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on any positive law. It was purposed to lodge a power in the representative assemblies, of declaring ministers unworthy of public, confidence.
But firstly, I observe, that this declaration against ministers is, virtually understood, whenever they lose the majority in those assemblies. When we shall have, what as yet we have not, but which is indispensable to a constitutional monarchy, I mean, a. confederated ministry, a firm majority, and an opposition unconnected with that majority, no minister can maintain his place, without the majority, unless he appeals to the people by new elections. Then, these elections will be the criterion of the confidence reposed in this minister. I perceive, in the declaration ; suggested instead of the accusation, merely the unnecessary state-, ment of a fact that is self-evident. But I also perceive, that this declaration, even as being less solemn and severe than a formal, accusation, will be more liable to be depreciated by frequency. If, you fear that the accusation itself will be depreciated, you are, supposing the assembly to be factious. But if indeed the assembly, should be factious, it will be more inclined to disgrace ministers than to accuse them, since it may disgrace them, without exposing itself by a declaration which pledges it to nothing, and which, calling for inquiry, requires no proof; which is indeed but a cry for vengeance. If the assembly is not factious, why inveut a formula, useless on this supposition, and dangerous on the other?
Secondly, when ministers are accused, a tribunal whose component parts we shall presently review, is commissioned to judge them. This tribunal, by its sentence of whatever nature, recon-, ciles government with the organs of the people. But no tribunal, can decide respecting the declaration. This declaration is an act of hostility the more vexatious in its probable results, as none are necessarily attached to it. The king and the delegates of the people are confronted, and you lose the great advantage of having a neutral authority to decide between them.
This declaration is, in the third place, a direct attack on the royal prerogative. It denies the king's liberty of election. It is not the same with the accusation. Ministers may have become guilty, though the monarch may have been right in appointing them before they were so. When you accuse ministers, you attack them alone;
but when you declare them unworthy of the public confidence either the intentions or the information of the prince are implicated; neither of which should ever occur in a constitutional government. .
The essence of royalty, in a representative monarchy, is, the independence of the appointments entrusted to it. The king never acts in his own name. Placed at the zenith of power, he creates some powers, modifies others, and thus directs the political action, by superintending without partaking of it. Hence proceeds his inviolability. We must therefore leave him this venerated and impregnable prerogative. We must never dispute his right of choosing. The assemblies must not lay claim to the right of exclusion; a right which, if obstinately employed, eventually comprises the right of nomination.
I shall not, I think, be accused of toð much partiality to abso lute power. But I wish that royalty may be gifted with all the force, and be the object of all the homage, which may be requisite for the safety of the people and the dignity of the throne,
Let the deliberations of the assemblies be perfectly free, let the discussions of the press, freed from invidious restriction, encourage and enlighten them; let the opposition possess the privilege of the boldest investigation; do not retain from them any constitutional expedient for detaching the majority from the ministers. But do not guide them to a path wherein, if once laid open, they will rush forward intemperately. The declaration proposed will become alternately an unmeaning form, or a weapon wielded by faction..
Let me add, that it will be better for Ministers themselves, if they be sometimes accused, though frivolously perhaps, than if they were constantly exposed to an undefined declaration, against which it would be more difficult to guard them. The mere phrase, “ accuse him,” is a powerful argument in the defenders of a minister.'
I have already said, and I repeat it, the confidence that a minister enjoys or the suspicion that he excites, is proved by the majority that supports or deserts him. This is the legal expedient, the constitutional sentiment; and it is vain to seek for another.
CHAP. VIII. On the Tribunal that is to try the Ministers.
To prevent obscurity, I repeat the expressions that I have already employed. The law on responsibility cannot be precise or defined, like common laws. It is a political law, of wbich the nature and the agency have inevitably something discretional.
It follows that the direction of responsibility requires other forms and other principles, than those which suffice, when every thing may be foreseen and regulated by the letter of the law. .
The bad management of war, the fallacious opinion of its justice, bad financial operations, or any other misapplication of legal power, may be the result of error, incapacity, or weakness, which do pot presume criminality. The organization, therefore, of the tribunal that is to decide on these complicated questions, must be a pledge to the accused parties, that its power, njore or less discretional, will be employed in the equitable assignment, not only of acts but of motives. The personal relations, the character, the interest, of the judges must supply this safeguard: let them have a latitude of action, so that their punishments may be properly graduated.
