumes that were to follow the Treatise on Legislation; but political events did not leave me the time, and obliged me to occupy myself with more urgent subjects.

Some of the ministers of Louis XVIII and Charles X had so abused the power that the Charter gave the king to appoint judges; they had shown, in some of their choices, so much partiality in favor of men most disposed to be the instruments of their political passions, that they had convinced many people of the necessity for a judicial organization less suited than that of the Empire to furthering the aims or serving the passions of the agents of the executive power.

In 1817, I had published a translation of an English work on the institution of the jury, and I had prefaced it with a critical examination of our judicial system. In 1825, the English government having consolidated into a single body the numerous statutes that existed on the jury, and having subjected this institution to the reforms that the men most commendable for their enlightenment and their love for justice had solicited, I believed that it would not be without use to the progress of our institutions to translate, into our language, the act of the English parliament. I therefore published a second edition of the translation I had brought out in 1817, and I replaced the statutes that had just been abrogated with the general law that had reproduced and modified their provisions. At the same time, I submitted our judicial institutions to a new examination, and in comparing them to those that exist among all free peoples, I showed how weak are the guarantees they offer against the interests and political passions of the executive power and its agents. This work appeared in 1828.

The reaction of the following year, which brought about the dissolution of the Parisian National Guard and which ended with the famous Ordinances of July 25th, again suspended the regular course of my work. By publishing, in 1829, the History of the National Guard of Paris, and by recalling the part the Parisian population had taken in the principal events of the French revolution since 1789, I showed that attacks against the institution of the National Guard had always been immediately followed by the overthrow of liberty, and that this institution had constantly reappeared after the fall of despotism.

After the revolution of 1830, having been called to various public offices, and having imagined that it would not be impossible for me to be of some use to the public in the practice of affairs, I again suspended the execution of the project I had formed of completing, by separate treatises, the work of which I had published four volumes in 1826 and 1827. Experience soon dissipated the illusion I had entertained; it convinced me that there are unfortunate times when any man who means to make use of his reason and preserve the liberty of his conscience must know how to resign himself to not taking part in the affairs of government. I then returned to the execution of my former project; the two volumes I publish today are the result of this resolution.

Men who have not made a special study of the various states through which civilized nations have passed to arrive at the point they have now reached, cannot form an exact idea of the sway that the passions, institutions, and prejudices of past times exercise over each people. Every nation that has made some progress is placed under a double influence; it is dominated by the ideas or prejudices of a state that no longer exists, and it is impelled, on the other hand, by the sentiments or needs of its new position. This struggle between contrary prejudices and passions is one of the principal causes of the disorders of which we are witness.

Having become convinced that one cannot follow a regular and sure path in the perfection of our social institutions so long as one allows oneself to be subjugated by the prejudices, passions, and institutions of times that are no more, I attempted to describe, in my first treatise, the principal states through which all peoples seem to have passed, and to expound their various causes and effects; I attempted above all to show that the ideas and mores which are the necessary results of a given position must disappear when that position has completely changed.

There is nothing that interests men more profoundly and constantly, and that acts more strongly upon them, than the various modes by which they provide for their existence; it is from this that their dissensions, their wars, their alliances, their treaties, their civil and penal laws, and their political institutions, good and bad, all come. It is from this that most human actions arise—those we judge most criminal and ceaselessly aspire to repress, as well as those that seem to us most honorable, and which we encourage with our applause.

Now, men can provide for their existence by a multitude of diverse means; and the diversity of means always produces a diversity in the mores, in the ideas, in the institutions, in the growth of wealth, in the size of the population, in family relations—in short, in the entire existence of a nation.

The principal positions in which men can find themselves relative to their means of existence are six in number.

It can happen that, in a small tribe, each individual has, to defend his subsistence against the attacks of other individuals, only his own particular strength and that of the members of his family. This state is that of the most barbarous hordes, that which a great number of writers have named the state of nature par excellence. In such a position, no one seeks to obtain from his labors more than what he can immediately consume.

