Chapitre Premier.

CHAP. 11: CHAPTER ONE.

Of the nature of laws; of the elements of force or power of which they are composed, and of the various ways in which some are formed and destroyed.

In examining, in the preceding book, the various systems that have been imagined on legislation and morality, we have seen that one can rest neither morals nor laws on the bases that have been given them, and that the authors of these systems have misunderstood their nature and foundation. Having seen what laws are not, and what they cannot even be, I now have to expound what they are, and to indicate what their basis and nature are. But, since the sciences of legislation and morality can be formed, like the others, only by the observation and exposition of certain phenomena, where must we seek the facts by means of which it is possible for us to determine the nature of laws and morals? We can seek them only in men, or in the things in the midst of which they are placed. We must therefore discard books; if it is permissible to make use of them, it is only insofar as they can help us in the investigation or examination of facts.

Of all the individuals of the human race who existed a century ago, there are almost none who have not disappeared; and of all those who are living at this moment, there will exist but very few in the same space of time. The human race, however, far from decreasing or declining, grows, on the contrary, in a very great progression, and the existing generations live, in general, happier than those that preceded them. But, although nations prosper, each of the individuals of which they are composed is born, grows, and dies in a given time; it is therefore only by a continual movement of production, growth, and destruction of individuals that the human race perpetuates and perfects itself.

This movement that operates among peoples and that perpetuates their duration takes place only by means of certain relations that exist or are established, either between men and things, or between the individuals or collections of individuals of which the human race is formed. A man lives only by means of the animal, the tree, or the field that nourishes him, the clothing that covers him, the hut or the house that serves as his shelter. He reproduces only by means of a being of his species to whom he unites. His children grow and multiply in their turn only by means of the care they receive from him or from other individuals of his species. When he perishes, the things he used to perpetuate his existence or to satisfy his pleasures go to satisfy the pleasures or perpetuate the existence of other individuals, as long as they are fit for this use. Finally, all having needs and desires, employ the means in their power to satisfy them.

Having the same needs and being endowed with the same faculties, men generally adopt the same morals, whenever they find themselves in the same position, have the same enlightenment, and possess the same means. From this it results that, when all the individuals of which a nation is composed have arrived at roughly the same degree of civilization, all act in a roughly uniform manner with regard to one another. Uniformity is further increased by the influence that one part of the population exercises over the other parts, an influence that results from force, courage, enlightenment, or wealth. One remarks in man two tendencies that seem opposed, and which nevertheless push him toward the same goal. One is that which leads him to constrain his fellows to regulate their conduct by his own, whenever he imagines he has some superiority over them. The other is that which leads him to imitate what he sees being done, whenever he imagines that the imitation will be followed by some happy result for himself.

It is remarkable that the less a population has moved away from barbarism, the more uniformity there is in the conduct and morals of the individuals or families of which it is composed. All individuals who have reached the same development, having in effect the same needs, the same force, the same means of existence, and the same dangers to run, can have only similar ideas and morals. The differences of physical organization, which exist in some, produce only slight differences in their intelligence and in their passions; because all are obliged to devote themselves to the same occupations, none can have more than another the time or the means to develop the particular dispositions he brought at birth, and besides, he is not excited to do so by any individual motive. Thus, when one studies the customs of barbarous peoples, one finds that, in the same circumstances, they all conduct themselves in roughly the same manner, and are endowed with the same virtues and the same vices. This resemblance is such that, in the same horde, all individuals of the same age and the same sex being moved by the same passions, devoting themselves to the same exercises, and nourishing themselves with the same foods, all bear the same physiognomy. The differences one observes between two hordes are due to differences of origin, position, or occupations.

