other branches of the state. “There are in a monarchy," says the celebrated M. de Clermont Tonnerre," two distinct powers, the Executive, which is invested with direct prerogative; and the Royal power, which is supported by veneration for long-established usages and religious traditions." Hitherto, the usual divisions of government have been into Executive, Legislative, and Judicial: but, when any of the springs get out of order, there must exist somewhere a power that is capable of adjusting them. That power cannot belong to any of the springs themselves, since it would thus be enabled to destroy the others; it must come from without; and its operation must be of a neutral character, in order that it may be applied whenever it is necessary, and maintain a preserving and re-establishing character, without any intermixture of hostility. Such is the power vested in the person of the king by a constitutional monarchy. His interest is never to derange the equilibrium, but to maintain it in all directions. If in England ministers act so as to lose the confidence of the nation, the king removes them: if the House of Commons falls (as in 1784) into a similar predicament, they undergo a dissolution; and, finally, if the judges have applied the penalty of a general law in the case of an individual who was intitled to mercy, the king mitigates the sentence, or grants a pardon. The error of almost all governments has been to create no separate power with this neutral authority, but to vest it in one of the active branches of the government. When it has been united to the legislative power, we have found laws, which ought to have been limited to specific objects, extended to all, and arbitrary and tyrannical acts have gone on without restriction: hence the excesses of popular assemblies in the Italian republics, those of the Long Parliament in England, and those of the French Convention. Again, when this authoritative influence has been fixed directly in the Executive power, despotism has ensued, as was the case at Rome with the dictatorship.

No history shews more clearly than the Roman the necessity of the existence of this neutral power. After the various agitations of that celebrated republic, we see the people and the senate seeking alternately for security: but, as both fixed this requisite in their own body, the newly acquired security became little else than an instrument of hostility to their opponents. When popular insurrection threatened the overthrow of the state, recourse was had to dictators, magistrates entirely devoted to the Patrician class; and when the oppressed Plebeians could not overset the dictatorship, they had recourse to the appointment of tribunes, who again were wholly on their side. Hence fresh struggles arose, with no other change than the acquisition of a reinforcement to one party. Voting by centuries was as aristocratic as voting by tribes was democratic. The plebiscita, decreed without the concurrence of the senate, were notwithstanding obligatory on the Patricians; while the senatus-consulta, emanating from the Patricians alone, were not the less binding on the people. In private life, when individuals quarrel and commit injury on each other, a neutral authority intervenes and decides on their respective claims; this authority is the judicial power. Such, in like manner, is the operation of the royal power in maintaining the political equilibrium.'

The

The next topic discussed by M. DE CONSTANT relates to the expediency of having a chamber of hereditary legislators. Since talent cannot be handed down from father to son, it has long been a favourite opinion with several respectable writers on government, that establishments of this description are not useful to a state; and the democrats of Paris, twenty years ago, had no hesitation in pronouncing them altogether absurd. M. DE C. is of a very different opinion, and affirms that the want of an hereditary nobility in a monarchical state cannot long fail to be productive of the overthrow of public liberty: a conclusion which he founds on the argument that the only way of enabling a ruler to dispense with military coercion is to surround him with men who have an interest in defending

him.

What Englishman would consider the royal power as stable, if the House of Peers were suppressed? Some politicians may propose to allow the nobility to retain their titles, and to vest the legislative power for life in a certain number of individuals, who would form an Upper House distinct from the peerage: but an hereditary nobility, without functions, could not fail to be insignificant in comparison with life-magistrates, who were invested with important duties. They would be like the French nobility a few years before the Revolution; that is, a body decorated with titles, but without any specific use, and consequently without strength. Their preeminence was merely negative, and arose rather from exclusions of the lower orders, than from any particular advantage possessed by themselves. Were not the Upper House hereditary, a plan must be adopted for electing its members; and it is very doubtful whether a chamber appointed for life by the king would have sufficient strength to counterpoise another chamber elected by the people. Moreover, the want of a fundamental difference in their constitution would have the effect of placing the two bodies in rivalship with each other. Amid all this perplexity, let us not refuse to be guided by experience; but let us look to England, where we see the existence of an hereditary peerage compatible with a high degree of civil and political liberty. This peerage has not that exclusive character which alone makes inheritance odious, because every distinguished citizen may be elected into it, and enjoy from the day of his nomination the privileges of the most antient peer. A certain number of ecclesiastics, of whom few are the sons of peers, attain these dignities as bishops. The younger branches of noble families sink into the mass of the people, and constitute between it and the peerage a link similar to that which is formed by the peerage between the nation and the