The population, instead of being thus deprived of all organization and all police, can be divided into two great classes. It can happen that one part, deprived of all organization, performs all the labors required for the existence of the entire nation, and that the other part, strongly organized, has the first part deliver to it, under the name of tributes or taxes, all the things it needs to live in comfort and in idleness. When one part of the population is thus exploited en masse by another part which divides the products of its labors, the one of the two that hereditarily enjoys the monopoly of power and riches takes the name of aristocracy.

The laboring population, instead of being exploited in common by an aristocracy, can be divided in such a way that each of those who live from the product of its labors possesses a greater or lesser number of laborers, and disposes of them as he judges convenient. This is the state that existed in the republics formed in the infancy of civilization, in Italy, in Greece, in Gaul; it is the one that still exists in most of the colonies formed by the moderns, and even in several of the States of the American federation. When the laboring population is thus possessed, it is placed in the rank of things; those who possess it recognize in it neither rights nor duties: this is the highest degree of the aristocratic system.

It sometimes happens that an entire nation is possessed by a single man or by his family, who exploits or governs it by means of an army, and who takes, from the revenues of his subjects, the share he judges suitable, whether for himself or for the agents of his exploitation. The name of despotic is given to the government that can thus dispose of the person and property of everyone.

There is a position less common and above all less durable than the preceding ones, but which has nevertheless existed at various times and in various countries: it is that of a society which, in order to make equality reign among the members of which it is composed, establishes that all labors will be done in common, and that each will have an equal share in the products. This state appears to have been that of all peoples who were passing from the state of hunters to agricultural life; it has also been adopted by some religious sects, and particularly by the Jesuits of Paraguay.

Finally, there is a last position which appears never to have been known by the peoples of antiquity, and toward which all the laboring classes among modern nations seem to tend: it is that of a nation which admits, in principle and in fact, that every man is master of himself and of the products of his labors, and which guarantees to each of the members of society the enjoyment and disposition of the goods that belong to him.

In the Treatise on Legislation, I made known the nature, causes, and consequences of the first five modes of existence; the last book treats particularly of the nature of domestic slavery, and of the influence it exerts on the physical faculties, on the intelligence and the mores of the various classes of the population, on the production and distribution of wealth, on national independence, and finally on the entire existence of the nations that have put it into practice.

To follow the natural order of ideas, it remained for me to treat of the sixth mode of existence, that of a people which will not admit that one man can be the property of another; which proclaims, on the contrary, that no one can be despoiled, by his fellow men, of the products of his labors, or of the goods he has regularly acquired; which guarantees, in a word, property, of whatever nature it may be, against every kind of infringement.

This work has for its object to make known the nature of this last mode of existence, to observe its developments and its effects. Determined never to abandon the method of observation that I have followed until now, and to hold myself constantly to the study of facts, I have not separated theory from practice. It would not have been possible for me, in fact, to observe social phenomena and not occupy myself with the reality of things. I am not unaware, however, that in proceeding thus, I have exposed myself to two reproaches: practitioners will accuse me of having given too much space to theory; philosophers, of having occupied myself far too much with the details of legislation.

In the work of which this treatise forms the continuation, I was principally occupied with the relations that violence has often established among men; I expounded their causes, nature, and effects. Henceforth, I will have to occupy myself only with the relations that are established naturally, whether between men and the things by means of which they exist, or between the individuals and the aggregations of individuals of which each nation is composed.

In the Treatise on Property, I have had to expound only the relations that exist or are established naturally between men and the things by means of which they can exist; and by this word relation, I mean the needs that are in men, and the qualities that are in things, and which are destined to satisfy these same needs, in the natural and regular order of production and transmission.

Allusions to present circumstances have always seemed to me quite out of place in a work of science; they render the truth suspect, because they call into question the impartiality of the writer. I have therefore entirely abstained from them; and yet, in reading some passages of this treatise, inattentive persons might think the contrary. I must therefore explain myself clearly here to prevent any false application of my thoughts.