Among peoples who have made some progress in civilization, the differences of occupations, of fortune, and of intellectual development necessarily produce some differences in morals or in the manner of conducting oneself toward others; however, these differences are far from being as great as the inequalities that produce them. A man sometimes has an immense superiority over another by his intelligence, by his fortune, or by the rank he occupies in the social order; but, if one compares the conduct of the one to the conduct of the other, relative to the various members of their families, to the distribution of their goods, to their private or public morals, one will find between them only very slight nuances. The differences one will remark will not even always be in favor of those who, in other respects, have the superiority.These various ways of being and proceeding, which a people holds from its own nature, its faculties, its needs, the state of its knowledge, and the position in which it finds itself, are the result of the laws to which it obeys; and since it is impossible for a people to exist and reproduce itself without some mode of being and proceeding, it is impossible to conceive of a people deprived of laws or morals: this is as impossible as it is to conceive of matter destitute of all form. The laws of a people being the powers that determine the mode according to which it exists, maintains itself, and perpetuates itself in a given state, one cannot have to seek who the first founders of these laws were; for that would be to seek who were the authors of its own nature, of the objects that surround it, and of the forces to which it obeys. Nor can one have to seek whether it is possible to strip a people of every kind of law; that would be to seek whether a nation can exist and reproduce itself without any force that determines its mode of existence and reproduction. Thus, the study of the laws to which a people is subject is nothing other than the study of the forces that determine the manner in which this people exists, maintains itself, and reproduces itself [66].

But, to find these forces or these powers to which peoples obey, and which we designate by the name of laws, where must we seek them? I have already said it: in men themselves, or in the things that surround them. Books, unless they are collections of lies, can contain only descriptions of what exists or what has existed. One understands this very well in the natural sciences and in some branches of the moral sciences; no one is simple enough to confuse a book on botany with the plants whose description it contains, a book on mineralogy with the minerals whose characteristics it indicates, a book on morality or statistics with the morals or wealth of this or that people.

But it is not the same in legislation: it is very common, in this science, to take the description for the thing described, and even to consider a purely imaginary description as a reality. There exists, however, so great a difference between the power to which we give the name of law, and the description of that law; these two things are so distinct, so independent of one another, that it seems impossible to confuse them, when one takes the trouble to consider them attentively. Often, laws exist without it being possible to find their description anywhere; thus, the laws that have determined the mode of existence of all the peoples of Europe, to which we give the name of customs, and which the English call common law, have an existence that goes back to unknown times, although the description that has been made of them among several is quite recent. Often, too, laws have ceased to exist for centuries, although we possess very meticulous and very exact descriptions of them; we have, for example, the description of a part of the Jewish, Greek, and Roman laws; but most of these laws have long since ceased to exist. He who would believe they still exist, for the reason that he possesses books in which he can find their description, would be committing the same error as he who would believe in the current existence of the Roman emperors, for the reason that he possessed medals on which he found their effigy.

In saying that the laws of a people are in itself, and in the things that surround it and that contribute to determining its manner of being, I would be stating a proposition that would seem paradoxical to some, and which others would not hesitate to declare false; yet I would only be stating facts that seem to me evident. The laws of a people are in it, or are part of it, like its morals, like its needs, like its passions, like its ideas, like its physiognomy, just as a certain form belongs to a certain material object. If we are inclined to think the contrary, it is first because we believe we see an identity of things where we find an identity of names; and, second, because we often take, as I have already observed, the description for the thing described. In saying that the laws of a people are a part of its own nature, I am not speaking of the description of these laws; one will doubtless grant that the physiognomy of an individual is a part of that individual, but one will not say the same of his portrait, however exact the resemblance may be.

The laws of a people often change, and yet that people remains the same; often, too, the laws remain the same, although the population is renewed; how, it will be said, could its laws then be a part of it? The laws of a people change, that is evident; but it is no less evident that the people changes with them. The French nation that existed in the time of Louis XIV bore the same name, spoke the same language, inhabited the same soil and partly the same houses as the people that existed in the time of Charles IX; yet it was not the same people; the latter had disappeared. The French nation that exists at this moment likewise speaks the same language, cultivates the same fields, inhabits partly the same houses, practices the same arts, and studies the same sciences as the nation of Louis XIV’s time; yet it is not the same: all the individuals who composed the latter have long since disappeared. Insensitive to the movement that carries us away with all that surrounds us, we believe that nothing changes, while everything is in a perpetual movement, and there is not a single object subject to the influence of time that is exactly the same from one instant to the next. The slightest reflection is enough to convince us that the nation existing today is not the same as the one that existed a century ago. But this substitution of one people for another on the same soil did not happen instantaneously or by a single act. What, then, is the instant when the population ceased to be the same? At every minute, and we can even say at every second. There is not an instant when a revolution has not occurred through the creation and destruction of a multitude of individuals, and through the changes experienced by those who seemed least subject to the action of time.

