The Works of the Right Honourable Edmund Burke, Vol. 03 (of 12)Burke, Edmund
History
The Works of the Right Honourable Edmund Burke, Vol. 03 (of 12)
Burke, Edmund
Great Britain -- Politics and government -- 1760-1820; Political science -- Early works to 1800
Your vesting the power of remonstrance, which, in the time of the
monarchy, existed in the Parliament of Paris, in your principal
executive officer, whom, in spite of common sense, you persevere in
calling king, is the height of absurdity. You ought never to suffer
remonstrance from him who is to execute. This is to understand neither
council nor execution, neither authority nor obedience. The person whom
you call king ought not to have this power, or he ought to have more.
Your present arrangement is strictly judicial. Instead of imitating your
monarchy, and seating your judges on a bench of independence, your
object is to reduce them to the most blind obedience. As you have
changed all things, you have invented new principles of order. You first
appoint judges, who, I suppose, are to determine according to law, and
then you let them know, that, at some time or other, you intend to give
them some law by which they are to determine. Any studies which they
have made (if any they have made) are to be useless to them. But to
supply these studies, they are to be sworn to obey all the rules,
orders, and instructions which from time to time they are to receive
from the National Assembly. These if they submit to, they leave no
ground of law to the subject. They become complete and most dangerous
instruments in the hands of the governing power, which, in the midst of
a cause, or on the prospect of it, may wholly change the rule of
decision. If these orders of the National Assembly come to be contrary
to the will of the people who locally choose those judges, such
confusion must happen as is terrible to think of. For the judges owe
their place to the local authority, and the commands they are sworn to
obey come from those who have no share in their appointment. In the mean
time they have the example of the court of _Châtelet_ to encourage and
guide them in the exercise of their functions. That court is to try
criminals sent to it by the National Assembly, or brought before it by
other courses of delation. They sit under a guard to save their own
lives. They know not by what law they judge, nor under what authority
they act, nor by what tenure they hold. It is thought that they are
sometimes obliged to condemn at peril of their lives. This is not
perhaps certain, nor can it be ascertained; but when they acquit, we
know they have seen the persons whom they discharge, with perfect
impunity to the actors, hanged at the door of their court.
The Assembly, indeed, promises that they will form a body of law, which
shall be short, simple, clear, and so forth. That is, by their short
laws, they will leave much to the discretion of the judge, whilst they
have exploded the authority of all the learning which could make
judicial discretion (a thing perilous at best) deserving the appellation
of a _sound_ discretion.
Public-domain text, read in full here on John Shaqi.
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