In the third chapter of this work, in expounding what institutions characterize slavery, and those that belong to liberty, I observe that everywhere the possessors of slaves prevent, as much as they can, any sort of association from forming among the enslaved men; that they suppose, not without reason, that if the possessed men could come to an understanding among themselves, all their efforts would tend toward the destruction of slavery; that free men, on the contrary, associate whenever their interest requires it, without asking permission of anyone; that they deliberate on their common interests as often as they judge it suitable, and that no one disturbs them in their meetings, so long as they do not infringe upon public morals or the rights of others [^1].

In reading this passage, there are very few people who will not be tempted to believe that the author wished to allude to the law against associations, which has just been debated within the Chamber of Deputies. One would be mistaken, however, if one had such a thought; these observations on the right of association, written several years ago, were printed several months before the presentation of the bill to which they seem to allude. In delivering them to be printed, I was far from foreseeing that I would soon have to explain them, for fear of seeing false consequences drawn from them. Today, as at the moment they were written, I am convinced that the faculty of association is inherent in our nature, like the faculty of manifesting our opinions, like that of devoting ourselves to labor; I believe that one cannot, without oppression and without injustice, prevent its exercise, so long as no harm to private individuals or to the public results from it.

But while recognizing the right of association, it seems to me that this right can be admitted without danger only under two conditions: one, that its exercise be regulated by the laws, in such a way that the security of the general society, that is to say of the nation, is not ceaselessly troubled by particular associations; the other, that the excesses to which associations may give themselves over, whether against the public or against private individuals, can be repressed by the power charged with the repression of all kinds of disorders.

If the bill presented by the government appeared to me flawed, and if, as such, I voted for its rejection, it is because in my eyes it satisfies neither the conditions of order, nor those of liberty; it seems to me suited only to give greater intensity to disorder, and to furnish arms to arbitrary rule.According to this bill, which will probably soon be a law, any association of more than twenty persons is, in effect, criminal, if the government has not authorized it, whatever its object may otherwise be; it can exist only by submitting to all the conditions it pleases the police to impose upon it, and it can always be arbitrarily dissolved. But also any association of fewer than twenty-one persons, whatever its purpose and its means, is irreproachable by right, and is subject to no rule.

It follows from this that an illegal association of twenty-one individuals, which proposed to cause trouble in society, would become legitimate by expelling from its midst the member who was the most reasonable; and that an association of twenty persons, innocent according to the law, though animated by the worst designs, would become criminal if it received among its members a man endowed with enough good sense to make it renounce its projects.

What constitutes, in effect, the innocence or culpability of an association is neither the intentions, nor the purpose, nor the means, it is the number, and nothing but the number; to discern crime from innocence in such a matter, it will suffice to know how to count on one's fingers: up to twenty, all is innocent; beyond that, all is criminal.

If the associations of which one seems to have so much fear, and to which one attributes the most sinister designs, dissolve when the new law is promulgated, and if, from their debris, a multitude of associations is formed having the same purpose, and acting by the same means, but each counting fewer than twenty-one members, one will have nothing to say to them, whatever the action they exert on society, provided that no affiliation exists between them.

It is true that affiliations will not be very necessary for them, if the members can converse among themselves, and recount to one another what happens in their meetings; for the law not to remain ineffective, it will be necessary to consider as affiliated with an association, any man who is convicted of having had a conversation with one of the members of which it is composed.

These provisions, which men who are by no means devoid of wit seem to have placed among the finest conceptions of our age's legislative genius, if one is to judge at least by the heat and enthusiasm they have put into defending them, appear to me as little favorable to security and public order as they are contrary to liberty.

I do not admit that it is in the power of one or several men, even when they call themselves legislators, to change the nature of things, to transform into an offense that which, by its nature, is innocent, and to render innocent that which, by its nature, is pernicious to society.

A measure that declares punishable the innocent or honorable exercise of any of our faculties is an act of tyranny, whoever its authors may be; a measure that assures impunity for acts or actions liable to undermine public security or to disturb society is an act no less condemnable: in both of these respects, the bill against associations deserved to be rejected.

It is not possible to admit that any association composed of fewer than twenty-one persons is necessarily innocent; that it must be freed from all rules, and placed beyond the surveillance of magistrates and the reach of the laws; a multitude of associations, none of which would have more than twenty members, could certainly undermine public security and cause grave disorders, if they had bad designs and sufficient means to execute them.

