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On the contrary, during the whole period of the suspension of the habeas corpus, those who reproached the ministers for unjust arrests, or imprisonments, did not talk of bringing them before the Courts, but of accusing them in Parliament. For these arrests and imprisonments, being sanctioned by the law, were not the unwarranted exercise of an illegitimate power, but the use of a legal one; and to determine whether that use of it were good or bad, other forms and other judges were necessary.
In the affair of Mr. Wilkes, the ministers, acting against the law, vere amenable, like ordinary parties. But could they have grounded their proceeaings on some law, they would only have been answerable as public officers,
The very term of responsibility suggests this distinction. If I commit to a person the management of my fortune, and he abuses the trust, by transactions obviously hostile to my wish and my interest, he is accountable: but if this same man breaks open my strong-box to rob me of a sum that I had not confided to him, he will not be considered responsible as my agent; but he will be punishable for an invasion of my property. In the first case, he would have transgressed a legal authority imparted to him ; and responsibility would follow. In the second instance, he would have acted without authority, and the nature of his crime would preclude responsibility.
CHAP. II. The Wisdom of the Constitutional Charter, in regard
If our preceding distinction be well understood, it will be seen that our Constitutional Charter, in which some well-meaning, but
mensurate to that confidence, and that the insecure and transient advantage of invidious and unconstitutional precautions could never countervail the evil of dissipating the national feeling, and of mingling their hatred of the enemy with mistrust of their government. That is a wise and magnanimous policy, which grants to its subjects the full possession of their legal liberty! The people feel that they ought to deserve it by their fidelity and energy: they are tranquil among themselves, and brave towards foreign countries.
too scrupulous minds have fancied a frightful defect, is framed on the contrary, with admirable discretion. It purports, that ministers cannot be accused by the Chamber of Deputies, unless for treason or mal-versation. In fact, treason, which includes the mismanagement of war, of foreign negociations, the introduction of a system of judicial forms, baneful to the independence of judges or juries, and all other public measures, inimical to the state; and mal-versation, which implies the abuse of the public funds ; these are the only two crimes within the scope of responsibility ; because they are the only two by which ministers can trespass as ministers ; that is, by abusing the power they hold from the law. In illegal acts, as the law gives them no power, they do not sin as ministers; they are guilty individuals, and as such must be 'treated.
It is evident, that the meaning of the Charter, in declaring that ministers shall only be accused by the Chamber of Deputies for mal-versation and treason, was, that they could be prosecuted before the ordinary tribunals, for other crimes, by the individuals who were the objects of them.' The absurdity of the contrary supposition more than demonstrates this.
If a minister, in a fit of passion, carried off a woman, or if, in a paroxysm of rage, he killed a man, would it be pretended, because the Charter adverts only to mal-versation and treason, that therefore the minister who were guilty of rape or murder, should be exempted from prosecution? Assuredly not; but the authors of the Charter were aware that, in this case, the culprit, not having acted in his capacity of minister, should not be personally accused as such, but, as a violator of the general laws, should be tried, accordingly to the description of his guilt, before the ordinary tribunals.
'It is impossible to interpret the articles, 55 and 56, in any other man
The Chamber of Deputies, says the 55th article, has the right of accusing ministers, and of citing them before the Chamber of Peers, which is alone empowered to judge them. They can only be accused, says the 56th article, for treason and mal-versation. If we inferred from this, that ministers can only be accused by the Chamber of Deputies, which can ac. cuse them only for treason or mal-versation, it would follow that they are responsible for no other crime.
But it is the same with all other illegal acts, as with rape or homicide. A minister, illegally invading the liberty or property of a citizen, does not act as minister; for none of his ministerial attributes will justify these transactions. The liberty or property of an individual may, in some cases, be legally withheld by a minister, as in England, for instance, when the habeas corpus is suspended. Then, he is responsible for his application of this legal power. But when he attacks the liberty of the subject illegally, he is like other culprits, and must be tried by the same laws.
Be it observed that any one of us may violate personal liberty. The privilege is not confined to ministers. I can, if I please, suborn four men to waylay my enemy, and convey him to some obscure place, where I may imprison him clandestinely. The minister, who causes the detention of a citizen, without the warrant of the law, commits the same crime. His office of minister is distinct from this act, and does not change the nature of it. For, I repeat, this office not endowing him with the right of arresting citizens, in defiance of the law and its forms, his crime must be classed with that of homicide, rape, or with any other individual crime.