crown.'

The Removal of Ministers is a very difficult question, either for a republic or an absolute monarchy, since in both the executive power often requires a kind of revolution to overset it. The Florentines had a Ballia, or council extraordinary, created at the moment, and invested with the power of removing all public officers, but it partook too much of its stormy origin. This council ordered imprisonment,

imprisonment, deprivation of property, and even the infliction of capital sentences, because it had no other means of stripping of their power the men who were in office; and the consequence was that, after having excited anarchy in Florence, this council became the principal instrument of the power of the Medicis. Such authorities are in a despotic government the allies of the ruler, and in a republic they are inimical to freedom. Our object should be a constitutional power, possessing all that was useful in the Ballia, and devoid of its dangerous attributes; that is, a power which, without condemning, imprisoning, or proscribing, removes those men or those assemblies that have become dangerous to the state. In England, we see the existence of this power in what we have called the neutral influence of the crown; in other words, the royal power detached from the executive. There we perceive ministers removed without being prosecuted a course which will be found, like all other just measures, to possess a variety of advantages. The ex-minister, being in no danger, has no inducement to resist from despair; and the public body, which is about to be dismissed, has no cause to adopt violent resolutions, under an impression of peril. In either case, the individuals return tranquilly among the body of citizens, and have more or less a prospect of future elevation.

An Upper House, composed of hereditary members, should not be limited in point of number, because, neither the people having the power to erect it nor the government to dissolve it, a dangerous party might be formed among its members. The parliamentary majority of the Coalition-ministry in England in 1783 would have been much more formidable, had they not known that the king could, by an exercise of his prerogative, out-number them in the house of peers. This miserable error existed among many others in the late French senate. It was both fixed in number and incapable of dissolution; so that it and the government were apparently opposed to each other, without the power of either being disarmed.

may be objected, that the prince may degrade the peerage by too extensive creations: but he is personally interested in avoiding any such degradation: and, should he trespass, experience is likely to bring him speedily back to the right path.'

One of the great points of discussion, in the beginning of the French Revolution, regarded the question of the veto or royal negative on bills which had passed the National Assembly. The democrats took occasion to disseminate the notion, that to vest a power of such a nature in the crown would be equivalent to the erection of an insurmountable barrier to the enactment of good laws. A bad minister, they said, would merely have to advise the king to withhold his assent, and the hopes and efforts of the greatest patriots would be completely frustrated. No language can convey an adequate idea of the impressions excited among the inhabitants of Paris by such insinuations, in those days of enthusiasm for liberty. The members who had spoken in favour of the vete were accounted traitors to their

country;

country; while no epithet of praise, or testimony of gratitude, seemed too great for those who maintained an opposite opinion. The majority of reflecting men leaned, on this as on other occasions, to the side of moderation and the example of England: but their voice was drowned in the noise of popular fervour, and the veto experienced that fate which was soon destined to overtake the other safeguards of rational government. M. DE CONSTANT has no hesitation in espousing the ministerial side of the question.

