It is certain that the Estates-General will not be able to do much good unless it has a great deal of power. To find out how much power it should be entitled to have, there is no point either in consulting that swarm of mandated officials whose opinions and beliefs will be those of their place and whose places are part of the established routine of getting things done, or in consulting those self-important inhabitants of the anterooms of power whose all-too-honorable lives have been devoted to begging, hating, and intriguing against that very same people which then has to pay for their haughty mendicancy. To listen to them, one might just as well think “the Estates-General exists simply to supply money.(*) Should it also need to be consoled by having an opportunity to draw up a list of grievances, this is purely a matter of form.(**) In fact, it will be no more than a list of last wishes.”
A nation with a right to offer both money and grievances must as- suredly be a worthy one! Can it really be credited that the Estates-General alone has a right to complain? Or is it to be assumed that the complaints of a dispersed people do not deserve to be heard? Or does this mean that an assembled nation can do no more than any private individual?
To get to the heart of things we need, first, to establish an idea of the end and purposes of all legislation and of the two parts that make legisla- tion essentially what it is.
The liberty of the citizen consists in an assurance of not being hin- dered or interfered with in the exercise of his personal property or in the use of his real property.
The liberty of the citizen is the sole end of every law. Every law should be related to that end, either directly (and this amounts to civil legislation) or indirectly (and this amounts to those laws that concern the govern- ment). Our aim is to show that the Estates-General has the right to make laws falling under both these different points of view.
alone. What, at bottom, does granting a tax mean? It means that each cit-
izen is obliged to cede a part of his property to maintain the public estab- lishment. What makes a law lawful is that it creates in those it affects a moral obligation to be subject to its provisions. Tax officers can certainly pursue the taxpayer who is subject to the law. Public force can certainly assure its execution. But the law is not the work of either the tax officers or public force. It is instead the manifest will of whoever has a right to es- tablish a duty. If therefore it is a recognized principle that only a nation can oblige a taxpayer, it follows as an immediate principle—and one that ought to be recognized too—that this part of the legislative power be- longs to the Estates-General.
But if it is assumed that the nation could never have transferred the privilege of disposing of even the tiniest portion of its real property to some master, how can it be imagined that it could ever voluntarily have branded itself with the most pronounced and shameful mark of servility by renouncing its personal property, the first and most basic of all rights and goods, without which all others are merely illusory? It is inconceiv- able that anyone who had reserved the right to dispose of his real goods could then have renounced his ownership of his person. To do so would be an act of madness.
These two arguments are already enough to prove that the power of the Estates-General must encompass all the laws concerning the two kinds of property belonging to every citizen. But there is more to follow. We all know that in the most barbarous age of the monarchy laws of every kind were decreed by or with the people’s consent. Nonetheless, since administrators at that time were less ignorant than the people, it is easy to see why the larger influence that they then might have had could often have been compatible with the general interest. Today, the nation is not just worth more than it once was but is also more enlightened than the government. Should this be a reason to assume that it should be re- duced to infinitely more narrow bounds in the exercise of its rights?
We take it to be a maxim that there are no slaves in France. The twenty-five million individuals who inhabit the kingdom are free. How then can it be conceivable that the nation is not? If slavery cannot be im- posed upon any particular head, how then can it possibly apply to them all? In general, any citizen deprived of the right to consult his own inter- ests, to deliberate, and to impose laws upon himself is rightly taken to be a serf. It follows that the right to consult its own interests, to deliberate, and to impose laws upon itself must necessarily belong to the nation.
To pursue this important question further, examine the nature of leg- islative power in itself and consider in what it has consisted among any more or less populous people.
As has just been said, every man has an inherent right to deliberate and will for himself, to impose obligations upon himself, to engage him- self towards others, and therefore to impose laws upon himself. Consider this man—first of all outside any association—at the moment when he wants to form an association with other individuals. Here relations inter- nal to the family can be set aside. In a subject like this it is necessary to simplify as much as possible. Even if the basic elements of the association were not simple individuals but the heads of families, this, for the time being, is perfectly admissible. This is not the place to discuss this question now. Here what matters are those members of the union who can be taken to be its integral parts—namely, those admissible as contracting parties—and what has to be said here is that there cannot be any other relationship between them than one based upon a free act of each indi- vidual’s will.
