Rights in the Family
Appendix 10. (1411).
An observation will not be out of place, although it does not directly concern domestic Right. The natural foundation of any wise, political constitution must include total separation between the administration and the judiciary. This principle has been religiously observed in the Austrian dominions.
The administration is normally composed of interested parties; here the power must be divided according to ownership (the social contribution). The judiciary is normally composed of the most disinterested and just men available; here the most impartial and virtuous judges must be chosen, whatever class they belong to, rich or poor. This is the notion that we shall endeavour to put in its fullest light in Della naturale costruzione della società civile, which will form the second volume of the Philosophy of Politics [Society and its Purpose].
As far as I can see, these two principles have not been followed rigorously in any of the many political Constitutions that have been made, or rather improvised, in our days. The distinction, however, should be thought through carefully by indiscriminate supporters of a universal vote. It is, in fact, strange that where the theory of universal franchise is more loudly mooted, less care is taken to form tribunals composed of persons without any private interest in the matters they judge. The trial provoked by Cosnard's will is one of the many proofs of this, at least as far as France is concerned. The appeal court had no shame in pronouncing the inhuman, immoral and unnatural decision that we have indicated: it ordered the sale of a mother for the sake of enriching her daughter, and the sale of a sister for the same purpose. This tribunal was composed of six judges, five of whom were Creoles, owners of slaves and consequently judges and interested parties in the litigation (cf. l'Univers, 16th October 1842).
Let us look for a moment at another, greater trial which concerns the abolition of slavery in the French colonies. If we look closely at this matter, which is concerned not with vindicating but finally bringing to an end millions of cruel, impious injustices against millions of people, we shall learn how, generally speaking, a person with vested interests is a wicked judge, to be eliminated from tribunals and committees destined to decide matters of right. This is especially the case when self-interest is bound up with immorality.
In our case, the colonial Councils have always decided against emancipation in their representations to the metropolitan government. These opinions, relative to the French colonies, can be found in the Report (already quoted) of the Duke de Broglie to the Minister, the Secretary of State for Marine and Colonial Affairs. The document is extremely significant and instructive.
| In July, 1840, it (the government) appealed ONCE MORE to the colonial councils, asking again for the help of their light and experience, while insisting that this appeal would be the last. The colonial Councils may have thought that until the present they have been consulted for the sole purpose of allowing their difficulties to bring to a halt any plan for emancipation. If so, they should recognise that their systematic opposition will be useless today against a government which declares that the moment has come to occupy itself with the abolition of slavery in our colonies. It is regretted that this language has not been better understood. The colonial Council of Martinique replied, in its sitting of 2nd March 1841, with a formal protest, stating their opposition in principle against any emancipation whatsoever at any time and asserting that the metropolitan authority had no right in the matter. The colonial Council of Guadeloupe, without going so far on the last point, and without expressly contesting the rights of the metropolitan legislature, nevertheless was bold enough to proclaim, in its sittings of 23rd and 24th December 1840, the necessity of maintaining indefinitely the benefaction of slavery (this is the term used in their report) and simply to await the transformation of the colony from the fusion of the races, voluntary enfranchisement and the progressive increase of the population. The colonial Council of Guyana decided, in its sitting of 19th January 1841 which it adjourned sine die, that in its opinion emancipation could only be the work of time and patience. As far as the colonial Council of Bourbon was concerned, it not only thought that slavery was a relative benefit in a state of transition; it also thought it was an absolute benefit in a perpetual state of things. In its eyes, the condition of the slave is morally superior and materially preferable to that of the free worker. It would be absurd and hateful to deprive him of it. Slavery is the great tool, the providential and permanent tool of civilisation. Moreover, it would be impossible to suppress slavery without trampling underfoot the rights of the colonies, even if the colonists were indemnified and effectively guaranteed the maintenance of work. |
The Commission makes the following observations on the decisions of the colonial Councils.
| These declarations cause no surprise. There was no difficulty in foreseeing them. As far as we are concerned, we did not turn to the colonial Councils composed exclusively of colonists, but, through the intermediary of the department for the Marine, to the governors and magistrates who make up the special Councils of the colonies. We did this to obtain the documents and clarifications necessary for progress in our work. While we recognise the justice of the motives which appear to have determined your predecessor to give formal notice for the last time to the interested parties, we had not placed any great hope on their co-operation. The arguments brought forward as a support of these declarations have not caused us any concern; they contain nothing new. They have been maintained over and over again during the past 50 years, sometimes in order to combat abolition of the black slave trade, sometimes to oppose the admission of coloured people into the ranks of civil and political society. In both cases, they have already been appraised. (Report to the Secretary of State for Marine and |