« ZurückWeiter »
it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards ; it insists on securities; it entrenches itself behind strong defences, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and therefore it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to its legal authority. Far otherwise. It seeks for duration and permanence. It looks before and after ; and, building on the experience of ages which are past, it labours diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge ; if we will then ordain that the legislator shall himself be that judge ; and if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries.” 16
16 Page 122, vol. iv. of the Works of Daniel Webster. I have not transcribed this long passage without the permission of those who have the right to give it.
To my mind it appears the most Demosthenian passage of that orator.
Unity of power, if sought for in a wide-spread democracy, must always lead to monarchical absolutism. Virtually it is such, for it is indifferent what the appearance or name may be, the democracy is not a unit in reality; yet actual absolutism existing, it must be wielded by one man. All absolutism is therefore essentially a one-man government. The ruler may not immediately take the crown ; the pear may not yet be ripe, as Napoleon" said to Sieyes; but it soon ripens, and then the avowed absolute ruler has far more power than the king whose absolute power is traditional, because the tradition itself brings along with it some limitations by popular opinion. Of all absolute monarchs, however, it is true that “it is the vice of a pure (absolute) monarchy to raise the power so high, and to surround it with so much grandeur, that the head is turned of him who possesses it, and that those who are beneath him scarcely dare to look at him. The sovereign believes himself a god—the people fall into idolatry. People may then write on the duties of kings and the rights of subjects; they may even constantly preach upon them ; but the situations have greater power than the words, and when the inequality is immense, the one easily forgets his duties, the others their rights."'18 Change
Perhaps I am biased, because the extract maintains what I have always asserted on the nature of liberty, and what has shown itself with such remarkable clearness and undraped nakedness in the late French affairs.
17 I mean Napoleon the Real.
General Rapp, first aid of Napoleon, gives a good picture of the false position of an absolute monarch, in his memoirs, Paris, 1832, ch. 2. He says that " whenever Napoleon was angry, his confidants, far from appeasing him, increased his anger by their representations. Your majesty is right,' they would say: 'such a person has merited to be shot, or disgraced, or discarded. ... I have long known him to be your enemy. Examples are necessary; they are necessary for the maintenance of tranquillity.' When it was required to levy contributions from the enemies' country, and Napoleon would perhaps ask for twenty thousand, he was advised to demand ten more. If it was the question to levy two hundred thousand men, he was persuaded to ask for three hundred thousand; in liquidating a debt which was indisputable, they would insinuate doubts on its legitimacy, and would often cause him to reduce to a half, or a third, and sometimes entirely the amount of the demand. If he spoke of making war, they would applaud the noble resolution: war alone would enrich France; it was necessary to astonish the world in a manner suitable to the power of the great nation. Thus it was, that in provoking and encouraging expectations, and uncertain enterprises, he was precipitated into continual wars. Thus it is that they succeeded in giving to his reign a character of violence which did not belong to him. His disposition and habits were altogether good-natured. Never a man was more inclined to indulgence, and more awake to the voice of humanity. I could cite thousands of examples.”
the terms, and nearly every word applies to absolute democracies with equal truth.
Absolute monarchs, indeed, often allow free words. The philosopher Kant uttered remarkable political sentiments under Frederic the Great, and Montesquieu published his Spirit of Laws under the auspices of Madam de Tincin, the chanoiness mistress of the Duke of Orleans, Regent of France, and successively of many others. Montesquieu was favoured by these persons, for very frequently people have a sentimental love for the theory of liberty. But neither Kant nor Montesquieu would have been suffered to utter their sentiments, had there been any fear whatever that they might pass into reality. There is an immense difference between admiring liberty as a philosophical speculation, loving her like an imaginary beauty by sonnet and madrigal, and uniting with her in real wedlock for better and worse.
Whether Napoleon was good-natured or not need not be discussed here, nor is it important to state that he was not so weak as represented by Rapp; but it is instructive to see how a man like Rapp, an uncompromising absolutist, unawares lays bare his own opinion of the character of an absolute monarch, because he is absolute.
RESPONSIBLE MINISTERS. COURTS DECLARING LAWS UN
CONSTITUTIONAL.. REPRESENTATIVE GOVERNMENT.
24. It is not only necessary that every officer remain individually answerable for his acts, but it is equally important that no act be done for which some one is not responsible. This applies, in particular, so far as liberty is to be protected, to that branch of government which directs the military. It is important, therefore, that no decree of government go forth without the name of a responsible person ; and that the officers, or single acts of theirs, shall be tried by regular action at law, or by impeachment; and that no positive order by the supreme executive, even though this be a king, as in England, be allowed as a plea for impunity. A long time elapsed before this principle came clearly to be established in England. Charles the First reproved the Commons for proffering their loyalty to his own person, while they opposed his ministers and measures which he had personally ordered. England in this, as in almost all else that relates to constitutional liberty, had the start of the Continent by two hundred years and more. The same complaints were heard on the Continent of Europe, when lately attempts were made to establish liberty in monarchies; and more will be heard when the time of new attempts shall have arrived. Responsible ministers, and a cabinet dependent upon a parliamentary majority, were the objects of peculiar distaste to the present emperor of the French, as they have been to all absolute monarchs. His own proclamations distinctly express it, and his newspapers continue to decry the servile position of government when ministers are in the service of a house of representatives.
In unfree countries, the principle prevails that complaints against the act of an officer, relating to his public duty, must be laid before his own superiors. An overcharge of duty on imported goods cannot there be tried before a common court, as is the case with us.
25. As a general rule, it may be said that the principle prevails in Anglican liberty, that the executive may do that which is positively allowed either by the fundamental or other law, and not all that which is not prohibited. The royal prerogatives of the English crown doubtless made the evolution of this principle difficult, and may occasionally make clear action upon it still so; but the modern development of liberty has unquestionably tended more and more distinctly to establish the principle, that for everything the executive does there must be the warrant of the law. The principle is of high importance, and it need hardly to be added that it forms one of the prominent elements of American liberty. Our presidents, indeed, have done that for which many citizens believed they had no warrant in the lawfor instance, when General Jackson removed the public deposits from the bank of the United States, but the doubt consisted in the question whether the law warranted the measure or not. It was not claimed that he could do it because it was nowhere prohibited. The constitution of the United States declares that “ the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved