Walter Scott - Life of Napoleon Bonaparte. Volume III

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 92 Merchant of Venice, act iv., scene 1. 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 authority, which this compact of which we treat was to consolidate and sanction under its real name of Empire. Here, therefore, we close the argument; concluding the pretended vote of the French people to be totally null, both as regarding the subjects who yielded their privileges, and the emperor who accepted of their surrender. The former could not give away rights which it was not lawful to resign, the latter could not accept an authority which it was unlawful to exercise.

An apology, or rather a palliation of Buonaparte's usurpation, has been set up by himself and his more ardent admirers, and we are desirous of giving to it all the weight which it shall be found to deserve. They have said, and with great reason, that Buonaparte, viewed in his general conduct, was no selfish usurper, and that the mode in which he acquired his power was gilded over by the use which he made of it. This is true; for we will not under-rate the merits which Napoleon thus acquired, by observing that shrewd politicians have been of opinion, that sovereigns who have only a questionable right to their authority, are compelled, were it but for their own sakes, to govern in such a manner as to make the country feel its advantage in submitting to their government. We grant willingly, that in much of his internal administration Buonaparte showed that he desired to have no advantage separate from that of France; that he conceived her interests to be connected with his own glory; that he expended his wealth in ornamenting the empire, and not upon objects more immediately personal to himself. We have no doubt that he had more pleasure in seeing treasures of art added to the Museum, than in hanging them on the walls of his own palace; and that he spoke truly, when asserting that he grudged Josephine the expensive plants with which she decorated her residence at Malmaison, because her taste interfered with the prosperity of the public botanical garden of Paris. 93 93 Las Cases, tom. vii., p. 120. We allow, therefore, that Buonaparte fully identified himself with the country which he had rendered his patrimony; and that while it should be called by his name, he was desirous of investing it with as much external splendour, and as much internal prosperity as his gigantic schemes were able to compass. No doubt it may be said, so completely was the country identified with its ruler, that as France had nothing but what belonged to its Emperor, he was in fact improving his own estate when he advanced her public works, and could no more be said to lose sight of his own interest, than a private gentleman does, who neglects his garden to ornament his park. But it is not fair to press the motives of human nature to their last retreat, in which something like a taint of self-interest may so often be discovered. It is enough to reply, that the selfishness which embraces the interests of a whole kingdom, is of a kind so liberal, so extended, and so refined, as to be closely allied to patriotism; and that the good intentions of Buonaparte towards that France, over which he ruled with despotic sway, can be no more doubted, than the affections of an arbitrary father whose object it is to make his son prosperous and happy, to which he annexes as the only condition, that he shall be implicitly obedient to every tittle of his will. The misfortune is, however, that arbitrary power is in itself a faculty, which, whether exercised over a kingdom, or in the bosom of a family, is apt to be used with caprice rather than judgment, and becomes a snare to those who possess it, as well as a burden to those over whom it extends. A father, for example, seeks the happiness of his son, while he endeavours to assure his fortunes, by compelling him to enter into a mercenary and reluctant marriage; and Buonaparte conceived himself to be benefiting as well as aggrandizing France, when, preferring the splendour of conquest to the blessings of peace, he led the flower of her young men to perish in foreign fields, and finally was the means of her being delivered up, drained of her population, 94 94 "The Emperor constantly insisted on subjecting the whole nation to the laws of the conscription. 'The conscription,' he said, 'is the root of a nation, its moral purification, the real foundation of its habits. Organized, built up in this way, the French people might have defied the world, and might with justice have renewed the saying of the proud Gauls: 'If the sky should fall, we will keep it up with our lances.'" – Las Cases, tom. vii., p. 98. to the mercy of the foreign invaders, whose resentment his ambition had provoked.