Not only do peoples change at every instant when considered in mass, but each individual changes from one moment to the next: no one is exactly and absolutely the same for two consecutive minutes. Doubtless, the matter of which we are formed, the blood that circulates in our veins, the sentiments that animate us, the passions that agitate us, the ideas or affections that direct us, even the features of our physiognomy, and down to the color of our complexion, are parts of ourselves; to destroy them would be to destroy us, to modify them would be to modify us. But, if this is so, can one say, speaking with exactitude, that this decrepit old man about to descend into the grave, and the child who was born ninety years ago, are the same individual? If identity is found neither in the matter, nor in the sentiments or affections, nor in the ideas, nor in the features, nor in the internal or external forms, nor even in the color, where is it to be found? If it exists in none of the parts, can one say that it exists in the whole, or would one claim that the whole is identical, although identity exists in none of the parts? An individual can therefore change from top to bottom, without our ceasing for that reason to consider him as being always the same individual; and for the same reason, a nation can undergo various modifications, without our ceasing to consider it as being always the same nation. Our languages are too imperfect to lend themselves to the innumerable revolutions to which both men and the objects that surround them are subject; and things have sometimes totally changed while the names still remain [67].

Thus, from the fact that nations appear to us to remain the same, while the laws to which they are subject change or are modified, or from the fact that laws remain invariable while the population is renewed, we must not conclude that the laws of a people are not a power whose elements reside partly in it, and which determine the mode or the conditions of its existence.

The elements of power that form the laws of a people can be only in itself, or outside of it; if they are in it, they are inherent in its own nature in the same way as its ideas or its affections; if they are outside of it, one can find them only in other peoples or in material things. All nations have had unwritten laws, and there are several that are still in this case: now, if one does not admit that these laws are in themselves, and that they are a certain modification of their existence, I will ask where they were and what they were before we were given their description [68]?

One must not consider this distinction between a law and the description of that same law as having no real utility, and as being only a vain subtlety of the mind: it is the very basis of the science of legislation. A science, as I have already observed, is only the knowledge and connection of a certain order of facts. Now, if we do not find laws in the very nature of peoples; if we do not see them in the principles of action that they carry within themselves, and which determine particular modes of being and proceeding; finally, if we find them neither in men nor in things, how will it be possible for us to classify them among facts? Can one see in them anything other than a series of words or phrases arranged with more or less order? The error that consists in taking a description for a law, the written affirmation of a certain order of facts for the very existence of those facts, has been more than once fatal to nations. Often, they have believed that to be placed under protective laws, it would suffice for them to possess a description made with more or less solemnity; often, too, they have thought that to destroy harmful laws, it would suffice for them to erase the description from their codes. Experience has always proved that these were poor means; but experience has enlightened no one.

Let a prince or an assembly have it written, on a sheet of parchment, that property, individual security, and the freedom to express and publish one’s opinions are guaranteed; let them write names and place wax at the bottom of this description; can one say that it is a law, for the sole reason that it bears the name, that it has been invested with certain forms, and published with more or less splendor? To decide if it is a law, that is, a power to which nothing can resist, one must ask what are the elements of force of which it is composed. Where do they reside? Against whom can they act? By whom, and against whom are the guarantees given? If they are not given against the persons or authorities who have the desire and the force to attack one of the things supposedly guaranteed, it is not a law; it is a false declaration or a lie. It is equally a false declaration if no guaranteeing power exists in the society, or, what is the same thing, if the existing power is inferior to that against which the supposed guarantee is granted. Finally, it is again a false declaration if the power that is to guarantee, and that against which the supposed guarantee is given, are one and the same power. Thus, what can constitute the law, in the case in question here, is not the description made with more or less solemnity of a thing that does not exist; it is the real existence, within a nation, of a power having an irresistible tendency to produce the announced result [69].

