passion, nor is she for them a misty nymph with whom a mortal falls in consuming love, nor is she the antiquated portrait of an ancestor, looked upon with respect, perhaps even with factitious reverence, but without life-imparting actuality.1

1 Since the foregoing chapter was originally written, history has farnished us with many additional and impressive illustrations of some of its contents. Numerous French writers, anxious to vindicate for France the leadership in the race of civilization, yet sadly aware that liberty exists no more in France, have declared that the essence of liberty exists simply in universal suffrage, or, if they abandon even the name of liberty, that the height of political civilization consists in two things-universal suffrage and the code Napoleon, with the proclamation of which it has been stoutly maintained a French army would find the conquest of England and the regeneration of Italy an easy matter. Once the principle of universal suffrage established, the French statesmen of the imperial school demand that everything flowing from it, by what they term severe or uncompromising logic, must be accepted. This peculiar demand of severe logic is, nevertheless, wholly illogical, for politics are a means to obtain a high object, and the application to certain given circumstances is of paramount importance. We do not build houses, cure or sustain our bodies, by logic; and a bill of rights is infinitely more important and intrinsically true, than the most symmetrically logical rights of men. The "severe logic" leads, moreover, different men to entirely different results, as, for instance, Mr. Louis Blanc on the one hand, and the imperial absolutists on the other; and, if universal suffrage, without guaranteeing institutions, is the only principle of importance, the question presents itself immediately, Why appeal to it on rare occasions only, perhaps only once in order to transfer power, and what does universal suffrage mean if not the ascertaining of the opinion of the majority? If this be the object, then we must further ask, Why is discussion necessary to form the opinion suppressed, and how could Mr. de Montalembert be charged with, and tried for, having attacked the principle of universal suffrage in a pamphlet, the whole object of which could not be anything else than influencing those who, under universal suffrage, have to give their votes. This is not "severe logic."

If much has happened and been written since the original penning of this chapter to illustrate the utter falsity of universal suffrage, naked and pure, we must not omit to mention, on the other hand, works of merit which have been written in a very opposite train of thought, by men of great mark, of whom Mr. de Tocqueville deserves particular mention on account of his Ancien Régime.

CHAPTER XV.

RESPONSIBLE MINISTERS. COURTS DECLARING LAWS UNCONSTITUTIONAL. REPRESENTATIVE GOVERNMENT.

24. Ir 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, when trial becomes necessary, 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 I. 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 ser

vice of a house of representatives," which means dependent on a parliamentary majority.

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 law, for 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

It is sufficiently remarkable to be mentioned here, that Napoleon III., when the sanguinary coup d'état had been perpetrated, supported his demand of a cabinet exclusively dependent upon the chief of the state, by the example of the American president, not seeing or not mentioning that congress has a controlling power.

The following extract of a letter, written by Lord Liverpool to Lord Castlereagh, (October 23, 1818,) and taken from Correspondence, Despatches, and other Papers of Viscount Castlereagh, second Marquis of Londonderry, 12 vols., London, 1853, is interesting, if we consider how thorough a tory minister Lord Liverpool was:

"Bathurst's despatch and letter of Tuesday, and my letter of to-day, will put you entirely in possession of our sentiments upon the present state of the negotiations. The Russians must be made to feel that we have a parliament and a public to which we are responsible, and that we cannot permit ourselves to be drawn into views of policy which are wholly incompatible with the spirit of our government.

"Ever sincerely yours,

LIVERPOOL."

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 to the states, respectively, or to the people;" and the principle which I have mentioned may be considered as involved in it; but in the different states, where the legislature certainly has the right, as a general rule, to do all that seems necessary for the common welfare and is not specifically prohibited, the mentioned principle prevails regarding the executive.1

1 I have already mentioned the judgment given by the French court, with reference to the opening of letters by the police, in order to find out the traces of offences. I now give an extract, and shall italicize those passages which bear upon the subject above:

"Considering that if, by the terms of existing legislation, and particularly by art. 187 of the penal code, functionaries and agents of the government, and of the post-office administration, are forbidden either to suppress or to open letters confided to the said administration, this disposition cannot reach the prefect of police, acting by virtue of powers conferred upon him by art. 10 of the Code of Criminal Instruction:

"Considering that the law, in giving to him the mission to investigate offences, to collect evidence in support of them, and to hand their authors over to the tribunals charged with punishing them, has not limited the means placed at his disposition for attaining that end :*

"That, in fact, the right of perquisition in aid of judicial instructions is solemnly affirmed by numerous legal dispositions, and that it is of common law in this matter:

“That the seizure in question was made in order to follow the trace of an offence; that it resulted in the discovery of useful and important facts; that, finally, the authors of the said letters have been prosecuted in a court of justice:

"Considering, moreover, that the court is not called upon to inquire into the origin of documents submitted to its appreciation; that its mission is merely to establish their authenticity or their sincerity; that, in fact, the letters in question are not denied by their authors:

* Does not this argument, from the absence of restriction, remind the reader of that Baron Viereck, who consented to his daughter's marrying the King of Denmark, the undivorced queen living, and who replied to an expostulating friend that he could find no passage in the bible prohibiting kings of Denmark from having two wives?

26. The supremacy of the law requires that where enacted constitutions' form the fundamental law there be some authority which can pronounce whether the legislature itself has or

"For these reasons the letters are declared admissible as evidence," etc. It is pleasing to read by the side of this remarkable judgment so simple a passage as the following, which was contained in an English paper at the same time that the French judgment was given. It relates to a London police regulation concerning cabmen:

"Now, we have no wish to palliate the bad conduct of a class who at least furnish amusing topics to contemporaries. By all means let the evils be remedied, but let the remedy come within the limits of law. It will be an evil day for England when irresponsible legislation and police law, even for cabmen, are recognized and applauded by a certain public because in a given example it happens to be convenient to them. If the ordinary law is not sufficient, let it be reformed; but do not leave the making of penal laws to the police, and the execution of those laws to the correctional tribunal of the same authority."-Spectator, April 2,

1853.

1 They are generally called written constitutions; but it is evident that the essential distinction of constitutions, derived from their origin, is not whether they are written or unwritten, which is incidental, but whether they are enacted or cumulative. The English constitution, that is the aggregate of those laws and rules which are considered of fundamental importance, and essential in giving to the state and its government those features which characterize them, or those laws and institutions which give to England her peculiar political organic being, consist in cumulated usages and branches of the common law, in decisions of fundamental importance, in self-grown and in enacted institutions, in compacts, and in statutes embodying principles of political magnitude. From these the Americans have extracted what has appeared important or applicable to our circumstances; we have added, expanded and systematized, and then enacted this aggregate as a whole, calling it a constitutionenacted, not by the legislature, which is a creature of this very constitution, but by the people. Whether the constitution is written, printed, carved in stone, or remembered only, as laws were of old, is not the distinctive feature. It is the positive enactment of the whole at one time, and by distinct authority, which marks the difference between the origin of our constitutions and those of England or ancient Rome. Although the term written constitution does not express the distinctive principle, it was nevertheless natural that it should have been adopted, for it is analogous to the term lex scripta, by which the enacted or statute law is distinguished from the unenacted, grown and cumulative common law.