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takes of crime, ás in case of illegal severities towards prisoners, conduct, which its atrocity ranks in the highest class of guilt,--a civil process is not enough. · It is of use to observe, that this kind of misdemeanours will mostly proceed from inferior agents; and that, consequently, the pursuit and punishment of it will not embarrass, as it has been apprehended, the measures of government. If a soldier is prosecuted for committing a crime, other soldiers will yet remain true to their duty: if a commissioner of police is sentenced, for infringing personal liberty, there will be other commissioners to watch over the public weal: the only result will be, that all will be more attentive to keep within the law, and the functions of government will only be more secure, as being more regular. But even if humanity and justice were outraged by command of a minister; if, for instance (as did, in the middle of last century, and in a neighbouring kingdom, a man in authority, celebrated both for his despotism and his genius), if a minister should put to a lingering death the prisoners who had attracted his vengeance, by confining them in a dungeon overflowed with freezing water, it will undoubtedly be allowed, that a civil process would be quite inadequate. · I have inquired of Englishmen who were well-informed in the laws of their country, respecting the action brought by Mr. Wilkes against ministers. They told me, that on that occasion the process was in fact strictly civil, because the legality of the proceedings was questioned,—not the intentions of ministers or their agents. But if the intention had been accused as criminal, a criminal action must have taken place.
With respect to the necessity of a permission from government, to prosecute its own agents, it strikes me, I confess, as a sort of petitio principii, a reasoning in a circle, which can hardly be admitted. This arrangement existed under Buonaparte. In his constitution of the year vill., he had included this article : accordingly, all individuals were denied the power of redressing themselves by law, and the most infamous excesses were unpunished. *. Other deputies have wished to withhold from the ordinary tribunals the right of judging in regard to actions promoted by individuals against ministers, for private misdemeanours. They have argued, both on the weakness of the tribunals, which would fear to
give sentence against men in power; and on the inconvenience of communicating to these tribunals what have been called secrets of state.
This last objection belongs to obsolete ideas : it is a relic of the system which admitted that the safety of the state might require arbitrary acts. Therefore, as despotism avows no motive, since it presumes the absence of those facts and proofs which would have made the law itself sufficient, it is pretended that secrecy is indis-, pensable. When a minister has caused the illegal arrest and de tention of a citizen, it is a thing of course that his apologists should ascribe this grievance to secret reasons, known by the minister alone, and which cannot be revealed without exposing the public safety. As for myself, I know of no public safety, without individual right. I believe that the public safety is particularly exposed, when the citizens perceive in government their persecutor instead of their protector. I know that despotism is the real foe of the public safety; that the obscurity with which des potism encircles itself, aggravates its dangers ; that there is no public safety but in justice, no justice but by law, and no law without its open forms. I think that the liberty of a single citizen is of consequence enough to the whole society, to make any rigor that is exercised against him, cognizable by his natural judges. I believe that such is the principal end, the sacred end, of every political institution; and that, as no constitution would otherwise possess a complete legitimacy, it would be in vain to seek else where for the certainty of its power and its existence.
If it be pretended that the tribunals will be too weak against guilty agents, this is, because we imagine theme tribunals to be in the state of uncertainty, dependence, and terror, in which the revo. lution placed them. Independent tribunals could neither be instituted nor tolerated by governments, anxious concerning their rights, and threatened in their interests; the miserable birth of factions, and inheriting the hatred that these factions had excited. Their authority was precarious, because it had neither the legitimacy of tradition, nor that of popularity; and being precarious, it was compelled to be unrelenting. Happily, all this has been altered: our tribunals are powerful against the agents of authority, because authority is respected. Buonaparte was the paymaster,
not only of his ministers, but of every archer and spy, because their power was involved with his own. Each of his spies and archers was his representative: like them, he was imposed by force on the nation; like them, he governed the nation by falsehood and tyranny. The present administration, thank Heaven, is of another nature : it has a different foundation, and should employ other agents. The constitution which declares the monarch inviolable, has consecrated his person from committing evil : he is not therefore, like Buonaparte, the paymaster of the evil that he commits: he does not profit by the impunity of crimes, which certainly it is not in his nature to command. The tribunals will perceive that, in wreaking vengeance on these crimes, they can incur no constitutional censure, that they brave no danger; and from this security will origiBate mildness, courage, and impartiality.
Chap. VI. On Responsibility, properly so termed.