True, that the minister's legal power facilitates the commission of illegal acts. But this use of his power is an aggravation of the crime ; as if an individual should forge a ministerial appointment, to impose on his agents. This individual would assume a commission, and usurp a power, both entirely fallacious. With similar views, the minister who orders an illegal act, presupposes an authority which he does not possess.
We must therefore gratefully acknowledge the wise foresight and the equity of our Charter, which has left to every one the free exercise of his rights, and the care of his defence. Had it entrusted the protection of personal liberty to the representative Chambers, the liberty and the safety of citizens would have been exposed to the negligence, the corruption, or the eventual servility of these assemblies; and these two invaluable blessings, for which Man has established the social compact, would have been endangered by the coalition, always to be feared, of the representative power with the ministerial authority.
It is certainly the right and the duty of the representatives of the nation to resist the encroachments of ministers, if the citizens who are injured, dare not appeal against them.
But the protests, which will in this case be uttered from the tribune, will not put the guilty minister on his trial before the Chamber of Peers. They will, however, prove to those oppressed, that they have legal guardians; and they will operate as an invitation to the ordinary tribunals, to pursue the disturbers of the public peace; who are the more guilty as they employ that power for its injury, which they received for its protection.
Chap. III. The Advantages of the Definition of Responsibility,
in reference to the subordinate agents of the administration.
In this exact definition of responsibility, we find the solution of a problem which has hitherto appeared inexplicable. Ought inferior agents to be considered as responsible? If you extend responsibility to illegal acts, you must answer this question in the affirmative. To deny it, would remove all the bulwarks of personal safety. If you only punished the minister who gives an illegal order, and not the agents who execute it, you would fix redress so high, that it would often be unattainable. It would be as if you desired a man, who were attacked by another, to aim his blows only at the head, and not at the arm of his assailant, under pretence that the arm is but a blind instrument, and that both the crime and the will emanate from the head. But if, from the necessity of thus subjecting inferior agents to punishment, when they execute illegal orders, you should conclude, that they are answerable for actions which are included in ministerial responsibility, you would introduce a confusion of ideas which would clog all the measures of government, and would render its functions impossible. If the general and the officer were responsible for the legitimacy of a war, or the ambassador for the tenor of a treaty which he had received orders to sign, no war, and no negociation, could be conducted with success. The distinction that I have made alone removes the difficulty. It is manifest, that responsibility, properly so termed, does not reach inferior agents, i.e. these agents are only responsible for the strict execution of the orders they receive. When the question respects the violation of safety, liberty, individual property, those who take part in these crimes cannot be protected by any superior authority. But in what concerns the good or bad use of a legal power, ministers, as they are the primary judges of the use they are about to make of it, must alone be responsible. Thus, the soldier or the officer who have assisted at the illegal arrest of a citizen, is not justified by the order of a ninister, who had no right to give that order. But, in relation to an unjust or disastrous war, a disadvantageous or dishonorable treaty of peace,
all the world feels that neither the ambassador who has signed the treaty, if it is quite consonant with his instructions, nor the soldier, who has served in battle, can be called to account.
CHAP. IV. Answer to an Objection.
The difficulty, it will be said, is only evaded. It matters little, whether you call the inferior agents antenable to law, or responsible. If they may be punished, in any case, for their obedience to government, you authorise them to judge of the measures of government, before they execute them. By this, its functions are impeded. Where will it find agents, if obedience be dangerous ? how much do you weaken the hands of government! and in what a dilemma do you place their agents!
I answer without hesitation if you impose on the agents of administration the absolute duty of implicit and passive obedience, you are forging weapons of tyranny and oppression against the human race, and resigning them to the will of blind or furious power. Which evil is the greater?
But here I must rise to more general principles, on the nature and the possibility of passive obedience. Since the revolution, this sort of obedience is more fanatically extolled than ever. If there be no passive obedience in the army, it will be said, no army will exist: if there be no passive obedience to administration, the administration will cease. I should not be astonished if these reasoners, whom the excesses of democracy have contributed to ingratiate with despotism, should censure the commanders and governors of provinces, who have received the applause of History, during the last three centuries, for not having obeyed Charles IX. at the massacre of St. Bartholomew.