Let, on the other hand, an assembly enamored of equality, and more advanced than its century, write in its registers that all men are equal, that no distinctions of birth exist, that one no longer recognizes rank, titles, or decorations; does one think that this description of an imaginary world will be a power that will change the real world? If it threatens with penalties whoever does not conform to it, it may have the effect of momentarily commanding hypocrisy, of apparently lowering some, and of raising others a little; but, at the first opportunity, the compressed vanities will surge up from all sides, and will form a power that will be the law: one will then see reappear ranks, titles, distinctions, and all that follows.

But what are the elements of which this force to which we give the name of law is composed? In the physical order, this name is given to any power that acts in a constant and regular manner, but whose nature is almost always unknown; one speaks of the laws of gravity or of gravitation, without knowing these laws other than by the effects they produce. Whenever one observes an effect that is always the same in a given circumstance, and whose cause one cannot explain, one gives to this unknown cause the name of law; in this sense, there is no body that does not have its laws, or whose existence is not subject to invariable conditions.

In the moral order, the name of law is likewise given to any force or any power that acts in a constant and regular manner; one can judge it by the facts that manifest its existence; one can even sometimes decompose it to a certain point; but the nature of the primitive elements of which it is formed is as hidden from our eyes as the nature of the laws of the physical world. It is possible, in legislation as in other sciences, to go back from one fact to another; but we always arrive at facts before which we are forced to stop, because beyond them we see nothing more. All that we can do in decomposing a law is to show the various elements of which it is formed; but one must not hope to arrive at the decomposition of each of these elements.

It is common enough to see a law in a written order, given by a government, drafted and published in certain forms. These things sometimes do, in effect, form part of a law; but they never form a whole law. A law is a power that determines certain ways of acting or proceeding; but this power is rarely a simple being. It is almost always composed of a multitude of forces that concur toward the same goal, and which must be examined separately, if one wishes to have a complete idea of the whole. This truth will be understood if I apply it to a special law: I will take for example the law that determines, in France, the order of successions.

According to this law, if a father dies leaving a legitimate child, and without having made any testamentary disposition, this child inherits all his goods; if he leaves two or more children, these children divide his goods in equal parts, whatever their nature, without distinction of sex or age, and without being bound to follow any rules other than those traced for them by their own interests, interests of which they themselves are the arbiters. “Children or their descendants,” says the Code civil, “succeed to their father and mother, grandfathers and grandmothers, or other ascendants, without distinction of sex or primogeniture, and even though they are the issue of different marriages.”

What do we find in these lines? A single thing: the simple description of how certain properties are transmitted and divided, in a given case. But, properly speaking, it is not this description that constitutes the law: the description could remain the same, while the law was changed. Nor is the law in the fact described; this fact is a simple result; when it takes place, it is the law itself that produces it. Where then must one see the law? In the very power that, in all similar cases, produces the fact whose description has just been read. Most of the elements of which this power is composed existed long before anyone had thought of describing their results; and it is evident that they could survive, not the facts they produce, but the description that has been given of them. To know these various elements of power, we must therefore seek them elsewhere than in books.If we ask what are the elements of which this law is composed, or, in other words, what are the forces or powers that determine, in France, this transmission and this division of properties, the men most disposed to think that the actions of peoples or their ways of judging and proceeding are but the expression of the thought of such and such men whom we call ministers, princes, deputies, or legislators, will answer, without hesitation, that the cause of the way in which goods are transmitted and divided is in a dozen printed lines in a small book that the French call the Code civil. These lines, in effect, may have something to do with it; but they have very little to do with it; children succeeded their fathers and divided their goods long before they had been written; if one were to go back to other written lines, of which these were but a copy, we could go back to successions and divisions much more ancient still.

