EXECUTIVE POWER IN FREE COUNTRIES .
It is only the hope to make the experience of past ages useful to coming generations, which gives a great interest to the study of history. If we could learn nothing of the art of making nations happy, or if we could never make use of what we have learned, it would be wiser to turn away our eyes from the ealamities without number which have afflicted our race. That oppression, those vices, those massacres, those tortures, those foolish passions, the pictures of which we so often find in every age and in every country, would then be portrayed only to rend our hearts by the recollections of the past, and to make them tremble for the future. The Asiatics, who believe in fatalism, who regard all improvement as absurd, who renounce all influence on the social body to which they belong, are consistent when they shut themselves up in the present. To their eyes history is a royal and not a national science. The Gengis, the Timours, may contemplate with interest the monuments of ravages on the earth; they may demand a chronicler to relate their battles, in the same spirit which made them raise pyramids of heads in those places where they had destroyed a nation; but the Arabian turns away his eyes from the chronicles of Abulfarage, as he turns away his plough from these heaps of bones.
It is not thus that the European judges for himself of the past and of the future. He thinks he sees that even the blood with which the earth has been so often soaked produced sometimes good fruit. He compares ages, he follows the human race extending and multiplying on the globe; and though he has often the grief to see it make retrograde steps, it seems to him, however, that he can also perceive a general progress. The European congratulates himself that he has been called into life in the nineteenth century, and not in any of those which preceded it. He acknowledges the numerous conquests that have been made over barbarism, the numerous and crying abuses that have been destroyed, the odious causes of crime and suffering which it does not seem likely will be repeated; and though even the progress of social science and of civilization have been sometimes endangered by the vigorous resistance of what may be called the spirit of darkness; although posts which seemed gained have been sometimes retaken by the enemy, yet the European dares to believe that a better future is approaching, and he supports with more fortitude the ills he suffers in the hope that his descendants will be delivered from them.
It is true that to the European this confidence in the future is, perhaps, only a flattering dream, but to the American it is become in our time almost a certainty. The nations of the European races, established on this rich continuen with all the inheritance of our civilization, of our science, of our philosophy, of our dearly acquired experience, are there destined to recommence social life, without any of those burdens with which we are so heavily laden. They know all the improvements of our agriculture, and they will have for a long time to come abundance of virgin lands, which at present belongs to no one. They know our trades, our machines, all the powerful assistance which science has given to human industry, -and they are not loaded with an immense class of day-labourers, who ask for work, and who seem on the point of perishing if a machine is made to supersede the labour of their hands; they know our systems of taxation, our modes of finance, our credit, and they have scarcely any debts. They know all the developments which our skilful civilians have given to the laws which regulate property, and they have much fewer subjects of litigation; they have adopted all “those guarantees which the friends of humanity have secured to those persons brought before criminal justice, and they have no men forced to rob by universal poverty; they have profited by our discoveries in the construction of arms, of vessels, and of fortresses; they know our tactics, they have strength to defend themselves, and they have no neighbours, no natural object of ambition. May they equally profit by all which our long experience has put us into a situation to learn of the difficult science of government, without being led into error by the necessary falsehoods to which European politicians see themselves reduced, without being prevented from looking at those fundamental questions from which we so often turn away our eyes.
It is at this moment, when Columbia, Mexico, Chili, Buenos Ayres, Brazil, are employed in raising the social edifice from its foundation, that it appears to us important to classify, to analyze the political experience of Europe, of which we may offer, as it were, an inheritance to our younger brothers . We cannot be accused of presumption in endeavouring to be useful to them; the theories of which we wish to speak to them are not the creatures of our imagination; it is not by reason of any superiority that we are the depositaries of them; if we possess them, it is because we have paid for them with our blood, and with that of our fathers and of our forefathers. We have suffered enough to have a right to say to them, Behold the precipice, avoid our steps, and profit by our example. What nobler object of ambition, however, can be offered to those who have studied the fate of the human race, than that of assisting nations, destined to cover a third part of the habitable globe, to avoid some fatal errors? What a moment is that in which the fathers of nations are weighing resolutions on which will depend for many ages the fate of millions of men! What an imperative duty to speak the truth, when we know that it has been so often perverted, and that weak compromises, sometimes for the sake of power, sometimes for popularity, have gained credit for a crowd of errors which no one any longer thinks of contradicting.
The editors of the Annals of Legislation published at Geneva were in favourable circumstances for taking into consideration the highest questions of constitutional policy. Citizens of a republic, and writing under the protection of its laws, they were authorized even by the nature of the the nature of the government of their country, to inquire what is the essence of power, and what are its foundations in public utility. To them it was permitted to lay aside all prejudice, all pretence to sympathetic affections, in order to rest only on realities. Whenever they entered on constitutional questions, they addressed themselves by preference to nations who were then labouring to give to themselves fundamental institutions; they fixed their eyes more particularly on the citizens of those new states which the revo]utions of America had left as a clear field, and where the legislator is fettered neither by the rights of families, nor by those of orders, neither by powerful prejudices, nor by hereditary affections. At this moment circumstances allow French writers almost as much liberty of opinion. Whenever a part of the ancient edifice subslsts in all its strength, it is not the time to think of the best means of superseding it. The nations of Europe are completing their institutions; the Americans are raising theirs from the foundation. In regard to the first, time may have established rights; for the second, it has left only experience. The citizen of an old state must study the ground on which to combine its peculiar affections and recollections with the rights that it has acknowledged. For the founders of the new states which we see unfolding themselves, it is sufficient to have present to their thoughts the result of what experience has taught Europe in regard to the first of all sciences.
