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world has beheld in an eminent station. As often as the law usurps the appropriation of honor or shame, it encroaches imprudently on the right of opinion, and this latter is apt to reclaim its supremacy. A contest ensues, which is always to the disadvantage of the law. This conflict is most certain, in regard to political questions, on which opinions are of course divided. The moral feeling of man is weakened, when he is commanded to esteem or despise, by authority. This tender and scrupulous feeling is palled by the violence that is offered to it; and a people becomes at length equally insusceptible of esteem or contempt.
Even if held out, in terrorem, to men whose offices are made more useful by personal respect, the liability to vilifying punishments is a kind of prospective disgrace. The dishonor of the minister who had undergone an infamous punishment, would disparage the ruling minister in the eyes of the nation. · Lastly, mankind has too strong a propensity to trample on fallen greatness. Let us not inflame it. That which, after a minister's fall, might be called indignation at his crimes, would most frequently be the workiugs of envy, or of triumph over misfortune.
When a minister has been condemned, whether he has undergone his sentence, or been pardoned by the king, he ought to be ensured for the future from all those varied annoyances which the prevailing party, under different pretexts, employ against the vanquished. To justify these measures, they affect an excess of apprehension. They know well, that these fears are groundless, and that it is doing too much honor to Man, to suppose that he will pay court to fallen power. But hatred arrays itself in the garb of fear, and a helpless individual is depicted as an object of terror, in order to subject him to more headlong savageness. I wish the law to raise an insurmountable barrier' against this mistimed rigor, and, after having reached the culprit, to take him under its protection. I wish it enacted, that no Minister, after his punishment, shall be liable to be exiled, imprisoned, or detained from his family. I know of nothing more disgraceful than these protracted denunciations. They either exasperate or corrupt the people. They conciliate all noble minds towards the victims. Many a minister, whose sentence has been approved by the public, has experienced its commiseration, when punishment is aggravated by tyranny.
CHAP. XII. Should the King's privilege of amnesty
be extended to guilty Ministers?
I have supposed, in the preceding chapter, that the king might pardon his ministers, when they had been declared guilty. Some persons have considered it inexpedient to allow the prerogative its full extent on that important emergency. But any limitation of this right, which is inseparable from royalty, would infringe our constitution ; for that makes it absolutely inviolable. Any limitation, of that nature, would destroy the essence of a constitutional monarchy; for, in such a monarchy, the king, to borrow the English phrase, should be the fountain of mercy, as well as that of honor.
A king, it will be said, may enjoin guilty acts, and afterwards pardon his ministers. This would be to encourage by the assurance of impunity, the zeal of servile, and the boldness of ambitious, ministers.
To canvass this objection, we must ascend to the first principle of constitutional monarchy--I mean, to inviolability. Inviolability presumes, that the King can commit no wrong. It is evident, that this hypothesis is a legal fiction, which does not exonerate the individual who occupies the throne from the affections and frailties of humanity. But it was felt, that this legal fiction was necessary, for the interest of order and even of liberty, because, without it, all is confusion and eternal war between the monarch and different factions. This fiction must therefore be recognized in its full extent. If you quit it, for a moment, you incur all the dangers that you have endeavoured to avoid. But you resign it, by restricting the prerogatives of the monarch, in your fear of his intentions. This is to admit, that his views are questionable; that he may wish for evil, and consequently commit it. From this time, you have destroyed the supposition, on which the opinion of his inviolability is founded. Hence, the principle of constitutional monarchy is attacked. According to this principle, we must only
look to ministers for the exertion of power; they are present to answer for it. The monarch is placed apart in a sanctuary : your looks and your suspicions must never glance towards him. He has no interests, no frailties, no connivance with ministers, for he is not of mankind :' he is a neutral and independent power, who sees the storm roll beneath him.
If I be accused of discussing this constitutional inquiry through a metaphysical medium, I am ready to step on the firm ground of morality and practical utility, and I will repeat, that from refusing to the king the right of pardoning guilty ministers, another inconvenience would arise, which would be the more galling, inasmuch as the motive for limiting the prerogative would be more rational.