The writing by means of which one describes the material fact that a law produces is but the expression of the thought of a certain number of men; it is not a primary cause, it is an effect and a means. The thought of these men is not a primary cause either; it is the result of the impressions produced on them by a multitude of diverse causes. The individuals who describe the laws or the phenomena they produce, whatever the names under which they are designated, are but men. They are subject to the same action, they are susceptible to the same impressions, the same sentiments, the same needs, as all beings of their species; and the greatest part of the human race can feel all that they themselves have experienced. It results from this that the causes that determine a certain class of men to describe or to command a way of proceeding act, almost always, with the same force or even with a greater force, upon a very considerable number of the members of society. If these men abstained from describing or commanding this way of acting or proceeding, it would nonetheless be followed by a great number of persons. It would be so even if the individuals invested with authority permitted themselves to forbid it; but it would be so less generally and with much more difficulty. If a government took it into its head to forbid fathers from feeding their children, or from leaving them their goods, fathers would feed their children and transmit their goods to them in spite of it.

One must therefore place among the elements of which a law is composed, the very forces that act upon a government, and which determine it either to command certain actions, or to forbid others. These causes are even the most considerable part of the power that we designate by the name of law, when they act on the members of society as on the government itself. They vary like the ideas, sentiments, needs, and even the prejudices of the population; and their action is often more immediate and stronger on the individuals to whom the law appears to be imposed, than on those who appear to be the authors of that law. To obey it, citizens often need neither the intermediary of the writing that indicates the action to be executed, nor the thought of the government by which this description was given. An infinite number of actions, which are the result of the power that forms the law, are executed at every instant by individuals who have never known how to read, and who die without ever having known what a law or a government is.

The action exercised on one part of the population by another part, by means of example or by the sole influence of opinion, is a second element of which the law is composed; for it determines the conduct or regulates the actions of a considerable number of individuals. Man is an imitative animal, by his own nature, and this is what constitutes in part his perfectibility; he also desires to be imitated in his turn, and he employs for that the various kinds of influence that belong to him. This action and this reaction that a nation exercises on itself contribute greatly to giving a uniform course to the various members of which it is composed. If one wished to know its elements, one would have to seek them in the needs, passions, ideas, or prejudices of the various fractions of which the population is composed.

Religious opinions also often contribute to determining a certain kind of action: in this respect, they are one of the elements of the law; they are a force that joins with forces of a different nature to produce the same result.

The description that the legislator gives of the action to be executed, and the promulgation that this description receives, are also among these elements; they contribute to making the action to be executed more general and more regular. They add, moreover, to the influence of example and opinion. This description and this promulgation, made in certain forms, often take on their own the name of *law *; this is even the vulgar meaning of this word.

The officers whose functions consist in bringing citizens before the courts, the magistrates of whom these courts are composed, the individuals charged with carrying out their judgments, are likewise forces that contribute to producing the facts that the government has described, and which, consequently, are part of the law.

The influence that nations and governments exercise on one another enters, as a power, into the elements of which certain laws are formed; this influence is sometimes even the principal part of them.

Finally, the various physical circumstances in the midst of which men are placed, and which determine their way of life, their ideas, their morals, their mutual relations, are also powers that are among the elements of the law: such are the nature and position of the soil, the temperature of the atmosphere, the direction of the waters, and other analogous circumstances.

Most of these elements could be decomposed still further; but a greater decomposition would be of no utility here, and we would always end by arriving at simple facts that would remain inexplicable. All that I wished to demonstrate is that a law is but a bundle of diverse forces, always producing similar actions in given cases.

These forces, whose combined action forms the legal power, may not concur simultaneously toward the same goal, or may not act with equal energy; they can sometimes act in opposite directions. It would be a frivolous question to ask what is the precise moment when they cease or begin to form a law; one might as well seek the instant when a certain block of marble, placed under the sculptor's chisel, can be called a statue. I will only observe that, when the forces whose principal elements I have made known no longer have enough energy to produce the action that ought to be their result, the law no longer exists.

