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but more favorable to ministers, in consequence of their situation, and their personal connexions.
True: ministers will seldom be punished. But if the coustitution is free, and the nation energetic, what matters the punishment of a minister; when, after being stricken by justice, he returns into the mass of society, more powerless than the meanest citizen, since dishonor tracks his every footstep? Has not liberty been preserved from his attacks, has not the public mind received a salutary and quickening agitation, has not public morality obtained a signal tri umph over political power, submitting to legal award, and cowering under its sentence?
Mr. Hastings was not punished; but that oppressor of India was humbled before the House of Lords; and the voice of Fox, Sheridan, and Burke, the avengers of long-outraged humanity, kindled in the breasts of the English people the impulses of generosity, and the sentiment of justice; while sordid traffic was obliged to cloak its designs, and to check its violence.
Lord Melville was not punished; and I give no opinion as to his innocence. But the example of a man, grown old in business, and yet deriving no protection from intrigue, and accused, in defiance of his connexions, was a warning to those who followed the same path, that there was utility in disinterestedness, and safety in integrity.
Lord North was not even accused. But by threatening him with an accusation, his antagonists renovated the principles of constitutional liberty, and proclaimed the right of every part of a kingdom to pay only those taxes to which it gave its consent.
Lastly, to recede still farther, the ministers who persecuted Mr. Wilkes, were only punished by fines; but the contest, and the sentence that followed, strengthened personal liberty, and consecrated the principle, that each Englishman's house is his castle, and his asylum.
Such are the advantages of responsibility; not, a few imprisonments and punishments.
Neither the death, nor the imprisonment, of any man have ever been necessary to the safety of a people; for a people should be its own protector. A nation that dreaded the life or liberty of a degraded minister, would indeed be pitiable. It would resemble
those slaves who killed their masters, lest they should again chastise them with the scourge.
If severity be claimed against guilty ministers, as an example to their successors; I reply, that the humiliation of a trial, which resounds throughout Europe, the disgrace of condemnation, the loss of an illustrious office, the solitude which succeeds to misfortune, and is preyed ou by remorse, are sufficiently instructive as a lesson, and severe as a punishment, for the pride of mortified ambition.
Be it observed, that this indulgence towards ministers, with respect to responsibility, endangers not in the least the rights and safety of individuals; for the crimes that interfere with these blessings, are beyond the scope of responsibility, properly so called. A minister may be deceived in his opinion of the justice, or the expediency of a war; or he may be mistaken in a financial operation. His judges must therefore possess the discretional power of appreciating his motives; i. e. to compare probabilities, that are at best uncertain. But a minister must know that he is committing a crime, when he attacks the liberty of a citizen. He kuows this as well as any other individual in the country. Accordingly, the indulgence that is but just in the examination of that which regards responsibility, must be withheld from illegal and arbitrary acts. Then the laws resume their force, and the ordinary courts must decide : the punishment should be ascertained, and it should be rigidly applied. • Doubtless, the king may remit the punishment. He may do so in this case, as in every other. But his clemency to the guilty person does not deprive the injured individual of the redress that the tribunals have granted him.
We now see how useful is an exact definition of responsibility. It enables us to regulate the proceedings against ministers, by all the indulgence that equity requires, and it leaves to the citizens all their securities against ministers, when they quit the ministerial duties, and avail themselves of the power they have, to usurp what they have not.
Chap. XIV. Concluding Reflections on Personal Liberty.
I have finished my inquiries on responsibility. I submit them to more enlightened men, to be adapted for the discussion of our representatives. But I cannot finish this work, without subjoining some reflexions on personal liberty—not only to justify the importance that I have attached to liberty, in all its relations, but also because I perhaps view it under an aspect which has not hitherto suggested itself to others.
The power of assailing individual liberty is nothing else than the power of imposing any restraint whatever on an individual, without alledging the reasons for this restraint, and without being obliged to prove that it has been deserved, or is authorised by law. This power may extend from the interdiction of such or such a place, to actual detention; and from personal detention to those imprisonments in unhealthy dungeons, or obscure caverns, of which the mere idea excites our horror and revolts our feelings.