We propose, at this time, to employ ourselves in considering Executive Power, because it is that part of constitutive policy respecting which Europe has acquired most experience, whilst, at the same time, the writings which this experience has produced may have given authority to the greatest number of errors. In fact, in our old states which have succeeded other old states, there have not always been sufficient guarantees, as respects legislative and judicial power; there has always been a government, but the public good has not been always kept in view: it has always been an object to make the government solid, prompt, and energetic; it has not always been one to make the laws the expression of tbe general will, to make judgments the application of the principles of eternal justice; but the great object has been to secure command and obedience. Men have always wished to oppose the perpetuity of the state to the ephemeral life of man, and to the fluctuations of his will. The construction of what J. J. Rousseau called the Prince, or what is now called the Executive Power, makes the distinctive character of monarchies and republics, and Europe can compare them in her history; she has seen all kinds of hereditary monarchies, with the infinite modifications of hereditray, right primogeniture, and a division among all the children; the exclusion and non-exclusion of females; a testamentary right to the crown, or the improseriptible right of the princes of the blood: she has also seen numerous elective monarcldes; with the right of election contided to the whole nation, as in the ancient Teutons; to armed warriors or the equestrian order, as in Hungary. in Transylvania, and in Poland; to those whom the nation considered the wisest, as in Venice; to a small conclave of princes, as in the Germanio empire; to the heads of religion, as in the Pontifical states, and the sovereign bishoprics of Germany; to men who had made a vow to renounce the world, as in the sovereign abbeys of Fulda, of Kempten, of Musbach, &c.; to women rigorously shut up in cloisters, as the abbesses of Quedlinbourg. Lindau, Herforden, &c.
Again, with respect to republics, Europe can in her history compare executive power confided to one man, which may be regarded as an elective and temporary monarchy, with that which was exercised by two or more colleagues, and with that which was delegated to councils. Among these there are some of which the members were elected for life; others where they were all renewed at once; others by rotation. If the executive power has never been constituted in a completely national manner, it is not certainly because a variety of combinations have been wanting; and if our history presents us no model worthy of imitation in every respect, it is rich at least in lessons of what ought to be avoided.
Nevertheless, no subject has been treated in a more superficial manner by political writers, nor more frequently disguised by false reasonings, which through the power of repititan are eonfounded with public opinion. No part of political saienee has been more carefully excluded from controversy. Thus for example, at a time when Europe contained far more elective than hereditary monarchies, there can scarcely be found one writer who has dared to appreciate their comparative advantages: the question between them has been supposed to be decided by allegations, the examination of which has never been allowed. In the same way, in half Europe the monarchical crown may descend to females; in the other half, females and their descendants are excluded in perpetuity. Numerous writings, where the succession was disputed, had for their object to found the right on the fact; no one has dared to enter on the principle. History is full of the consequences of these fundamental laws; wars of succession, countries united by marriages, the loss of independence which had been defended by seas of blood, and afterwards abandoned to hereditary chances, are related in every page; yet no publicist, as far as I know, has endeavoured to compare the advantages resulting to nations from the order of succession established in France, with those of that established in England.
This voluntary blindness does not prevail among slaves only; in free countries, where all political subjects have in their turn been the subjects of long debates, these alone have been constantly avoided. In fact, discussion may precede the establishment of legislative and judicial power: it cannot begin till after the establishment of executive power, and as soon as that exists, it will not permit it. From the first day, from the first hour of the existence of a nation, it must have chiefs to direct its efforts, to regulate what it must sacrifice, to secure its defence. These chiefs, who have in general existed before national deputies, and before all political writers, became, to these last, facts which they were obliged to admit, and by which alone they could regulate other political institutions.
We are not in this situation; we endeavour to discover sincerely, but with perfect freedom, what is the constitution which it is best to give to power, that it may be truly national, and that its interests may be identified with those of the nation whom it represents. With this object, after some preliminary reflections on the institution of social power, we shall pass in review, with all the impartiality of which we are capable, the different forms of this power which Europe has experienced.
ON THE PRINCE, OR,
ON THE INSTITUTION OF THE SOCIAL POWERS, AND ON THEIR BALANCE.