I have said that, whenever questions embraced a moral alternative, and were of a complex nature, the trial by jury was indispensable. I have shown, for instance, that in cases of injury to the rights and freedom of individuals, there was no other means for an equitable estimate of the obedience or disobedience of inferior agents. In more difficult questions, on which the literal law cannot decide with certainty, there is a still stronger necessity for an institution partaking of the advantages of juries. But juries would be inadequate in reference to a responsibility, which is linked with the most important political problems, and with national interests, both the most secret and the most extensive.
The representatives of this nation, being commissioned to inspect the application of the public funds, and in some degree familiar with the details of negociation, of which ministers must apprise them at their settlement, appear at first sight able to determine, whether inipisters deserve praise or blame, indulgence or punishment. But the representatives of the nation, elected for a limited term, and wishing to gratify their constituents, are always influenced by their popular origin, and the precarious tenure of their situation, which is re-electory at certain periods. This situation renders them doubly dependent, on popularity and on favor. It is besides often incumbent on them to oppose ministers, and because they may become their accusers, they must not be their judges. This important office should be vested in a tribunal of more certain impartiality.
The placing ministers on their trial, is in fact a process between the executive and the popular power. In order, therefore, to decide it, recourse must be had to a tribunal, equally distinct from the people and the government, and which, nevertheless, may be attached by another interest to both of them.
The peerage combines these two requisites. "Its members are insulated by their privileges from the people. They can no more form a part of the popular community; and they have therefore a separate interest. But, as the number of the peers makes it impossible for the majority of them to share in the government, this majority hás, by inference, a distinct interest from that of the government. At the same time, the peers are interested in the liberty of the people; for if that were annihilated, the liberty and the dignitý of the peers would be destroyed. They are also interested in the support of the government; for, if the government were subverted, their honors would be engulfed in the ruin.
The chamber of peers, then, by its characteristic independence and neutrality, is the appropriate judge of ministers, for all those crimes which come within the scope of responsibility.
It seems to me, that this is a primary and not ineffective pledge to ministers, against that kind of oppression, which they may apprehend. The men, who are convoked to pronounce on their conduct, have no touch of those passions which actuate their accusers. The occupants of a station that naturally excites the spirit of preserva-' tion, educated in the knowledge of great political interests, instructed by their duties in most of the secrets of administration, they also contract from their post in society a staidness of character, which enforces maturity of deliberation, and an amenity of deportment which, while it sways them towards the minor personal charities, atones for the vagueness of written law by the suggestions of equity.
: Chap. IX. On the Publicity of the Trial of Ministers.,
To remove all anxiety, I have chosen to speak first of the judges ; let us now consider the accusers.
These accusers, as I have already said, must be members of the representative assemblies. In the concerns of government, no individual can be sufficiently well versed, to determine whether or not a minister should be accused. No individual can feel a motive urgent enough to brave the danger, and incur the inconvenience, which are inseparable from the accusation of a minister, unless this minister be guilty towards the public. If he is so towards an ipdividual, I have shown that redress should be open to this individual, in the ordinary courts. But this is unconnected with responsibility.
By allotting to the representatives of the nation the exclusive accusation of ministers, considered as responsible, I would not, however, reject those denunciations which are presented as private petitions. Every citizen has the right of pointing out to the delegates of the people, what acts or decisions appear to him censurable in the holders of power. The king alone is inviolable by the sacred post that he fills. The august regulator of the movements of the social spring, he never acts in person. But the denunciations of individuals against ministers, for those objects which fall under responsibility, never assume a legal character, until they are sanctioned by the representative assemblies.
Consequently, it belongs to these assemblies to decide when a minister should be put under accusation. But in this important deliberation, should publicity be granted ?
Against this publicity, three specious objections are alleged. The secrets of government, it is said, will be at the mercy of an imprudent orator. The honor of ministers will be disparaged by rash accusations. Lastly, these accusations, though falsified, will have exerted a dangerous influence on public opinion. .
The secrets of government are not so numerous as interested imposture would affirm, or as ignorance would believe. Secrecy is hardly necessary, unless in some rare and temporary circumstances: as, for some military enterprise, or some important alliance, at a