When a government is determined to command or forbid a certain kind of action only by causes that do not act on the population in an immediate manner; when one of the principal elements of the power that forms the law is the influence of a foreign people or government; finally, when citizens are determined to act or to abstain only by the very orders that a government gives them, and by the material forces by means of which it constrains them, these laws are called unjust or tyrannical. When, on the contrary, the causes that act on the government act immediately and with the same force on the citizens, and they do not consist in a foreign influence, public authority, in describing the material fact that the law produces, has no other object than to bring back to the common rule that the population follows the small number of individuals who tend to deviate from it. A government that declares, for example, that fathers are bound to feed their children, and that employs its power to have its declaration executed, does nothing other than compel an infinitely small number of individuals to do what the immense majority of citizens does without it, and would do even in spite of it. Legislators have not judged it necessary to enjoin citizens to feed and clothe themselves, although one sometimes encounters individuals who let themselves die of hunger, or who are poorly clothed. The reason for this is clear; it is that the causes that would lead it to make such an ordinance act with as much force on the citizens as on itself; for the law to be observed, there is no need for it to be described, nor for the courts to meddle in having it executed [70].

The laws of a people being the powers or forces that determine the various modes according to which it exists and perpetuates itself, being consequently, for the most part, inherent in its own nature, what, then, is a legislator? Is it a genius who creates peoples, or who modifies them according to his caprices? The men who have written on laws have had legislators play an immense role; they have made them, in a way, divine geniuses. They have named them the fathers of nations, the founders of States; they have placed them above humanity. It is true that after having raised them so high, they have placed themselves higher still, since they have demonstrated the faults or errors of the legislators who have already existed, and they have traced rules of conduct for legislators to come.

In taking laws for what they really are, one sees how difficult it is to change the laws of a people, when one can effect this change only by means of an internal force belonging to the people itself whose existence one wishes to modify. One must modify its ideas or its understanding, its habits, and in a way its manner of feeling; one must make it renounce the things to which it holds most, subtract it from the powers that exercise over it the most absolute empire. Thus, when one examines closely the work of legislators, one perceives almost always that these men have confined themselves either to describing the material facts produced by already existing laws, or to declaring the changes that time and experience had brought about in the way of judging and feeling of a more or less considerable part of the population. The Romans have been praised for not destroying the laws of vanquished nations: this is because it was hardly possible, unless one destroyed the nations themselves. One can, by means of cunning, imposture, or violence, change that part of legislation that relates to the organization of political powers, if the ideas and habits of the population are not formed in this regard. But, to change the laws that relate to the morals of families, to the preservation and transmission of properties, the force of a conquering army is needed, and even that force is not always sufficient. Few conquerors have shown more violence, more contempt for vanquished peoples, and above all less policy, than the barbarians who subjugated the east of Europe in the fifth century. We see, however, that even in the confusion inseparable from conquest, each race continued to be governed by its own laws [71].

A law can have centuries of existence before anyone thinks of describing the phenomena it produces; these phenomena can be described at the moment they declare or manifest themselves; they can even be described before they have manifested themselves. The phenomena that result immediately from the law, and of which no one has yet given the description, can be described by any individual who is endowed with sufficient capacity to observe it well. It is no more necessary, to describe them well, to be invested with any authority whatsoever, than it is necessary to describe the morals of an individual, or the organization of a plant. The description can also be given by the members of a government or by their agents: thus the material results of the customary laws of the various provinces of France were described by commissioners whom the French government had chosen. Finally, it can be given by a man who, having made himself remarkable for his talent for observation, and for his exactitude in describing well what he has observed, has received from a people the special mission of describing the way in which things happen in the social order. I am very disposed to believe that the most renowned legislators of antiquity, to whom are attributed the creation of the laws that bear their name, did little more than give the description of already existing phenomena, and that what appeared to be new in their systems was but the expression of a revolution already accomplished in morals or in minds. In manifesting this opinion, I am far from wishing to belittle their merit; I think, on the contrary, that it is the greatest praise one can give them; if, instead of describing what they had observed, or of being the organs of a new need, they had consulted the dreams of their imagination, it is doubtful that their works would have been adopted and that their names would have come down to us.