Men who, reduced to their individual efforts, found themselves unable to contend with the powers of nature, obtained more happiness and more security by associating together. The spirit of association distinguishes the species, and the essence of their reciprocal engagements, whether tacit or expressed, has always been to aim at one common end, and to submit their reason, their will, their power, to that general will, in which they all concur. As soon as men begin to unite and act on a common plan, we see the same beings who before were the slaves of the elements, and of all their inclemency, subdue nature, and change the face of the earth. Men associated together in their labours have, by opening the inundations of the Nile, created Egypt; by forming dikes against the ocean they have created Holland. Countries now infected by pestilential vapours, will, by the spirit of association, be restored to salubrity, and become populous and rich; the vast regions which are watered by the Orinoco, and. the Maranon, will one day rise from beneath the waters; whilst despotism, which isolates man, has changed into a desert Asia Minor and Greece: it has made the vegetating earth of mountains disappear, it has covered with gravel the loam of the plains in countries once famed for their fertility; everywhere nature is stronger than isolated man, whilst human society can always subdue nature. Of all associations, that which constitutes nations is the most vast, and the most energetic; it has more strength, it has more wealth, it has more duration, it has more stability, than any of those created by individual interests; the opinion of all is of more value than that of each one. If government were only the expression of this general will , if its power were only the national power, and acted without any obstacle, we should be astonished at the wonders which it would be able to accomplish. Then we should without fear confide to the government all that is most precious to us, even to the care of our own reason, the direction of the education of our children, the worship of our churches, the employment of all our faculties. Now we suspect, not without reason, that what it would have us do, is for its own interest; but how strong would the human species become, if it executed in common what it willed in common, and what wonderful progress would it be seen to make, if it was not necessary to distinguish between confidence in its government and confidence in itself!
It has ever been one of the first principles of constitutive policy, that all absolute power becomes tyrannical, to whatever hands it may be confided. In fact, what is called the will of all is always a fiction, since this expression supposes in the first place that all have a will, which is very far from being the case; afterwards, that all these wills are unanimous, which is impossible. Wherever it is thought that the expression of the public will can be found, it is always supposed that the majority bind the minority, and still more that all those who have not given themselves the trouble to reflect on the question which is submitted to them, or who cannot comprehend it, are bound, and even bind others, by their formal or tacit assent to the wi'll which is expressed in their name. Nevertheless, the majority may impose upon the minority the most unjust and most cruel sacrifices, and those who give a vote of confidence may, if they allow themselves to be deceived, fatally sacrifice their own rights and those of others. Thus, even should all the members of a community vote, and the majority alone make the law, this community itself would not be secure from tyranny.
The community would not only fail to secure itself against tyranny, if, instead of throwing upon goverment the charge of willing for it, it were to attempt to govern itself; it would soon perceive the ignorance, the carelessness of many members of the community to whom it could not refuse equal rights, consequently its own incapacity, the imprudence of its resolutions, the precipitation of a numerous assembly, and if the community is really powerful, the impossibility of assembling all its members. Thus, even should the nation (which has very rarely happened) be formed calmly, without opposition, without danger, still it would find itself reduced to seek the expression of the general will elsewhere than in the majority of all the members of the community; to consult different interests, different classes, instead of every individual; but the more indirect is the manner in which this will is expressed, the greater becomes the chance that this will, supposed to be general, should not be so in fact; that those who have the charge of willing for all, would consider their own advantage, and not that of the community; that they would endeavour, perhaps, to oppress this community, and that those who really do will would tyrannize over those who are supposed to will.
When it is thought desirable to confide the sovereignty to the general will, it is supposed that nothing is more simple than to know it, that it is sufficient to propose the question to be decided on, then to count the voices: this is a mistake. Three quarters of those who answer yes or no, are incapable of well understanding the question, have not thought about it, have no will respecting it; to save even themselves from their precipitation, it is necessary to give the minority the means of resisting the majority for some time, that those who are consulted may have time to enlighten themselves, and to form a distinct conception of that which they decide upon before they command, or are obeyed.
Such is the origin of that system, of a balance of power, which has been established with so much care in countries where less than a thousand individuals under the names of king, of ministere, of peers, and of deputies are supposed to express the will of many millions of citizens. The more difficulty these citizens experience in speaking for themselves, in their own persons, and in setting right the will ascribed to them, the more necessary is it to demand the coneurrenoe of many constiuted wills, for the purpose of changing what exists, because what exists is supposed to have obtained general assent. If the citizens can only manifest what they think of the labours or of the poliey of their representatives by a general election, and this only returns every seven years, the more necessary is it that a double security, should he given to what has been done in past times, and all change made so much the more difficult, the more it is doubtful whether this change is brought about by the general will.
Above all, it was important for a community to choose him, or those, who were to act in the name of all, or to direct the action of all, for their common defence, whether against the enmity of nature, or that of men. It was important to find in these, vigour, secrecy, promptitude, prudence, economy. Society depended on them for her defence against whatever is foreign and may become hostile, and for the security of the community against all private interests. To these first proxies has been given the name of Prince, either in regard to rank as the first of all; of government, as taking part for the whole; lastly, of Executive Power, because administration was regarded as the execution of the will of the whole community.