Either one wills freely or one is forced to will; there cannot be any middle position. In the first case there is a real engagement emanating from its true source because, as has just been said, every man is taken to be able to will for himself. Will and intelligence are two faculties attached by nature to men’s constitution to enable them to follow the path that she has laid out before them. Each of these two faculties is as inalienable as the other. Every individual has to make himself the subject of his own engagements and obligations towards others. Only his own will can give his engagement the character of a moral obligation. Outside of it there cannot be anything other than the empire of the strong over the weak and its odious consequences. But that empire can never have any moral force. It is, if the image is allowable, no more than a kind of mechanical compression, which produces an effect but not an obligation or, if there is an obligation that this violent principle is capable, if not of producing, at least of awakening and exciting in the breasts of the weak, it is the natu- ral and sacred duty to resist oppression without remission and to use every possible means to escape its thrall.
Thus when a number of individuals come to be united by a social en- gagement, the only principle underlying that engagement is a free act of the will. A man can offer and exchange one thing for another or one en- gagement for another. Anything among men can be a matter of ex- change, and in any act of exchange there is necessarily, both on one side and the other, a free act of the will. No man has a right to dominate an- other’s will. The opposite maxim would open a door to every crime, every horror and to the annihilation of every right.
This is sufficient insistence upon this truth. But it is one that is so es- sential and so fundamental that it has to be insisted upon. It means that the only basic element from which the laws can be composed is the indi-
vidual will and that a legitimate association can have no other basis than the will of its associates.
Once we suppose that an association exists, it has to have the freedom to will and to engage itself either with other associations, with its own members, or with individuals belonging to other countries. There has to be a common will to meet common needs. That will must naturally be the general product of all the individual wills and the very first common will of a number of men who might be supposed to have united to form a po- litical society would without doubt have been exactly the sum of all the individual wills. But to require for the future that the common will should always be the exact sum of every individual will would amount to giving up the possibility of being able to will in common and would mean the dissolution of the social union. It was therefore absolutely nec- essary to recognize all the characteristics of the common will in an agreed majority. But do not believe that with this kind of convention society is at bottom governed merely by a will that is incomplete. Every citizen, by his act of adherence to the union, makes a continuous engagement to see himself as bound by the majority view even when his own will forms part of the minority. He submits himself in advance, it should be emphasized, by a free act of his own will, reserving only the right to leave the associa- tion and to emigrate if the laws that it makes do not suit him. In this way, continuous residence amounts to a voluntary acceptance of the majority will or a tacit, but positive, confirmation of that initial engagement by which he subjected himself in advance to the duty of seeing the common will as his own. But however it may be formed, the common will cannot consist of anything other than the citizens’ individual wills. It is this and this alone that entitles it to establish a genuinely binding obligation for all—and to make law for the whole community.
But we need to press further and see how an increase in the number of associates has to give rise to new modifications in the legislative power.
As the number of citizens increases it becomes difficult or impossible for them to assemble to hear each individual will and then reconcile their differences to form a general will. This makes it necessary to divide the community into a number of districts. Each division then has to entrust some members of the association with a vote to be carried to a common
meeting place. But it soon becomes clear that delegating a number of sim-
ple vote carriers is essentially vicious, because those selected as deputies, obliged to adhere scrupulously to the commission of those who man- dated them, often find themselves unable to agree, making it impossible to extract a common will from the totality of votes. But there has to be a
common will and any means that fails to produce one has to be radically
form them of what has happened, to wait for new instructions and then begin the whole process all over again for as long as no common accord between different views can be found, it comes to be obvious that mat- ters will never end, that the public interest will suffer, and that by trying to keep the use of its will under its direct control, the general mass of as- sociates has actually deprived itself of the ability to use its will at all.