It may happen that a king, tempted by the love of arbitrary power, should incite his ministers to treasonable intrigues against the constitution. These intrigues are discovered, the criminals are accused and convicted ; and sentence is passed. What do you effect, by controverting the sovereign's right to ward off the sword which is declining on the agents of his secret will, and by forcing him to ratify their sentence? You divide him between his political duties, and the more sacred duties of gratitude and affection. For zeal is not less, because unauthorized, and men cannot punish without ingratitude the devotedness that they have encouraged. Thus, you force him to an act of cowardice and perfidy: you yield him to the remorse of his conscience; you vilify him in his own eyes; you disparage him in those of the people. The English acted thus, when they compelled Charles I. to sign Strafford's sentence, and the royal power, being once degraded, was soon destroyed.
If you desire to preserve liberty and the monarchy at the same time, struggle boldly for the removal of ministers; but, in regard to the royal dignity, spare the man, while you honor the monarch. In him, respect the feelings of the heart; for these are always respectable. Suspect him not of errors of which the constitution
The advocates of despotism have also said, that the King was not a man; but they inferred from it, that his will was paramount to law. I say, that the constitutional monarch is above humanity; but it is, because bis ministers act for him, and they cao do nothing without the law.
takes no cognizance. Above all, goad him not to atone for them by severities, which, inflicted on servants too confidingly faithful, degenerate into crimes.
Observe too, that, if we are a nation, if we have free elections, these errors will not be dangerous. Ministers, if unpunished, will still be disarmed. If the sovereign should exert his prerogative in their favor, they obtain a pardon, but their crime is on record, and the culprit loses his authority; for he can neither conduct the administration with an accusing majority, nor can he acquire a new majority by other elections, since the public would again incorporate the hostile majority with the legislature.
But if we were not a nation, if we had no free elections, all our precautions would be fruitless. We should never employ the constitutional expedients that we are preparing. We might, indeed, triumph at particular seasons by brutal violence; but we should never hold ministers in check, or accuse, or bring them to trial. We should only rush forward to their ruin, when they had been overthrown.
CHAP. XIII. Result of the preceding arrangements, in regard to
the effects of responsibility.
FROM the combination of all the preceding arrangements, it follows, that ministers will often be censured, sometimes accused, seldom condemned, and scarcely ever punished.
This result may at first appear inadequate to those who think that justice indispensably requires a severe and a certain punishment, for the crimes of ministers, as well as for those of individuals.
I do not join in this opinion.
Responsibility, to me, seems to aim at two objects; to withhold the exercise of power from guilty ministers; and, by the vigilance of the representatives, the publicity of their debates, and the examination, through a free press, of all ministerial acts, to cherish in the pation a spirit of inquiry, an habitual interest in the support of the constitution, a constant attention to the affairs of government, an animated feeling of political life.
NO. X. Pam. VOL. V.
In the relations of responsibility, it is not requisite, as on ordinary occasions, to provide for the safety of innocence, and the punishment of crime. In questions of this nature, criminality and innocence are seldom clearly determined. It is only expedient that ministers should be readily subjected to inquiry; and that, meanwhile, they should have the command of resources sufficient to escape the consequences of the investigation, if their crime, although proved, should not be so great as to deserve no mercy, either from positive law, or the more lenient test of conscience and universal equity.
This mildness in the practical application of responsibility is but a just and necessary consequence of the principle on which its theory is founded.
I have shewn that it is never free from a certain degree of arbitrary power; but this, on every occasion, is a serious evil.
If it implicated private citizens, nothing could justify it. The .compact of citizens with society is clear. They have promised to respect its laws, and society has engaged to communicate them. If they are faithful to their duty, nothing more can be demanded of them. They have a right to be informed of the consequences of their actions, each of which ought to be judged by itself, and by a definite text.
Ministers have entered into another agreement with society. In the hope of fame, they have voluntarily accepted of power or fortune, of vast and complex duties, which constitute an indivisible and regulated whole. No one of their ministerial acts can be estimated by itself. They have consented that their administration shall be taken altogether. But this can be effected by no positive law; and hence the discretionary power that should be employed in regard to them.
But it is the bounden duty of society to exercise this power with all the forbearance that the safety of the state will admit. Hence, that privileged tribunal, so constituted, that its members are free from all popular incitements. Hence the power possessed by this tribunal, of deciding by its conscience, and of choosing or móderating the punishment. Lastly, hence proceeds the appeal to the clemency of the monarch; a resource granted to all his subjects,