If the facts that a law produces can be described only long after it has been established, they can also be, as I have just said, at the moment they are about to manifest themselves, that is, at the moment when a revolution is taking place in a people's way of existing, in the form of its government, or among the men who exercise some influence over it. It is even thus that things happen, since the use of writing has become general, and especially since the invention of printing. When a change has been effected in the mind or in the morals of the most powerful part of society, of that which exercises the strongest influence on the others, the phenomena that are about to be produced by this change are described by the individuals in whom it has been effected, or by those who consent to be their organs, and the description that is given of it becomes the representation of the immediate effects of the new law; it is the representation of the new way of being, in which the population is placed.

When one judges events only by appearances, one is disposed to believe that it is always governments or men invested with public authority who are the authors of laws, or who produce the various revolutions to which nations are subject. The reason for this is that it is always governments that describe, in the most solemn and authentic manner, the phenomena produced by the power of laws, and that declare the results of the changes that have been effected either in them, or in some parts of the population. But, when one examines attentively how things happen, one is soon convinced that governments themselves almost always submit to the laws they appear to dictate, and that, in the moments when they seem endowed with the greatest activity, they are but passive instruments obeying the impulse that has been given to them. The impulse sometimes comes from an individual who is invested with no authority; sometimes it comes from a small fraction of the population, sometimes from the entire mass of the people, and sometimes from a foreign people or government.

At a moment when all the nations of Europe traffic without scruple in men of color, an individual, for example, takes it into his head to maintain that the whites who reduce blacks to slavery violate the precepts of their religion, offend morality and humanity. This opinion, spread in society, engenders discussions there; minds become heated and divided, the defenders of liberty gain ground, and finally a voice is raised in a legislative assembly to demand that the slave trade be abolished. The men who govern, resist; they are supported, in the assembly and outside the assembly, by an imposing majority; the proposal is rejected. This defeat does not discourage the enemies of servitude; they continue to maintain their opinion; old age and death weaken or carry away the old ideas and vicious passions with the men who were infected by them; new generations, more enlightened, more just, more impartial, appear, and penetrate into the legislative assemblies, and even into the heart of the government; the number of the defenders of liberty multiplies; they are supported by newly formed or better-felt interests, and after a struggle of thirty years, they form the majority in the nation, in the legislative assemblies, and in the government; the old power yields, a new power reigns, and the trade is abolished. Here is a new movement impressed upon the population; a change effected in its way of being and proceeding; a new order of things, or, if one wishes, new laws. But who produced these laws? Did the men who govern create them, or did they submit to them? They may have described their material result; but, whether conviction was or was not brought into their minds, it is not they who produced them: they were the instrument of the revolution, they were not its cause. Now, if the impulse that has been given continues on to other peoples or other governments, the laws that will be its consequences will be submitted to far more than they will be made by them.I have taken for my example the establishment of laws salutary to the human race; but one can equally take the example of a baneful law. It will be as easy, in the latter case as in the preceding one, to prove that he who describes the material result of a law is not always its author.

Let us suppose that a people subject to an absolute government, whatever the external forms under which this government manifests itself, enjoys complete freedom of conscience; that each of the individuals of which it is composed can freely devote himself to the exercise of his creed, and manifest his opinions as they exist in his mind; let us suppose, finally, that there exist in the State, laws, that is, powers that guarantee such an order of things; some men, who aspire to make themselves masters of the population and of the government, wish to overthrow these laws and to establish new ones; they wish that there be in the State but a single doctrine, and that this doctrine be their own.

How will they go about it to overthrow the existing laws, and to establish new ones? Will they confine themselves to erasing a simple description contained in two or three lines, in which it is said that each professes his creed with the same liberty, and enjoys the same protection? They will know well that this description is not the power that constitutes law, and that, when this power has disappeared, it matters little whether the description of the results it produced remains or is erased. If they understand their interests, they will examine attentively what are the elements of which this power is composed; if the principal movement comes from a prince or his court, they will introduce themselves, like reptiles, into the interior of the palace. There, they will work in the shadows; they will endeavor to modify, if they can, the ideas and passions of grown men; they will seize control of the children above all, and will form their understanding in the manner most suitable to their views. The intelligence and passions of the most influential personages having been modified, they will use them to introduce into the courts of justice, into the administrations, into the armies, and especially into the educational institutions, men devoted to their interests; when they have thus become the masters of the material force that is at the disposition of the government, by seizing control of the principle that sets it in motion, the old laws will have, by that very fact, ceased to exist, although not a line of writing has been erased.

