PréFace

PREFACE

BY THE AUTHOR.

Men who write on the science of legislation may, in general, be divided into two great classes. Some, strangers to the practice and even to the study of the laws of any country, engage only in philosophical considerations. Others, on the contrary, confine themselves strictly to the practice of law, and do not rise to any general views. The result is that those who wish to study the law often find, in the writings of the former, nothing but speculations of no real utility; and in the writings of the latter, only dissertations fit to interest litigants or their lawyers.

Devoted from a very young age to the study and practice of law, but at the same time drawn by an irresistible inclination toward philosophical studies, I had for several years been occupied with a treatise on legislation when the Imperial government was overthrown. The twofold goal I set for myself was to introduce philosophical considerations into the study of law, and at the same time to bring the knowledge acquired in practice to bear upon the judgment of legislative or political theories. This method of verifying one by the other two things that had almost always been separate pleased me all the more as it was the only way to reconcile a profession I had chosen with an interest that had become a passion.

The revolution produced in France by the fall of the Imperial government, without changing the direction of my ideas in any way, determined me to choose a different mode of publication from the one I had first proposed. It seemed to me that by successively addressing the political or legislative issues of the moment, I would reach my goal more surely and more quickly. Ideas that have an immediate application to facts one witnesses strike the mind far more than ideas whose utility presents itself only in the distance. Moreover, the ability to express one's opinions publicly, which the last government had completely destroyed, was beginning to reappear, and it was urgent to take possession of it. For it is with liberty as it is with power: one runs a great risk of losing it if one does not know how to seize it the moment it presents itself.

But I was singularly mistaken when I thought it possible to make some progress in the science by separately treating the issues to which circumstances would give rise, and by publishing my opinions as they developed. Political discussions that touch upon the most keenly felt interests, and upon whose solution depends the fall or triumph of this or that party, do not leave the mind calm and free enough to bring to the search for truth that impartiality, that patience, that perseverance without which no progress is possible.

Questions that have little importance when considered in their relation to the whole of legislation appear to have a colossal importance when the spirit of partisanship takes hold of them; while others that are the foundation of the science remain unnoticed or seem unworthy of public attention if they are not closely enough connected to the interests of the moment. Thus, it is not very rare to see questions that have set entire peoples in motion fall shortly thereafter into deep oblivion, or be recalled only as testaments to the folly of men. It even seems that the most frivolous subjects have always had the privilege of agitating entire populations. Is there any philosophical question, however interesting to mankind, that has ever excited as much interest or been debated with more obstinacy than the spelling of some Greek word, or the rivalry of the charioteers of the Late Roman Empire?

Finally, when one treats questions only in the order in which political events present them, or in the order that the caprices of men momentarily invested with power are pleased to assign them, it is often impossible to treat them in a suitable manner; because, to resolve them, there are a multitude of others that one has never considered, and which would nevertheless need to have been thoroughly examined. There is nothing that suffers arbitrariness less than the exposition of the phenomena whose knowledge constitutes a science. If one does not put each thing in its proper place—that is, if one does not present the facts in the order in which they generate one another—not only is it impossible to perceive their connection, but one risks falling into numerous errors.

Thus, after spending six years addressing a multitude of diverse questions and publishing them in periodicals, I found myself no further advanced, relative to the principal goal I had set for myself, than I was at the beginning. It would have been as difficult for me to use the writings I had hitherto published to create a treatise on legislation as it would be for a painter to form a picture by assembling the various parts of the human body that he had painted in the course of his studies. Not only would there have been no connection in the order of ideas, not only would there have been no proportion between the parts; but, what is more serious, it would have been necessary to reproduce inaccurate theories, and at times superficial views [1].

The revolution that took place in the political powers in 1820, through the establishment of a new electoral law, the irritation of which this law was both the cause and the result, and the re-establishment of press censorship, having rendered all philosophical discussion impossible or unprofitable, I completely renounced dealing with issues of the moment and returned to my former project.