Royal Negative. To vest legislative power in the hands of the executive body would be a very bad plan, inasmuch as the latter have various means of sheltering themselves from the operation of law. Let us separate, therefore, the enactment of laws from their execution, but limit the power of the legislative body, that we may not have a class of men passing acts without a due consideration of the existing objections. A king and his ministers have to encounter, in their executive functions, the test of experience; a test to which a body merely legislative is not subjected, the business of the latter being not to perform but to will. Nothing is more unfortunate than a power obliged to lend its support to a law against its conviction, since every obstacle is to it a secret triumph. Moreover, a legislative body is in great danger of multiplying its laws, because their number flatters our natural propensity to act, and to believe ourselves to be of importance. Hence the necessity of the royal negative, both for the dignity of the crown and for the actual execution of the law.

As to the Power of proroguing and dissolving, no liberty can exist in an extensive country without representative assemblies invested with powerful privileges: but these assemblies are not without their danger; and the interest of liberty itself calls for the adoption of precautions to repress their irregularities. Representatives with boundless power are no longer the defenders of liberty, they are candidates for tyrannical influence; and such a tyranny is the more dreadful on account of the number of the tyrants. An assembly which cannot be repressed is of all powers the blindest in its movements, and the least guided by calculation even on the part of those who compose it. An indiscreet activity on all subjects; a desire to please the impassioned part of the people; the opposition engendered by resistance; obstinacy in error; rashness at one time, and at another the influence of enthusiasm or terror; the absence of moral responsibility; the certainty of escaping by their number from the shame of cowardice, or from the danger of presumption :- all these are the vices of such assemblies, when unrestrained by a proper equilibrium. A mixed multitude of the people is open to generous impressions, being almost always overcome by sympathy, or accessible to the demands of justice: but the representatives of a people are neither authorized nor disposed to act in this manner; and it often happens that the advocates of moderate measures are branded with the name of traitors. In vain do we reckon on the permanency of a majority moderately

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moderately disposed, unless it possesses a security in a constitutional power distinct from the assembly. A compact minority acting offensively, arguing at one time and threatening at another, will sooner or later get the better of the majority. Violence unites men because it blinds them with regard to all that is not their direct object; while moderation has a disuniting tendency, by leaving the mind open to particular considerations. The Assemblée Constituante contained many estimable men, and not a hundred individuals who wished to overturn royalty; yet how often was this assembly forced to pass acts contrary to its own conviction! From one end to another of its sad career, it was dragged in a direction opposite to its wishes. Let not these arguments be considered as absolute objections to the appointment of representative bodies, since without them there would be no animation in the body politic. We contend only for the repression of their irregularities; a repression not to be accomplished by the royal negative, but requiring the decisive alternative of dissolution. Without this alternative, the executive power might be placed in direct hostility to the representative, and the personal inviolability of the latter would become a chimera.

Administration of Justice. It is indispensable to the independence of the judges that they should be beyond the power of removal, except in cases of absolute delinquency. The plan of electing them periodically by the people, or of appointing them for a time by the government, is equally at variance with the desired independence. During the twenty-five years of the French Revolution, we have seen no liberty on the part of our courts; the different parties having in their turns taken possession of the instruments and forms of law. The courage which makes us brave death in battle is much easier than the resolute avowal of an individual opinion amid the threats of the factious or the tyrannical, As to the appointment of judges, I have no hesitation in thinking that it ought to rest with the king; the errors of the royal function being necessarily less frequent than those of the people. The power of mitigation or pardon is vested in the king, on the principle that a law may be just in a general sense and too severe in its particular application : an offence substantially the same as the one contemplated by the law may differ from it in a way that does not admit of legal definition; and the power of pardoning is nothing but a method of making the general law correspond with the equity which is due to the individual.

The Responsibility of Ministers is a question which would be the most impracticable of any, did we not recognise the existence of a Royal power distinct from the Executive; and, on that account, republican governments have always failed in their attempts to establish responsibility. An hereditary monarch may and ought to be above responsibility; his attributes belonging not to him but to his whole race: but, in the case of ministers, responsibility ought to commence with the immediate author of the act in question.'

This writer lays little stress (p. 53.) on the power of holding the purse of the nation: but he reasons at some length on the objections to the refusal of supplies to government in time of

war,