But all the qualifies which society sought for in the Prince, contributed to separate him from the nation, and to make him dangerous to her if he once came to have a different will from hers. It was required that he should be vigorous, but only against the enemies of order; secret, but to foreigners alone; prompt, but only to execute the national will; economical, but not to amass treasures except for the nation. The Prince was subjected to the surveillance of a body of men, who were to represent the people, and always to continue to belong to the people, who should declare the national will, but who, not exereising power, should not be eorrupted by flattery. It was required that these representatives should express the variable will of the moment, and the national interest at the time of their election. But as this variable will is not the only one which ought to be eonsulted, and as besides the interest of the day there is also in nations a permanent interest, which may be in opposition to that, recourse will be had to divers artifices, to combine a representation of the past with that of the present, to make other voices speak besides those of the people, to'whose deputies will be given only a share either in the legislative power, or in the body charged with the expression of the national will, to which the prince must conform.
From this watchfulness ascribed to the deputies of the people, from the remembrance also of the ancient struggle which in almost every place has successively wrested national securities from the depositories of power, has arisen a dangerous prejudice, which all the polemical writers of Europe at this time have a tendency to confirm: it is that executive power is an enemy against which it is necessary to contend; it is that there is a constant opposition between the government and the people, between the Prince and liberty. Legislators never having created power, that power has never been the true organ of the national will, the true representative of the people; all the friends of liberty have constantly laboured, if not to destroy, at least to counteract and limit it. Its action has been unceasingly restrained, retarded, reduced to indirect means; “even its existence has been often compromised, and the depositories of power, their will thwarted, their safety threatened, their self-love humiliated, have felt as much hatred of the friends of liberty, as the latter have had distrust of them; if they cannot crush them at home, they fight against them in every other part of the world; they end by having interests opposed to those of the nation, and passions still more opposed to it; and the struggle which difference of position had begun, is envenomed by every kind of animosity.
Government, however, must go on; of all the necessities of the social state, this is the first. This necessity preponderates over distrust and discontent. Hence it is concluded that the struggle between the prince and the people is the essence of free government; that an opposition is necessary to watch over administration, to criticise it, to keep it active, in order either to prevent it through shame from going too far, or to arrest in their birth culpable projects; but that it is also necessary that the administration should constantly triumph over this opposition till the moment when it is overthrown; that it should have sufficient force to resist these daily attacks; that it should be surrounded by riches, pomp, and an immense patronage, not to attain the objects required by the nation, but that it may not yield under the first attacks of the deputies of the nation. In the system of modem legislators, States maintain a kind of parliamentary gladiators, whose combats no more serve to change the constitution than those of the circus formerly did to defend Rome.
When a thing has existed for a certain time, man soon arrives at the belief that it exists necessarily. He always presents to himself ingenious masons, plausible reasons, to persuade himself that those effects of chance which are always before his eyes, are equivalent in advantages to the sublimest combinations of human intelligence. All modern publicists have regarded government as the born enemy of liberty; but they have not seen the evil of so regarding it. They have directed, with more or less ardour, attacks against this government, and they have sanctioned the opinion that the less a state is governed the more it will prosper; that whenever the citizen can act without being influenced by government, it is a conquest for liberty; that government in short, is a necessary evil, like taxes, and that every effort of the liberal party ought to tend to having as little of it as possible. Others, at the same time, to save the administration from annihilation, justify in turn its vast patronage, the ministerial influence which is exercised over opinion, and even parlimentary corruption.
Nevertheless, antiquity has shown us States, we have seen them in the middle ages, and we may see them afresh among the Anglo-American, where executive power is only an emanation of popular sovereignty, where the will of the prince is one with that of the people; where no opposition is organized, and no distrust would be legitimate; where no public strength is spent in struggles not even known; where the government, having no separate interests from those of the nation, has no arms of its own; where its power, in short, is equal to that of the nation to do what the nation wills, and null to do what it does not will.
We should not consider ourselves as refuted, should it be denied that such governments as we have supposed have ever existed. In the science which we are entering upon, facts, still more than theories, are subject to the empire of passion, and perverted by the eyes of those who observe them. It is enough that the imagination may conceive a constitution where the prince always obeys the national will, in order to prefer such a constitution to those whose essence it is that he should always contend against it. The continual struggle in which the representatives of the prince and those of the people are engaged, by nourishing intestine hatred, preparing resistance to the legitimate action of all power, and paralysing national strength, which is consumed in the opposition of one power against another, is the abuse of constitutions founded on the system of balance. The same observations apply to the contest of the press against social power, to its criticism on all persons and things, to its outrages against whoever commands. There may be a social state in which such an evil is necessary, but it is a strange error to take this evil for a good. The system of balance in the degree even in which its inventors have conceived it, that is to say, as a means of ripening deliberations, of guaranteeing existing rights, and of giving each power the means of defending itself, rests entirely on the supposition that the established order is sufficient to secure the welfare of all, and that it has general assent; that tyranny, on the contrary, can only be introduced by innovations, and that the door to these should always be opened with extreme difficulty, since they have always against them the prejudice of not having been brought forward by the general will. Thus there is a sort of absurdity in beginning a revolution by establishing a system of balance; it is putting drags to the four wheels at the moment of starting the carriage on its career. When a nation determines on a revolution, it proclaims loudly enough by that, that the order which has been long established has not general assent, that it fears tyranny from its institutions, not from innovations, and that far from willing what is, it submits to immense dangers and immense sacrifices, that what is, may cease to be. More than one European nation has not perceived that in adopting British institutions, they were transporting defences which had been raised to preserve the rights of a free people, to surround abuses which an enfranchised people wished to destroy.
Still more, the system of balance must be considered at a time of danger as employing the strength of a nation to a complete loss. Distrust is already too much excited by a foreign attack; and at the moment when a new constitution is established, at the moment of a revolution, if the foreigner joins one of the parties which will not fail to be formed in _e interior, the public and legal struggle of the constituted powers will leave no force to oppose to the enemy without. When a nation is aiming at establishing its independence, and at shaking off a yoke which all the creatures of power throughout the universe will think it their interest to strengthen, it has need of all its force: the slowness of parliamentary discussion, the resistance of hereditary interests which are opposed to the interests of the day, the habitual mistrust excited by power, and the struggle of patriots against the administration, will be so many auxiliaries in the enemy's camp. At such a moment, all struggle must cease; the national will, which has decided on the revolution, must execute it, the representation must emanate from the people, and power must emanate from the representation; the government, in short, must be only the accomplishment of that will which the deputies of the people have manifested.
It is then, especially, that a man is necessary to the revolution, a man who, identifying himself with it, puts his will in the place of that which the nation cannot yet express; a man who brings every thing to a common centre, who foresees, who combines, who keeps every thing secret, who orders without discussion, without rendering any account, and who by rapidity of thought compensates for all the disadvantages of his position. Monarchy is born of revolutions. It is in the midst of the dangers of a mortal struggle that it becomes the refuge of nations; whether it be a chief of barbarian warriors, called by the talent which he has displayed in battle to be the sole director of the conquerors he leads, as the Germanic founders of the monarchies which now cover Europe; or whether it be a hero, who having snatched a free people from the yoke, has been constituted the representative of the will of that people by his glory or his talent. Sweden, crushed to the earth, had no time to combine a legitimate representation when she acknowledged Gustavus Vasa for her organ; Scotland was enslaved when she committed her destinies to William Wallace, or to Robert Bruce; Holland was almost annihilated when she called upon William of Orange to be her liberator.
It is true, that the more the power of a man is energetic and prompt, the more dangerous is it for the liberty which he has undertaken to found. He is not an ordinary hero who, having united all power in his own hands, for the national defence, consents to lay down whatever is not necessary for this defence as soon as the danger is past; he, who raised to the place of despots, listens to nothing which would recall despotism, and remains deaf to the suggestions of his own vanity and to the servility of courtiers. Too often the defender of the people thinks only of defending his own rank, and he turns against those who had raised him the arms which had been entrusted to him to fight for them.
Thus revolution is the foundation of monarchy only when time is wanting for combinations; because the people, called to defend themselves at the moment when they are beginning to exist, can only choose their representative by a sort of acclamation, because national confidence, acquired by a popular name and acknowledged talents, is the only possible manifestation of the will of all. If the nation is already represented, if an assembly of deputies freely elected is already in possession of the confidence of all, she will take care not to relinquish a power which will be indubitably turned against her: whilst the revolution lasts, whilst the struggle and the danger are prolonged, social power ought to be administered by it, or by its delegates which are only one with it.
The crimes of the Committee of Public Safety, sullying the name of liberty, endangered her cause; it is, notwithstanding, to the close union of the Committee of Public Safety with the Convention that France owed all her means of defence. In the crisis she was experiencing, with Europe armed against her without, and so many enemies within, she would have yielded, if the executive power had been anything but an emanation of the power of the Convention; if one had not been blended with the other; if the legislature had been ever seen to command the ministry in vain, to resist them, or to experience any resistance from them.
But, it will be said, this is to establish that absolute power which becomes tyranny, in whatever hands it may be lodged; and if we must bend under tyranny, we may as well keep what we had before. “It is true; and the example which we have chosen makes us conceive all the danger of it. But war is itself a tyranny; and when existence is compromised, the rights and enjoyments of life may be sacrificed to its preservation. During a calm, it is in the combination of different voices that the national will should be sought; during the storm, one only is listened to, and that one speaks in the name of the nation. The struggle for existence calls for dictatorship, the character of which is, that it is not the less an emanation of the legislature because it is raised above the laws.
In short, when these same principles are applied to periods of repose, it is not strictly true that the security of liberty can only he found in the balance and opposition of constituted powers. Antiquity, the middle ages, modern times, have seen governments really free; where opposition was not constituted, where there was no struggle between the legislative and executive powers, where the magistracy only fulfilled what councils had willed, where one mind, one way of thinking, seemed to animate the prince and the representatives of the people. What secured liberty in such circumstances was, that the whole of the governing powers were always in the presence of the people, who had a prompt and efficacious action on them. It was not that a balance was established between the constituted powers, but that they were all and wholly in the hands of the people who reigned as the true sovereign. In the republics of Greece, or in the monarchies of Germany, the people, not numerous, and always armed in the face of a government without arms, assembled altogether on the public place; they were directly informed, viva voce, of all their dearest interests, and the strength was so evidently in their hands, that the archons of Athens in Greece, the kings of the Franks in Germany, would never for a moment have thought of resisting their will.