· The question of responsibility already seems to me much elucidated : it is freed from its first and its greatest difficulty. Illegal or arbitrary acts, of which ministers may be guilty, are not comprised in responsibility. These acts are private misdemeanors, and must be judged by the same tribunals and the same forms as the misdemeanors of other individuals. Responsibility only extends to the bad use of a legal power.
Thus, an unjust or ill-managed war, a treaty of peace making unnecessary sacrifices, bad financial operations, the introduction of dangerous and defective practices in the administration of justice; indeed, every application of power, which, though authorised by the law, would be fatal to the nation, or vexatious to the citizens, without being demanded by the public interest ;-such are the objects to which responsibility exteuds.
We see, by this brief definition, how deceptive will be every attempt to draw up, on the subject of responsibility, a precise and defined law, as criminal laws should always be. · There are a thousand methods of undertaking a war unjustly or without necessity, of directing the war, when undertaken, with too much rashness or indolence; of conducting negociations with too NO. X.
much of stubborness, or weakness; of injuring national credit, whether by badly-digested plans of economy, by hasty combinations, or by breaches of faith, variously glossed over. If each of these methods of injuring a state could be pointed out and specified by law, the code of responsibility would become a treatise ou history and politics, neither would it comprise more than the past. Ministers would easily discover new modes of evasion for the future. ,
Thus the English, though, in regard to the objects of the common law, so rigidly attached to a literal interpretation, denote the acts which expose ministers to responsibility, by the very vague terms of high crimes and misdemeanors; words which designate neither the degree nor the nature of the crime; and if we preserve in our constitutional charter the authorized terms of malversation and treason, it will be indispensable to give them the most enlarged sense. It must be established, that a minister betrays, the state, whenever he exerts bis legal authority to its injury. · It will be thought, perhaps, that I put ministers in a very obnoxious and dangerous situation : whilst I exact, for the protection of private citizens, the utmost precision of the law, 1 yield up ministers to a sort of arbitrary control, on the part both of their accuscrs and their judges. But this is in the nature of responsibility; and its inconveniencies will be qualified by the solemnity of forms, the reverence of judges, and the lenity of punishments. The principle should be thus fixed; and I believe that it is always better to admit in theory what cannot be declined in practice.
A minister may commit so much evil, without going beyond the letter of any existing law, that, unless you prepare constitutional means for repressing this evil, and for punishing or disabling the guilty person (for I shall prove that it is of much more importance to deprive traitorous ministers of power than to punish them,) necessity will find means, even apart from the constitution. Men, being reduced to quibble on terms, or to transgress forms, will become fierce, perfidious, and violent. Seeing no path marked out for them, they will trace a shorter one for themselves, but a more irregular and more dangerous one. There is, in fact, a power which no address can long evade. If, by only subjecting ministers to specific laws, which never embrace the whole of their acts, or the principle of their administration, you emancipate them from. every law, they will no longer be judged by your minute and inapplicable arrangements : they will be punished accordingly to the anxieties they have caused, the evil they have committed, and the degree of resentment arising from it.'
In assuming as an axiom, that the law on responsibility cannot be defined like common laws, and that it is a political law, of which the nature and the agency inevitably have something discretional, I do not consider myself the upholder of arbitrary power, because I have in my favor, as I have said, the example of the English ; and because, for 134 years, not only has liberty existed, without commotion, but very few of their ministers, though exposed to an indefinite responsibility, and perpetually denounced by the opposition, have undergone investigation, and none has been punished.
Our remembrancès should not mislead us. We have been savage and turbulent, like slaves who broke their chains. But now we are become a free people; and if we continue to be so, if we boldly and openly frame a system of liberty, we shall soon have the temperance and wisdom of a free people.
CHAP. VII. On the Declaration that Ministers are Unworthy
of the public confidence..
In the last discussions on responsibility, it was proposed to substitute some proceeding, milder in appearance than a formal accusation, whenever the bad administration of ministers should have endangered the safety of the state, the dignity of the crown, or the liberty of the people, without however having directly trespassed
? I am happy to find, in the discourse of one of our most enlightened deputies, that I was once so fortunate as to reckon among my colleagues, one whose opinion is the same as I now express, and couched in almost the same terms :
“ In this constitutional mission,” says he (that of accusing ministers and of deciding on the accusation,)“ it is very important, that the two chambers be not regarded as judges or tribunals. They are juries paramount, who cannot fulfil their office, without being free from all legislative trammels, and only acknowledging their reason and their conscience as the rule of their conduct and their decision.” Opinion of M. Sédillez, 8th Dec: (814.