[237] On the danger of seeking at first the origin of human knowledge, see 1st Series, vol. iii., lecture on Hobbes, p. 261: "Hobbes is not the only one who took the question of the origin of societies as the starting-point of political science. Nearly all the publicists of the eighteenth century, Montesquieu excepted, proceed in the same manner. Rousseau imagines at first a primitive state in which man being no longer savage without being yet civilized, lived happy and free under the dominion of the laws of nature. This golden age of humanity disappearing carries with it all the rights of the individual, who enters naked and disarmed into what we call the social state. But order cannot reign in a state without laws, and since natural laws perished in the shipwreck of primitive manners, new ones must be created. Society is formed by aid of a contract whose principle is the abandonment by each and all of their individual force and rights to the profit of the community, of the state, the instrument of all forces, the depository of all rights. The state, for Hobbes, will be a man, a monarch, a king; for Rousseau, the state is the collection itself of citizens, who by turns are considered as subjects and governors, so that instead of the despotism of one over all, we have the despotism of all over each. Law is not the more or less happy, more or less faithful expression of natural justice; it is the expression of the general will. This general will is alone free; particular wills are not free. The general will has all rights, and particular wills have only the rights that it confers on them, or rather lends them. Force, in The Citizen is the foundation of society, of order, of laws, of the rights and duties which laws alone institute. In the Contrat Social, the general will plays the same part, fulfils the same function. Moreover, the general will scarcely differs in itself from force. In fact, the general will is number, that is to say, force still. Thus, on both sides, tyranny under different forms. One may here observe the power of method. If Hobbes, if Rousseau especially had at first studied the idea of right in itself, with the certain characters without which we are not able to conceive it, they would have infallibly recognized that if there are rights derived from positive laws, and particularly from conventions and contracts, there are rights derived from no contract, since contracts take them for principles and rules; from no convention, since they serve as the foundation to all conventions in order that these conventions may be reputed just;—rights that society consecrates and develops, but does not make,—rights not subject to the caprices of general or particular will, belonging essentially to human nature, and like it, inviolable and sacred."
[238] 1st Series, vol. iii., p. 265: "What!" somewhere says Montesquieu, "man is everywhere in society, and it is asked whether man was born for society! What is this fact that is reproduced in all the vicissitudes of the life of humanity, except a law of humanity? The universal and permanent fact of society attests the principle of sociability. This principle shines forth in all our inclinations, in our sentiments, in our beliefs. It is true that we love society for the advantages that it brings; but it is none the less true, that we also love it for its own sake, that we seek it independently of all calculation. Solitude saddens us; it is not less deadly to the life of the moral being, than a perfect vacuum is to the life of the physical being. Without society what would become of sympathy, which is one of the most powerful principles of our soul, which establishes between men a community of sentiments, by which each lives in all and all live in each? Who would be blind enough not to see in that an energetic call of human nature for society? And the attraction of the sexes, their union, the love of parents for children,—do they not found a sort of natural society, that is increased and developed by the power of the same causes which produced it? Divided by interest, united by sentiment, men respect each other in the name of justice. Let us add that they love each other in virtue of natural charity. In the sight of justice, equal in right, charity inspires us to consider ourselves as brethren, and to give each other succor and consolation. Wonderful thing! God has not left to our wisdom, nor even to experience, the care of forming and preserving society,—he has willed that sociability should be a law of our nature, and a law so imperative that no tendency to isolation, no egoism, no distaste even, can prevail against it. All the power of the spirit of system was necessary in order to make Hobbes say that society is an accident, as an incredible degree of melancholy to wring from Rousseau the extravagant expression that society is an evil."