It was only a very small nation, easily assembled on the public place or the Champ de Mars, which could exercise this continual influence on its government: thus liberty was formerly considered as the peculiar privilege bf nations whose city was their country, or where the heriban, the convocation of the army, was equivalent to a general assembly, the comitia. The invention of the representative system extended to larger states the prerogatives of free men, and allowed the union of national power with the greatest dignity of man.
The representative system required a balance among the representatives for the safety of the represented; from it sprung opposition among the constituted bodies and the balance of their reciprocal rights. But a new progress in civilization, a progress which dates only from our own times, has placed, as formerly, the government in presence of the whole nation: with the diffusion of intelligence by printing, by newspapers, and by the complete publicity of all adminstration, the servants of the nation may become as completely dependent on the nation,—even when it covers an immense space, as in America for instance, was they formerly were on the people of Athens. Henceforward, opposition is only a means of discussion; separation of the different powers does not suppose resistance: the president or the temporary king may be without pomp, without treasure, without patronage, without means of corruption; the senate without an aristocracy, without territorial power; the elections of deputies may be annual, or every two years, and suffrage universal; the judges may be removeable; it is no longer their independence which constitutes liberty; it is wholly found in their constant and necessary submission to the general will.
However, the more the other guarantees of liberty seem to be depressed, to be, as it were, annihilated by this guarantee of publicity, the latter may, on the other hand, present dangers which were not suspected before its introduction. The English speak sometimes jokingly, sometimes with real anxiety, of this fourth estate of the gentlemen of the press- —the newspaper editors. They know, they have first taught us that a nation cannot attain to true liberty but by developing national intelligence; that to do this it is necessary that individual ideas should be brought forward, should be enlightened one by another, should be matured by discussion; that there is no power in the state to whom can be confided the right of putting bounds to thought, whilst, on the contrary, thought must control all other power. Such are the principles of the liberty of the press; but by the side of the elaboration of thought, which is a right and a necessity, is placed journalism, which is a trade. All power which is exercised with a view to lucre should excite distrust, for it is in the way of being corrupted. The daffy press is a power, and its object is not public good but to get the largest number of subscribers. It is not for the advantage of the country, it is that it may be read, that a newspaper attacks the institutions of the country, lessens consideration for those in power, plants thorns on every public career, drives from it all those who have not by intrigue acquired a front of brass, spies out the secrets of the state, proclaims its weakness or its irresolution, and reveals its projects to the enemies of the country as well as to its readers. Publicity is no doubt an immense progress in social science, but venal publicity is often an advantage obtained by crime.
In endeavouring to discover what is the most advantageous manner of constituting executive power, we are brought to ask first, whether it is better to confide it to one man or to many. If to one man, what are the comparative advantages of elective royalty, hereditary royalty, or royalty for a fixed time or presidentship? If to many, is it better to preserve the advantages of individuality by placing at the head of government two colleagues, two cousuls for example? or, on the contrary, is it best for the man to disappear, and only a council, a directory, or a seigniory (body of nobles), to appear? Again, should the executive power be one or divided? Should it act alone or be subordinate to legislative councils? We shall endeavour to collect, with fidelity, the different solutions which history offers to these questions; and perhaps we shall arrive at the conclusion, that there are a thousand ways of being free for those who are worthy of freedom.
on electif'e. royalty.
It seems that elective royalty was the first known form of government. In the small states of Greece and Italy, in those of Arabia and Germany, among all barbarous nations, or those who were making the first steps towards civilization at the origin of society, power has been uniformly seen divided among an elective chief, who had the office of commanding the nation in war, and of being its judge in peace; a council of old men, or men acknowledged as superiors, to second him; and an assembly of the people who in their turn gave advice before they obeyed. Absolute power is not an idea natural to man; it is always by some accident that it has been established, and in almost every dynasty it may be shown where it has begun. All small nations have at first seen in their chiefs, what they were in fact, the first servants of the state: they chose them for their own advantage, and supposing that they might afterwards find that there would be more stability by renouncing their free choice and trusting to the chances of heirship, it was at least not a combination which could present itself to their minds from the first. There is, perhaps, not one hereditary monarchy which has not been elective.
In the same way elective monarchy has preceded a republic as being a more simple combination. In the infancy of society, a state of war is, in some sort, the habitual state; and in war the superiority of a chief over a council is so evident for secrecy in discussion, for promptitude in decision, for the influence of example, for enthusiasm, much better excited by a man than by an abstract idea, that there is scarcely an example of the command of an army being given to the collected wills of several men. To choose a king is to choose at the same time a general and a judge; in no other respect did barbarous nations think they had any need of government. On the contrary, to choose an executive council was to oblige this council afterwards to delegate the functions of generalship to a man, who perhaps would not be always disposed to obey.
But elective kings often wished to seize on all power, and to transmit it by inheritance to their families. When they succesded, they founded-hereditary monarchies; when they failed, they had inspired so much distrust that royalty was abolished, the power which had been intrusted to them was divided, its duration was limited, and assemblies of the first men (colleges), were substituted for individuals.
