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critical period. In all other cases, government only needs secrecy, to avoid opposition; and for the most part, after having acted, it repines for that opposition which would have instructed it.
But in those cases where secrecy is really requisite, those discussions which ensue from responsibility, betray no confidence. For they are only debated on, after the object that gave rise to them has become public. · The right of peace or war, the conduct of military enterprises, that of negociations, the ratification of treaties, belong to the executive power. It is only after a war has been undertaken, that the ministers may be made accountable for its justice.'
Discussinn betrays no fact: it merely shows facts that are pub. lic, in a new point of view.
The honor of ministers, instead of requiring that the accusation's against them should be enveloped in mystery, imperatively demands that they should be publicly conducted. A minister, if acquitted in secret, is never completely justified. Accusations cannot be concealed. The feeling that prompts them, inevitably impels their author to communicate them. But, reported thus in vague conversations, the intensity of their interest is aggravated by passion. Truth is not at hand to refute them. You do not prevent the accuser from speaking, but you forbid the answer. The enemies of the minister are enabled by the veil of mystery, to exaggerate what is behind it. A public and conclusive explanation, wherein the country would have been instructed by their delegates, in regard to the minister's conduct, might perhaps have proved at once their moderation and his innocence. A secret discussion suspends that weapon over his head, which can only be withdrawn by a myste
,' I expect that an inquiry respecting the legitimacy or the conduct of a war, while it is carried on, will appear very alarming to us, who, from the Constituent Assembly till the restoration, have lost the very name of free discussion, and who consider an independent minority as a factious cabal. The ardor of the nation, timid characters may say, will be discouraged, and the claims of the enemy augmented, by the censure applied to the cause or the conduct of the war. England, however, has proved to us, that a people do pot slacken their defence, because they investigate its causes; and happy had it been for France, if her representatives had been permitted to inquire into the justice of the invasion of Spain, or of Russia, while our troops were yet at Madrid, and at Moscow.
rious inquiry, while the national representatives labor under the charge of weakness, or of the concealment or participation of guilt.
The sanie arguments apply to the agitation which you dread in the public mind. A man in authority cannot be attacked, without awaking the reason, and kindling the curiosity of the public. To escape from either, is impossible. Your proper course is, to con vince the one, by appeasing the other. Danger cannot be exorcised, by excluding the light. On the contrary, it is exaggerated by the darkness that surrounds it. All objects are more formidable in the night : the shadows of anxiety are always magnified beyond nature.
It is for want of properly contemplating our present prospects, that we are terrified at the thought of hasty declamations, and unfounded charges. These things wear away of themselves, by the influence of public opinion which appreciates and condemns them. They are only dangerous under a despotic government, or in democracies without a constitutional check : under a despotic government, because, by circulating without its authority, they attract the favor of all its opponents; in democracies, because, all political energies being as much confounded together, as in a despotic government, whoever, by his eloquence, obtains the mastery with the mob, is absolute director of all. It is despotism under another form. But when the different powers are equipoised, and re-act on each other, oratory has not that rapid and extravagant influence. · In England also, there are declaimers and incendiaries in the House of Commons. What is the consequence? They harangue, they are not attended to, and they sit down. The regard of a legislative assembly for their own dignity urges them to control their members, without repressing their freedom of speech. In the same way, the public learns to detect inflammatory harangues and unfounded accusations. Let the public mind be formed : it must be done;, and to interrupt, is only to retard it. Be on your guard, if you will, against immediate results. Let the law restrain riot; but assure yourself that publicity is the safest remedy. It ranges on your side the majority of the nation, which otherwise you must restrain, and perhaps oppose. This majority seconds you. Reason is your ally. But to secure this powerful auxiliary, you must not deny it instruction, but rather enlighten it.
Do you wish to be certain of the popular tranquillity? Let the people know as much of their interests as you can. The more they know, the more coolly and soundly will they judge. They are alarmed at concealment, and their alarm takes refuge in anger.
Chap. X. On the Conduct of the Proceedings.
When a legislative assembly have examined, discussed, and adopted a charge against a minister, it appears natural to entrust to that assembly the conduct of a cause, on which they are the best informed. Many of our deputies have nevertheless proposed to delegate this office either to a magistrate, appointed for life by the king, and responsible for this one duty; or to the King's solicitor, chosen, by some given form, out of the different courts.