I had already been occupied with it for about fifteen months in Geneva, where I had retired, when the government of the canton of Vaud had me proposed to give a course on legislation at the academy of Lausanne. The regret of leaving a city where any man who wishes to devote himself to useful studies is sure to find resources of all kinds; where one finds, all things considered, more educated men and more intellectual activity than in any city in the world; where the spirit of partisanship has almost no influence on discussions, and where I could flatter myself to count numerous friends, made me hesitate greatly to accept the proposition made to me, however honorable it was; perhaps I would even have refused it, had I not been determined to accept it by the counsel of my friends.

The necessity of speaking to young men who, in truth, were free from prejudice, but whose minds were still little accustomed to philosophical studies, obliged me to put order, clarity, and simplicity into the exposition of my ideas. Obliged to present a very vast subject in the space of a few months, I feared I would not be understood, or would not sufficiently hold the attention of my audience. My fears seemed all the more well-founded as there were many prejudices against the students to whom I had to speak. I was very pleasantly mistaken: it was not possible to find young men more attentive, more zealous in seeking the truth, more quick to grasp it.

This exercise, which lasted two years, not only did not divert me from my work, but obliged me to labor at it more consistently and to judge my own opinions with greater severity. Any man who publishes his judgments is doubtless under the obligation to say nothing that could be disavowed by his conscience; but he who presents his ideas before young people whose instruction is entrusted to him has far more rigorous duties to fulfill. The errors of the former can be refuted by writers who do not share his opinions; if he is mistaken, he at least betrays no one's confidence. But it is not the same with the errors of the latter: those to whom they are addressed can often neither judge them nor defend themselves against them.

The aggression then directed against the constitutional government of Spain struck terror into all those whose existence was founded on the consent of the people, and not on divine right. The diplomatic notes addressed, on this occasion, to the various governments of Switzerland concerning the foreigners on their territory, appeared to be the prelude to a more serious attack. Knowing how easy it is for power to cover the gravest assaults under the most frivolous and often even the most ridiculous pretexts, I resigned my duties and withdrew to England. It is there that, for two years, I have continued to work on the book of which I today publish the first volume. I have tried never to stray from the object I had proposed for myself; I have, as much as was possible for me, sought to found theory upon the exact observation of facts.

If one were to judge this work solely by the first title I give it, one might perhaps form a false idea of it. In general, any person who opens a Treatise on Legislation hopes to find in it rules on the art of making laws or at least of interpreting them. This is not how I have considered the science: I did not wish to trace out rules or duties, but simply to explain the nature of things. I would have renounced the first title, had I found a more suitable word; finding none more proper to render my thought, I have tried to explain it with a second title: only the latter truly explains the object of this work.

It has several times happened that I have found myself opposed in opinion to men who have rendered great services to the human mind, and whose talents and character I honor. I have contested their thoughts when they have seemed to me to lack exactness; but without failing to recognize the services they have rendered, nor the purity of the motives that animated them. It is scarcely any but the errors of men of talent that deserve to be contested; the others pass without having made an impression and often even without being noticed. Besides, opinions are ours only insofar as we judge them to be well-founded; they cease to belong to us the instant their error appears demonstrated to us.

In publishing a single volume of a considerable work, all of whose parts are intimately linked, one necessarily weakens the effect of the whole. But if, when writing a book, one is obliged to consult only the interests of truth, one is obliged to consult as well, when publishing it, the interests and conveniences of the publishers. The readers will have little to lose, moreover, from this separation; I dare believe that I have said nothing in this volume that cannot be perfectly understood without the help of those that are to follow. The most serious inconvenience that could result, for them, from a partial publication, would be not to see the numerous consequences to which the truths I have developed lead.

In the first part of this volume, I have explained the method to be followed in the study of the moral sciences, the disadvantages that result from a flawed method, and the errors to which the most celebrated writers who have established false systems have been led. I have treated, in the second part, of the nature of laws, of the various elements of power of which they are composed, of the manner in which they are formed, modified or destroyed, and of the manner in which they affect men. This volume can be considered, in a way, as forming the logic of legislation and morality. Composed principally for young people, it is to young people that it is destined; for it is only they for whom new truths are profitable.

Having set forth in this volume the general foundations of reasoning, I will provide the substance in the following volumes.

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