[239] 1st Series, vol. iii., p. 283: "We do not hold from a compact our quality as man, and the dignity and rights attached to it; or, rather, there is an immortal compact which is nowhere written, which makes itself felt by every uncorrupted conscience, that compact which binds together all beings intelligent, free, and subject to misfortune, by the sacred ties of a common respect and a common charity.... Laws promulgate duties, but do not give birth to them; they could not violate duties without being unjust, and ceasing to merit the beautiful name of laws—that is to say, decisions of the public authority worthy of appearing obligatory to the conscience of all. Nevertheless, although laws have no other virtue than that of declaring what exists before them, we often found on them right and justice, to the great detriment of justice itself, and the sentiment of right. Time and habit despoil reason of its natural rights in order to transfer it to law. What then happens? We either obey it, even when it is unjust, which is not a very great evil, but we do not think of reforming it little by little, having no superior principle that enables us to judge it,—or we continually change it, in an invincible impotence of founding any thing, by not knowing the immutable basis on which written law must rest. In either case, all progress is impossible, because the laws are not related to their true principle, which is reason, conscience, sovereign and absolute justice."
[241] See 4th Series, vol. i., p. 40.
[242] See our pamphlet entitled Justice and Charity, composed in 1848, in the midst of the excesses of socialism, in order to remind of the dignity of liberty, the character, bearing, and the impassable limits of true charity, private and civil.
[243] See on the theory of penalty, the Gorgias, vol. iii. of the translation of Plato, and our argument, p. 367: "The first law of order is to be faithful to virtue, and to that part of virtue which is related to society, to wit, justice; but if one is wanting in that, the second law of order is to expiate one's fault, and it is expiated by punishment. Publicists are still seeking the foundation of penalty. Some, who think themselves great politicians, find it in the utility of the punishment for those who witness it, and are turned aside from crime by fear of its menace, by its preventive virtue. And that it is true, is one of the effects of penalty, but it is not its foundation; for punishment falling upon the innocent, would produce as much, and still more terror, and would be quite as preventive. Others, in their pretensions to humanity, do not wish to see the legitimacy of punishment except in its utility for him who undergoes it, in its corrective virtue,—and that, too, is one of the possible effects of punishment, but not its foundation; for that punishment may be corrective, it must be accepted as just. It is, then, always necessary to recur to justice. Justice is the true foundation of punishment,—personal and social utility are only consequences. It is an incontestable fact, that after every unjust act, man thinks, and cannot but think that he has incurred demerit, that is to say, has merited a punishment. In intelligence, to the idea of injustice corresponds that of penalty; and when injustice has taken place in the social sphere, merited punishment ought to be inflicted by society. Society can inflict it only because it ought. Right here has no other source than duty, the strictest, most evident, and most sacred duty, without which this pretended right would be only that of force, that is to say, an atrocious injustice, should it even result in the moral profit of him who undergoes it, and in a salutary spectacle for the people,—what it would not then be; for then the punishment would find no sympathy, no echo, either in the public conscience or in that of the condemned. The punishment is not just, because it is preventively or correctively useful; but it is in both ways useful, because it is just." This theory of penalty, in demonstrating the falsity, the incomplete and exclusive character of two theories that divide publicists, completes and explains them, and gives them both a legitimate centre and base. It is doubtless only indicated in Plato, but is met in several passages, briefly but positively expressed, and on it rests the sublime theory of expiation.
[244] As it is perceived, we have confined ourselves to the most general principles. The following year, in 1819, in our lectures on Hobbes, 1st Series, vol. iii., we gave a more extended theory of rights, and the civil and political guaranties which they demand; we even touched the question of the different forms of government, and established the truth and beauty of the constitutional monarchy. In 1828, 2d Series, vol. i., lecture 13, we explained and defended the Charter in its fundamental parts. Under the government of July, the part of defender of both liberty and royalty was easy. We continued it in 1848; and when, at the unexpected inundation of democracy, soon followed by a passionate reaction in favor of an absolute authority, many minds, and the best, asked themselves whether the young American republic was not called to serve as a model for old Europe, we did not hesitate to maintain the principle of the monarchy in the interest of liberty; we believe that we demonstrated that the development of the principles of 1789, and in particular the progress of the lower classes, so necessary, can be obtained only by the aid of the constitutional monarchy,—6th Series, Political Discourses, with an introduction on the principles of the French Revolution and representative government.
[246] Such is the common vice of nearly all theodiceas, without excepting the best—that of Leibnitz, that of Clarke; even the most popular of all, the Profession de Foi du Vicaire Savoyard. See our small work entitled Philosophie Populaire, 3d edition, p. 82.