Thus the primitive form of government was abolished almost everywhere; only those nations which have remained in a state approaching barbarism have preserved the too simple organization of an elective king, sharing the sovereignty with a council of old men and an assembly of all the citizens. The motives which caused it to be adopted no longer subsist among civilized nations and in modern times; war is no longer in the power of small nations; they require from their magistrates more prudence than bravery: thus they entrust their destinies to a senate rather than to a general. This primitive form, so distant from us and so little known, does not seem to deserve any further attention.
We need not, perhaps, give much more to the small elective monarchies belonging to ecclesiastics, which have been preserved to our times in so great a number in Germany, and all which we have seen destroyed; whilst the pontifical sovereign at Rome exists on the same basis, as a specimen of a social order scarcely credible, if we did not see it exist. How is it possible to conceive, in fact, that to form a statesman, a legislator, an administrator, a warrior, to obtain the union of all these qualities, not less necessary to a bishop-prince than to any other prince, of those qualities which ought alone to deserve the confidence of nations, of all that knowledge which makes the science of government more difficult, and at the same time more noble, than all other human sciences, it should be required from him who in his old age is to end by being a monarch, that he should in his youth abjure the world and all commerce with men; that he should renounce active life; that he should abhor, above all things, the trade of arms, and that he should consecrate all his time, all his energy, all his faculties, to a study which has not the least relation to the functions which he will have to fulfil; that after this education has been given to all the aspirants, the choice of the monarch should be confided to men as completely ignorant as himself of all affairs of government, that his council should be formed of those who, like himself, have abjured the world, and that even to the lowest of those employed in his administration, the fundamental condition of being in their places should be that they are not suited to such a situation?
This character of the elections in sovereign prelacies cannot be applied without some exceptions to the papacy: the importance of the dominion over conscience throughout Christendom has called statesmen to the government of the church. Popes and called cardinals were not recluses, nor men who had renounced worldly policy; and, in fact, the court of Rome has shown in a certain line an address and an energy, which perhaps no other court has equalled. However, the talent which it is most requisite for nations to find in their chiefs, is that of administration; and among all the popes, distinguished by their character or their genius, there has not been one single good administrator.
It seems as if the election of a prince-bishop should be considered as the last term of political absurdity; however accustomed we may be to find the people reckoned for nothing in the constitution, these governments seem more openly than any other to announce that they were instituted for the advantage of the prince, and not for that of his subjects. This is not all, however; there were monk-princes, princes of religious orders. In Germany, alone, were reckoned four sovereign archbishops, twenty-one bishops, twenty-nine abbots or priors, and fifteen abbesses; besides a grand master of the Teutonic order; in all, seventy elective royalties reserved to the members of the church.
These governments have all been suppressed in our times; but, what is well worthy of remark, they have all been regretted. The conditions of the election were such, that one would not have chosen for the lowest employment, a carpenter or a mason, in the way a prince was chosen; it was sufficient, however, that there was an election, to secure some kind of constitution. At each new reign, the contract between the prince and the people was renewed; the old creatures of power were changed; some ancient abuses were abolished, some new securities were often demanded. In short, as family interests were not opposed to national interests, there was found, in every age, some prince-abbot, some prince-bishop, who did not feel that instinctive hatred of liberty so common among the powerful; who consented to illustrate his reign by some useful institution, destined to last for ever, whilst he was himself only a sojourner on earth. If he feared a contest with his contemporaries, he did not, on that account, refuse to lay the foundations of rights for generations to come. Thus misers are often generous in their wills, at the expense of their heirs.
Ecclesiastical principalities had existed, as an appendage to the feudal system, in other places besides Germany; and in other places also, the right of electing the prince, however ill exercised, had been a beginning of liberty. The residence of more than one prince-bishop had become a republic. The first enfranchised municipalities in France, those of Rheims, of Laon, of Mons, were held under an ecclesiastical lord. The prince-bishops of Lausanne, of Geneva, of Basle, the prince-abbot of St. Gall, allowed Swiss liberty to spring up among them; the archbishops of Lyons and Arles, the bishops of Avignon and Marseilles, who, in the ancient kingdom of Arles, were in the twelfth and thirteenth centuries elective sovereigns, allowed under their eyes the republican independence of these four cities to become established. The republics of Bologna, of Perugia, of Ancona, were seen to flourish under the government of the Pope: even now if the pontifical government does not sufficiently provide for social order, it does not at least adopt the system of oppression of an hereditary despotism.
The state of servitude to which Europe was reduced before the establishment of the feudal system, could alone permit the institution of sacerdotal government; we cannot believe that such circumstances will occur again; and especially that nations, who can choose their government, will seek for models in those pious foundations of the middle ages. It was worth while, however, to remark what have been the effects of elective principalities, in states where some kind of right of election was the only popular liberty.
Europe, also, has tried elective royalty in some large and civilized states, and until a period not very distant from our times. Venice, with the title of republic, was an elective constitutional monarchy, where the power of the Doge was limited by that of the aristocracy alone: Venice, for a time at least, took rank among the most powerful states of Europe; and the succession of about a hundred and twenty elective monarchs caused neither troubles, nor civil wars, nor any of those inconveniences which are said to be necessarily attached to this form of government.