It appears to me, that this last proposition will not bear the slightest inquiry. How should we entrust to men who are dependent on the executive power, and removable at pleasure, the duty of prosecuting those who are the depositaries of the executive power,—those to whom their prosecutors perhaps owe their appointment, and who may again be the arbiters of their fate? .
The magistracy for life, of which the institution is proposed, has not the same evils. But does he not' resemble those state inquisitors, the organs of terror and suspicion, in arbitrary aristocracies? Do you not perceive a chief solicitor, independent both of the Prince and the People? Even his inactivity seems alarming to me. He hovers in silence over ministers, like an invisible enemy, He can never be of importance, but by seeking for opportunities of exercising his rigid office. In the lonely recess where you have stationed him, he has something of a hostile and mysterious aspect.
This institution would of course be modified in our practice: for it is contrary to our manners, and to the spirit of monarchy. But for this very reason, would it not be too ineffective-would it not become illusory? Nearly placed in contact with ministers, the
chief solicitor would form connexions with them, which, in the present state of society, would impose on him duties more sacred than those of his office : public opinion would condemu him more severely, if he should earnestly prosecute a minister with whom he had been intimate, than if he had betrayed the cause of the nation; and the inquisitor would soon be no more than an ally, a defender, and sometimes an accomplice.
Will it be answered, that the assemblies who had put a minister on his trial, would control the solicitor, and would neither permit his negligence nor his forbearance? But men only do well what they do willingly; and their secret reluctance easily evades the precautions intended to baffle it. But if we suppose the chief solicitor to be animated by zeal and courage, will the accusers of ministers recognize these qualities ? Can you not hear the murmurs of the Representatives ? Do not you see the proceedings concerted between the Minister, and the magistrate who indolently prosecutes him ? Will the accusers say, that their cause has not been properly supported? Would they not impute the sentence of acquittal to the perfidy of the auxiliary whom you made them employ against their will ?
Nor is this all. I have another fear. Inasmuch as I suspect the cordiality of the public officer, when the assembly accuses a minister; so do I dread his animosity, when the accusation originates with the king—i. e. with his new ministers. You think you give a safeguard to the party accused, when you consign him to an adversary, who has not joined in the accusation. But servility has its fury, as well as personal enmity. Among condemned ministers, how many do we know who were victims to their successors ! Passion is not inconsistent with generosity, and I am better disposed towards an ardent assembly, than to an individual magistrate, whose soul may be biassed by a thousand interests, or stimulated by numberless hopes.
Lastly, those prosecutions which are within the purview of responsibility, being, as I have already said, rather political than judicial, the members of the representative assemblies are much fitter to conduct them, than men selected from the courts, strangers to diplomatic science, to military combinations, to financial operations; imperfectly acquainted with the policy of Europe, versed only in the records of positive law, and confined by their professio
nal habits, to its rigid application. The subtile spirit of jurisprudence, which would be introduced into these causes by the solicitors of the King, or even by the chief solicitor, who would uniformly be a legalist, is not, I conceive, akin to the nature of these questions, which ought to be viewed in a public, or national, or even European, relation ; and which must be determined by the Peers, as juries pa ramount, in conformity to their intelligence, their honor, and their conscience.
Let us always walk in a natural path ; let each person fulfil his appropriate duty. Impartiality cannot be expected in accusers; it: is an attribute of the judges. Let the enemies of accused ministers have no pretence for inculpating the conduct of their cause. Let them exert all their activity, display all their eloquence, and effectuate all their resources. If they fail, their defeat will but be the more palpable. All will then appear more open and dignified in this procedure : criminality will be more endangered, innocence will arise more brightly from the trial, conviction will be more searching, and public opinion more tranquil.
Chap. XI. On the punishment of Ministers.
The nature of the law on responsibility presumes the necessity of endowing its judges, with the right of inflicting and even of appointing punishment. The crimes or misdemeanors which are the objects of this law, not consisting of oue or more specific acts, that can call for a positive law to each, the guilt in question is necessarily aggravated or extenuated by differences that are impervious to language, and still more so, to law. The conscience of the Peers is the judge of these differences, and is competent to decide both on the punishment and the crime.
The law should, at the furthest, only specify those punishments between which the chamber of Peers must elect. Three only are admissible: death, exile, or imprisonment. They should not be aggravated by any mortifying circumstance; no idea of degradation should be attached to them.
Debasing punishments have inconveniences, which become more vexatious, when they are directed against men 'whom the