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target="_blank" rel="nofollow" href="#n88" type="note">88

      The very day before the ceremony of coronation, (that is, on the 1st of December,) the Senate had waited upon the Emperor with the result of the votes collected in the departments, which, till that time, had been taken for granted. Upwards of three millions five hundred thousand citizens had given their votes on this occasion; of whom only about three thousand five hundred had declared against the proposition. The vice-president, Neufchateau, declared, "this report was the unbiassed expression of the people's choice. No government could plead a title more authentic."89

      This was the established language of the day; but when the orator went farther, and mentioned the measure now adopted as enabling Buonaparte to guide into port the vessel of the Republic, one would have thought there was more irony than compliment in the expression.

      Napoleon replied, by promises to employ the power which the unanimous consent of the Senate, the people, and the army, had conferred upon him, for the advantage of that nation which he himself, writing from fields of battle, had first saluted with the title of the Great. He promised, too, in name of his Dynasty, that his children should long preserve the throne, and be at once the first soldiers in the army of France, and the first magistrates among her citizens.90

      As every word on such an occasion was scrupulously sifted and examined, it seemed to some that this promise, which Napoleon volunteered in behalf of children who had as yet no existence, intimated a meditated change of consort, since from his present Empress he had no longer any hope of issue. Others censured the prophetic tone in which he announced what would be the fate and conduct of unborn beings, and spoke of a reign, newly commenced, under the title of a Dynasty, which is usually applied to a race of successive princes.

      THE IMPERIAL CONSTITUTION.

      We pause for a moment to consider the act of popular accession to the new government; because there, if any where, we are to look for something like a legal right, in virtue of which Napoleon might claim obedience. He himself, when pleading his own cause after his fall, repeatedly rests his right to be considered and treated as a legitimate monarch, upon the fact, that he was called to the crown by the voice of the people.91

      We will not stop to inquire how the registers, in which the votes of the citizens were enrolled, were managed by the functionaries who had the charge of them; – it is only necessary to state in passing, that these returning officers were in general accessible to the influence of government, and that there was no possibility of instituting any scrutiny into the authenticity of the returns. Neither will we repeat, that instead of waiting for the event of the popular vote, he had accepted of the empire from the Senate, and had been proclaimed Emperor accordingly. Waving those circumstances entirely, let it be remembered, that France is usually reckoned to contain upwards of thirty millions of inhabitants, and that three millions five hundred thousand, only gave their votes. This was not a third part, deducing women and children, of those who had a title to express their opinion, where it was to be held decisive of the greatest change which the state could undergo; and it must be allowed that the authority of so limited a portion of the people is far too small to bind the remainder. We have heard it indeed argued, that the question having been formally put to the nation at large, every one was under an obligation to make a specific reply; and they who did not vote, must be held to have acquiesced in the opinion expressed by the majority of such as did. This argument, being directly contrary to the presumption of law in all similar cases, is not more valid than the defence of the soldier, who, accused of having stolen a necklace from an image of the Virgin, replied to the charge, that he had first asked the Madonna's permission, and, receiving no answer, had taken silence for consent.

      In another point of view, it must be remembered that this vote, by which Napoleon claimed the absolute and irredeemable cession of the liberties of France in his favour, was not a jot more solemn than those by which the people had previously sanctioned the Constitutional Monarchy of 1791, the Republic of 1792, the Directory of 1795, and the Consular Government of 1799. Now, either the vote upon all those occasions was binding and permanent, or it was capable of being denied and recalled at the pleasure of the people. If the former was the case, then the people had no right, in 1804, to resume the votes they had given, and the oaths they had sworn, to the first form of government in 1791. The others which they sanctioned in its stead, were in consequence, mere usurpations, and that now attempted the most flagrant of all; since three constitutions, each resting on the popular consent, were demolished, and three sets of oaths broken and discarded, to make room for the present model. Again, if the people, in swearing to one constitution, retained inalienably the right of substituting another whenever they thought proper, the imperial constitution remained at their mercy as much as those that preceded it; and then on what could Buonaparte rest the inviolability of his authority, guarded with such jealous precaution, and designed to descend to his successors, without any future appeal to the people? The dynasty which he supposed himself to have planted, was in that case not the oak-tree which he conceived it, but, held during the good pleasure of a fickle people, rather resembled the thistle, whose unsubstantial crest rests upon the stalk only so long as the wind shall not disturb it.

      But we leave these considerations; nor do we stop to inquire how many, amid the three millions and upwards of voters, gave an unwilling signature, which they would have refused if they had dared, nor how many more attached no greater consequence to the act than to a piece of formal complaisance, which every government expected in its turn, and which bound the subject no longer than the ruler had means to enforce his obedience. Another and more formidable objection remains behind, which pervaded the whole pretended surrender by the French nation of their liberties, and rendered it void, null, and without force or effect whatever. It was, from the commencement, what jurists call a pactum in illicito: – the people gave that which they had no right to surrender, and Buonaparte accepted that which he had no title to take at their hands. In most instances of despotic usurpation – we need only look at the case of Cæsar – the popular party have been made the means of working out their own servitude; the government being usurped by some demagogue who acted in their name, and had the art to make their own hands the framers of their own chains. But though such consent on the part of the people, elicited from an excess of partial confidence or of gratitude, may have rendered such encroachments on the freedom of the state more easy, it did not and could not render it in any case more legal. The rights of a free people are theirs to enjoy, but not theirs to alienate or surrender. The people are in this respect like minors, to whom law assures their property, but invests them with no title to give it away or consume it; the national privileges are an estate entailed from generation to generation, and they can neither be the subject of gift, exchange, nor surrender, by those who enjoy the usufruct or temporary possession of them. No man is lord even of his person, to the effect of surrendering his life or limbs to the mercy of another; the contract of the Merchant of Venice would now be held null from the beginning in any court of justice in Europe. But far more should the report of 1804, upon Buonaparte's election, be esteemed totally void, since it involved the cession on the part of the French people of that which ought to have been far more dear to them, and held more inalienable, than "the pound of flesh nearest the heart,"92 or the very heart itself.

      As the people of France had no right to resign their own liberties, and that of their posterity, for ever, so Buonaparte could not legally avail himself of their prodigal and imprudent cession. If a blind man give a piece of gold by mistake instead of a piece of silver, he who receives it acquires no legal title to the surplus value. If an ignorant man enter unwittingly into an illegal compact, his signature, though voluntary, is not binding upon him. It is true, that Buonaparte had rendered the highest services to France by his Italian campaigns in the first instance, and afterwards by that wonderful train of success which followed his return from Egypt. Still the services yielded by a subject to his native land, like the duty paid by a child to a parent, cannot render him creditor of the country, beyond the amount which she has legal means of discharging. If France had received the highest benefits from Buonaparte, she had in return raised him as high as any subject could be advanced, and had, indeed, in her reckless prodigality of gratitude, given, or suffered him to assume, the very despotic

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