Many people consider this privilege of government as no more than a political measure; and as they hope, apparently, to be always its agents, and never its objects, they think it very well contrived for public repose, and for good order. Others, more scrupulous, yet only regard it as a private injury. But the danger is much greater. In another work, I have developed the dangers of arbitrary power, with respect to religion, morality, the intellectual faculties, industry, social dignity, and private happiness.' In retracing the subject, I have been impressed with additional reflexions.
Confer on a government the power of assailing individual liberty, and you annihilate all the securities which are the primary condition, and the only end of the assembling of men under the guardianship of law.
You wish for the independence of courts—of judges, and of juries. But if the members of Tribunals, if judges, and juries could be arbitrarily arrested, what would become of their independence? And what would be the consequence, if tyranny were permitted against them, not for their public conduct, but for sec causes ? Government, certainly, would not seize their persons,
'On the Spirit of Conquest and Usurpation, p. 133—161, 4to. eda
while they were seated in that apparently impregnable sanctuary, where law had placed them. If they listened only to their own conscience, in despite of government, the latter would not even dare to arrest or banish them as judges or juries, but they would be arrested or banished as suspected individuals. At the most, they would only be respited till the obnoxious verdict was forgotten, and some other motive would be alleged for their persecution. It would no longer be then a few obscure citizens, whom you had delivered to the tyranny of the police; you would have given up all the courts, the judges, the juries, and consequently all who are ever accused, to their mercy.
In a country where the government decided on arrests or banishments, at pleasure, it would be a mere form to grant some security to the press, for the benefit of free inquiry. If a writer, though without transgressing the law, should clash with the opinions, or censure the acts of government, he would not be arrested or banished in his character of author, but as an obnoxious individual, and without any assigned cause.
But where is the need to substantiate so evident a truth by examples ? All public duties, all private situations, would be equally exposed. The importunate creditor of an agent of government, the intractable father who should refuse him as a son-in-law, the troublesome husband who defended his wife's virtue, the formidable rival, or the vigilant guardian, would of course not be arrested or banished as creditors, as fathers, as husbands, as guardians, or as rivals. But as government may arrest or banish them for secret reasons, where would be the pledge of their not forging these fictitious reasons ? What would be the risk? It would be granted, that they need give no legal reason; and as for the tribute to public opinion which prudence might dictate, who does not see, as nothing could be investigated or proved, that calumny would be a sufficient motive for persecution?
Nothing is safe from oppression, when it is once tolerated. No institution can escape it. It shakes all to the foundation. It deceives society by forms, which it makes impotent. All promises are but perjuries, all pledges but snares for the unhappy persons who trust in them.
Let it not be said that I accumulate unfavorable hypotheses. I joyfully acknowledge, that nothing similar exists at present. I rea peat what I said four months ago. Our restoration is happily distinguished from that of England. Interests have been more respected, and inflammatory exaggerations more habitually repressed. A spirit of moderation presides in the councils of our monarch : his virtues are the object of veneration, his intelligence an incentive to hope, his intentions a powerful motive for security. But the reign of enlightened and wise princes is exactly the period for surrounding liberty with all its bulwarks. They alone permit salutary precautions, because they have nothing to fear from them. Strange sophism! When there is no tyranny, when we have the happiness to live under a just and mild sovereign, under a King like our's, we are told that all precautions are superfluous. But if tyranny should commence, under any other reign, how would you take these precautions ? It is only when they are superfluous that they are possible. They are impracticable when they are necessary.
Otherwise, is it true, that the justice and bounty of the sovereign, the wisdom and purity of his ministers, are adequate pieservatives? Have not the sovereign and his ministers numerous agents, the more powerful, as the immediate execution is entrusted to them, and the more able to inspect, because they are less observed ?
When despotism is eulogized, it is always with a view to the supreme possessor of authority. But our connexion with its inferior agents is inevitable, and more immediate. When you permit banishment, imprisonment, or any other infliction unauthorised either by law or by trial, you do not put the citizens into the power of the King, nor even into that of ministers, but you abandon them to the lowest agents. They can molest them by a particular order, and justify this measure by a false tale. They triumph, provided they deceive, and in this they are certain of success. For, as the sovereign and his ministers are entrusted with the general administration, for the increase of the state's prosperity, of its dignity, its riches, and its power, the very extent of their important duties makes it impossible for them to examine the details of individual interests; which are minute and imperceptible, when compared with the whole, and yet which are not less sacred, as they involve the life, the liberty, and the safety of innocence. The