There are further disadvantages to this method. These cannot all be set out here. Suffice it now to point out one that is capable of nullifying every deliberation. In this, what seems to be an apparent majority makes it impossible to establish a genuine majority. This makes it impossible to make law based on a genuine common will. This vice is connected to the practice of counting votes by sections and not by the number of individ- uals party to the deliberation as a whole. We will elaborate on this truth in the second part of this work, where it is more appropriate.
All this leads the community to give its mandatories more confidence. It gives them a proxy enabling them to meet, to deliberate, to reconcile their views, and to come to a common will, so that it now has genuine representatives instead of simple vote carriers. Note however (since these truths should always be kept in mind) that the mission given to these rep- resentatives never involves a formal surrender of the community’s original power. It is one that is essentially at the liberty of the delegating power, is constantly revocable, and is limited, at the will of those making the dele- gation, both in time and in subject matter.
From the moment that the community comes to be divided into dis- tricts, the part played by each individual will in the legislative power is less direct. But that power cannot have any other origin or any other con- stituent element. This is not the place to describe all the nuances involved in this new state of affairs. But one simple observation is still necessary. If each district is to nominate its own representatives separately and has no involve- ment in selecting those of the other divisions, it would seem, on the basis of the principles outlined here, that it ought to recognize only the work of the majority of its own representatives and not the work of the whole body of representatives as the basis of law. It would then seem to follow that every division would have a liberum veto on every other, and it does not need to be said that a right of this nature would make it impossible for a legislative body to carry out its functions. Nothing is more true. A right like this would be genuinely antipolitical and cannot be recognized. In- stead, what has to be kept as a maxim is the principle that each deputy rep- resents the whole association. No one would be inclined to dispute this truth if the whole community were able to meet to nominate the whole body of its representatives. But the same applies here. Since the totality of citizens either cannot, or will not, assemble together in a single place, the
totality has to be divided into districts and each district has, by agreement, to nominate a proportional number of deputies. To perform this decentral- ized election, all the districts have, reciprocally, to authorize and entrust their affairs to one another and, by doing so, make the election the work of the whole community. There is therefore no difficulty. The legislative power is always the product of the generality of individual wills.
A large and populous people is even less able to exercise its common will, or legislature, itself. It has therefore to nominate representatives en- trusted to will on its behalf, and it cannot be said that the common will of these representatives does not make genuine law or law which applies to everyone.
It can be seen therefore that any nation which is able to form a com- mon will by means of representatives invested with authenticated powers is able to exercise the full extent of the legislative power.
There is no point in invoking a so-called contract between a people and its master by which the former surrendered the right to will by the very first act of their will. A collection of men is no more able to give up the faculty of deliberating and willing in its own interest than an ordinary private individual. What could be the price or purpose of such an under- taking? If it is said to be for protection, how can a single man protect a whole nation? It alone contains that salutary power. Nothing else does. When a nation gives one of its members responsibility for using that salu- tary power, all of whose elements, combinations, and direction it sup- plies, it does not contract. It delegates. There is no engagement but a delegation at will.
But it is a mistake to reply in advance to arguments like these. It is now an established fact that no man can be another man’s slave. A moral act that would destroy all morality cannot be binding. Even if some unhappy creatures could still be found who were willing to devote their whole lives to this final degree of baseness, their example would still have no ef- fect on their descendants. What cannot be willed for oneself cannot be willed for others. It is always necessary to return to the essence of what makes a free will to identity the sole source from which, directly or indi- rectly, all the laws imposing a genuine obligation upon a man derive. Thus since the national will is the product of every individual will, the legislative power belongs to the nation, necessarily and in all its fullness. The only thing that can be set above it is natural law that, far from con- tradicting it, serves rather to enlighten and guide it towards the great end of the social union.
Our opponents will not like the force of the evidence that follows so readily from a simple consideration of the nature of things. They would prefer to remind us of the thousand and one facts and the thousand and one
hypothetical occurrences in which the social will has been silent. There must, they would say, have been some other way to make up for its silence. But what does it matter to us how it might have been possible to cater