All that can be conceived and put into execution by an association of twenty-five persons can be conceived, accomplished, by an association of eighteen or twenty, if it has sufficient means; there is even more concert and activity in a small society that disposes of great means, than in one that counts a great number of members, but disposes of nothing.

It is equally impossible to admit, on the other hand, that any association becomes criminal the moment it counts more than twenty members, and that it is impossible to guarantee public security without delivering to the arbitrariness of the police every association that exceeds this number; it would be impossible to support such a system without reproducing all the sophisms that were made, under the Restoration, to prove that prior and arbitrary censorship was the only means of preventing the abuses of the press.

According to the law presented by the ministry, associations are divided into two classes, and subjected to two opposing regimes. Those of more than twenty persons have no other rules than the will of the police; they are delivered to the arbitrary rule of the government, which can dissolve them, without accounting for its motives. Those composed of fewer than twenty-one members are freed from all rules and all surveillance; no magistrate can call them to account, either for the purpose they propose, or for the means they employ to achieve it. Thus, above twenty, unbridled license of arbitrary power against the most inoffensive, useful, and honorable associations; below twenty, entire license for even the most malevolent associations, against public order or against the citizens.

This absence, for the ones as for the others, of all rule, of all law; this assemblage of ministerial despotism and anarchic provisions; this double disorder, in a word, is called, in the language of the men who govern us, legal regime, public order! So be it! Let us not dispute over words, since we could not agree on things; but one must at least agree that men who want no kind of disorder, from whatever side it presents itself; who demand that all that is good and honorable be placed under the protection of the laws, and that every kind of license be repressed, have rather good reasons for not being satisfied with such a regime.

The law against associations is less pernicious to the progress of civilization, through the direct attacks it makes on liberty, than through the incitements it gives to the spirit of disorder and anarchy, by the habits of fraud, dissimulation, and conspiracy it tends to create. Blows struck at liberty, with a view to striking at license, are poor means of making public order respected; the article of the Penal Code, which they have claimed to reinforce, and which has hindered the formation of so many useful associations, has never struck at any enemy associations of the government, other than those that came to denounce themselves to justice.

Pardon me this long digression; it is quite foreign, I know, to the substance of this work; but I needed to explain a thought that might have been misinterpreted in the present circumstances. Having admitted the right to form associations as one of the essential conditions of liberty, I would not have wanted it to be believed that, in my thought, the exercise of this right should be subject to no rule, and that, in no case, was it permissible to repress its abuses. I am, on the contrary, convinced that public security will be able to reign only insofar as all associations, whatever the number of members of which they are composed, are subjected to certain rules, and that the public authority will have the means to repress their excesses, not by the arbitrariness of the police, but by the regular application of the laws.

In countries subject to despotism, one supplements the lack of foresight or the insufficiency of the laws with arbitrary rule; but one cannot resort to such a means among a free people, without exposing oneself to the gravest dangers. It follows from this that the more liberty there is in a nation, the more important it is that the exercise of all rights be well regulated, and that the public authority possess all the necessary means to regularly repress the offenses that may be committed. The government must never be placed in the alternative, either of tolerating a disorder, or of repressing it by violence and arbitrary rule. This, however, is the position in which it will find itself, so long as the right of association has not been regularized, and there is no legal means of repressing its abuses.

In concluding this preface, already far too long, I must add one reflection. I had proposed, not only to make known the nature of the various kinds of properties, but also to explain their formation. Now, it was not possible to give the explanation for this without recalling a great number of truths that belong to the science of political economy. The men who occupy themselves with this science will therefore find, in this treatise, many observations that I do not pretend to give as discoveries. I have recalled them only because I needed them to explain phenomena for which one does not find the explanation in works of jurisprudence. These facts, which are, so to speak, trivial truths for all men who devote themselves to the study of political economy, are moreover rarely observed, at least in France, by the men who are destined for the practice of law. Such are the motives that have determined me to present considerations which I could have dispensed with, if, in our schools, the study of law were a little more philosophical.

Paris, March 30, 1834.

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Notes

[^1]: Volume I, page 24.