The French Revolution and the organization of justice

Notes of Bergasse

  • [1] I wish to explain here what I mean by the arbitrariness of the police. There must never be anything arbitrary in the punishments imposed by the police; in this regard, as in other parts of the administration of justice, the law must provide for and determine everything. But the precautions the police are required to take to keep the peace necessarily contain, up to a point, something arbitrary, as do the acts of surveillance over individuals and things, and it is necessary to permit this.

  • [2] That is to say by the representatives of the people.

  • [3] Before going further, it should be noted here that there are only two ways to reject this project. Either it must be proved that the principles just expounded are wrong or it must be proved that the following articles are not in accordance with those principles.

  • [4] Among the articles set out below are some that belong more to the legislation than to the constitution of the courts; but since they essentially relate to public order and they are also directly derived from principles that have just been developed, we thought they should be added here, subject to assigning them to their proper place when the finishing touches are made to the work on the Constitution.

  • [5] Hence the reimbursement of all judicial offices and because it would be profoundly unjust for the holders of these offices to be ruined in the re-establishment of public order, hence the reimbursement of judicial offices not only on the basis of the actual revenues derived therefrom, as has sometimes been suggested, but on the basis of the purchase contracts. This fact must not be hidden: the State has never been in a less favourable position than it is in today to provide such reimbursement, and when it is a question of making such payments, it will only be with the greatest difficulty that this can be reconciled with what is owed to individual property with what is required by public need. However, reform of the judicial system is absolutely essential.

  • [6] Since the tax authorities collect on the basis of various pleadings duties that unfortunately form a substantial part of the public revenue, it will be necessary to ensure that these duties are repealed and that replacements are provided in a way that is less burdensome for the people.

  • [7] It is possible that in reforming the Civil Code, and especially the civil law, we shall find that it is possible to introduce trial by jury into civil proceedings, as we proposed to do in criminal cases. We should then succeed in reducing further the number of judges, and if it is true that in a well-ordered State there must be very few judges and few laws, we should then come closer to the system of a good constitution.

  • [8] In these final articles, it will be seen that it is only when provincial states and municipalities have been created - something that should be done immediately - that we can complete everything relating to judicial power. This should not come as a surprise, because all parts of a constitution hang together. If each part needs to be worked on separately, it would be prudent not to adopt any one part definitively until it is possible to examine all of them and until the interplay, so to speak, between them has been seen. Only then would we truly understand the different relationships, and it would become possible, when they are compared with one another, to improve some by means of others and thus to give the Constitution the unity of principles and results that alone give it its strength and its continuity.