This revolution, in the elements of force or power of which a law is composed, will manifest itself by phenomena that will perhaps be described, but which could also remain without description. The law will manifest itself by penal dispositions against those whose opinions are proscribed; by their exclusion from public employments; by the establishment of tribunals charged with seeking them out and prosecuting them; by the encouragements given to informers; finally, by the exile, imprisonment, or execution of individuals guilty of not having the legal belief. If one then asks who are the authors of this new legislation, or, in other words, who were the legislators who appeared at such an epoch, where must one seek them? Must one see them in the men who will have described the newly established penalties, the forms to be observed in the prosecutions, the judgments, and the executions? No, certainly; these men will themselves have submitted to the yoke of the new power; they will have been but its instruments. The true legislators will be those obscure men, who, by dint of intrigue and suppleness, will have succeeded in modifying in the shadows the intelligence and the passions of a small number of individuals [72].

The principle that gives birth to bad laws can therefore be found outside the government, like that which gives birth to salutary laws; the one, like the other, can originate in a foreign country. The number of laws of which governments have been the authors is almost nothing in comparison to those they have submitted to, and of which they have confined themselves to describing the immediate results.

Since the art of writing has spread, since printing has given the means of multiplying the copies of a single text, and since governments have acquired regularity in their ways of proceeding, the principal material changes that operate in the social order, and which give a nation a new way of being, are described as they happen, and the description that records them has itself become a part of the law. But it is with this description as with that of most acts of civil life: births, marriages, deaths, exchanges, sales, donations, and all transmissions of property, are described in a more or less solemn manner as they happen; these descriptions serve to record the events that have happened, and to preserve their memory; but, if one ceased to describe these events, or to record them as they occur, would they exist any less? Would men cease to be born, to marry, to die, if there no longer existed civil registrars, or priests to record births, marriages, and deaths? Would they cease to make exchanges, sales, transmissions of property, if they did not know how to write, or if there existed no notary to describe or record their conventions or their wills? The lack of description of the events of civil life would doubtless entail grave inconveniences; but these events would happen nonetheless. It is the same with the revolutions or changes that the social order experiences; the laws would exist no less; they would be no less exposed to modifications, if the immediate results they produce were not described as they manifest themselves; but the lack of description would cause several disorders, especially in a state advanced in civilization. It is to avoid these disorders that several governments have had the material phenomena produced by the old customary laws described, and that all describe the phenomena that the new laws being established must produce.

I have said previously that legislation can be only a science of facts; this proposition is evident when one takes codes, books, writings, for what they really are: for simple descriptions. One then sees how a people can let itself be deceived, if it takes the description of the phenomenon that a law must produce, for a law; how a law can no longer exist, although the description of the material facts that were to be its immediate consequence has not been destroyed; how jurisconsults were right to say that a law perishes by non-use, that is, by the extinction of its power; and how one has so much trouble making a law pass from one country to another. But, if, instead of seeing the law in the facts, in the real state of society, one sees it only in the description, the science of legislation is no more than a science of words; it no longer furnishes matter for observation or for reasoning. One will be able, at most, to form collections of dogmas or precepts, but one will be unable to account for why one believes in the ones, or why one obeys the others [73].

Although the description of a law is not the same thing as the law described, one must be very careful not to believe that it is without importance. One will see on the contrary, that descriptions of this kind exercise a very extensive influence on nations: it is by them that legislation becomes a science, and that one succeeds in perfecting laws and in rendering their action more general and more regular. The books that describe diseases and the remedies that can make them cease are not the same thing as those diseases or those remedies; should one conclude from this that those of these books that contain the most exact descriptions are good for nothing?