The defence of Christendom against Turks and Pagans was entrusted during the best half of the middle ages to the two elective monarchies of Hungary and Poland. In both these countries the people were slaves; but the king divided the sovereignty with a numerous equestrian order, warlike, and idolizing their liberty. The electoral right raised to the throne, in both these kingdoms, some of the greatest princes who have ever governed any nation; and perhaps Europe owes even her existence to this constitution, now so decried, which gave a defender to the west in John Sobieski. Elective royalty cannot however be appreciated, either in Hungary, where the hereditary attachment to certain families raised to the throne minors and females; or in Poland, where the most anarchical of all institutions, the liberum veto, annihilated all possibility of government, and delivered up the republic by turns to every local usurpation, and every foreign influence.
But the first, in rank and in extent, of the monarchies of Europe, has also been elective by right, till our times, and in fact till the sixteenth century. We might be astonished that whilst Germany, Italy, and part of France were subject to an elective crown, no one has ventured to show the advantages of this government, in opposition to that of hereditary government, if we did not know that the emperor, always desirous of transmitting his crown to his children, and habitually in a state of conspiracy against the constitution in the name of which he reigned, would have looked with much dislike on any apology for the government of his country; and that all the German princes, wishing to preserve to themselves the right of electing their chief, never thought of granting to their subjects the right of electing their lords.
The silence of those who ought to have defended elective royalty, and the noisy vindications of the champions of hereditary monarchy, have established as a principle, generally admitted by all publicists, that a nation cannot reserve to itself the election of its kings without exposing itself on every interregnum to the intrigues of its neighbours, the quarrels of the different parties, to prolonged troubles, and to civil wars. To appreciate this opinion, it will not be unseasonable to compare royalty in France and Germany. The two monarchies sprung from the division of the empire of Charlemagne; their organization was then nearly the same; their power was almost equal; but the Germanic Carlovingian race being extinct, and afterwards the house of Saxony by the death of Otho the Third in 1002, the crown became purely elective in Germany; whilst Hugh Capet, having caused himself to be elected in France, transmitted to his son Robert, by right of inheritance in 996, a crown which from that time remained hereditary. From the year 1000 to the year 1520, when the Germanic empire-—-thanks to the preponderance of Charles the Fifth-— appeared to have devolved on the house of Austria, the two great states of Europe may justly be regarded as having experienced, in nearly equal circumstances, the two opposite systems.
The empire had during this space of time twenty-five chiefs, among whom twelve or thirteen are incontestably rantked among great men. This period of time was marked by a constant progress in Germany and Italy towards liberty, public prosperity, and intelligence: at the end of this period, the monarchy was more united, and more vigorous, than it was at its commencement; but during this time it had several times appeared to be on the point of being dissolved. However, the almost condnual contest of the church against the empire was a source of troubles, independent of the elective or hereditary form of government. Of the twenty-five elections which gave heads to the empire, eleven were contested, and were followed by civil wars The church, eager to limit the imperial power, had been a party in all these ware. It was almost always the popes exited discord among the electors, or called upon the pope s who up arms. These wars, though frequent, were short; their duration added together, filled only a period of forty-three years: it must be remarked also, that we reckon as a time of war all that in which one of the two rivals, after his defeat, having retired into his hereditary states, continued to take a title which he could not get acknowledged except in his own country. We have not on the other side comprised in it the long interregnum from 1257 to 1273, because tile two rivals, Richard of Cornwall, and Alphonso of Castile, fixing their abode in England, and in Spain, did not occasion bloodshed on the soil of the empire on account of their double election.
During the same space of time France had twenty-three kings; her progress during these reigns is very inferior to that of Germany; none of her cities equalled in commerce and industry, in riches and population, the imperial and Hanseatic cities of Germany, still less the Italian republics; the people in the country were more enslaved and poor; and whilst the lower class in Germany, the landsknechts, had gained a high military reputation, those of France were unarmed, and her kings were obliged to call in foreign infantry for their armies.
The right of the kings of France to their crown was contested by Edward the Third and his grandson Richard the Second, kings of England, who pretended to be called to the throne of France by the laws of inheritance; and again by Henry the Fifth and by Henry the Sixth. If these pretensions were sometimes abandoned by other English kings, it was not because the order of succession was cleared up, but domestic disturbances or minorities prevented their supporting what they called their rights. Adding up the wars with the English for the succession to the crown of France, independently of those excited by other motives, we find that during this period they lasted sixty-three years. In fact, wars for succession are more rare than those for election, but they are much more bloody, much longer, and more ruinous.
We may strictly also reckon as a consequence of the hereditary system, the wars in which the kingdom was engaged to support the succession to other crowns claimed by the kings of France. Twenty-six years of this period were filled by the wars for the successions of Naples and Milan, which began in 1494, and were prolonged far beyond the epoch at which we stop. The wars for the successions to the duchies and lordships of France, reannexed to the crown, alone filled centuries.
Whilst election almost always raises to the throne a man gifted with some talents, or at least of an age to conduct himself, hereditary monarchies must submit to the chances of humanity. We will refrain from examining what was the character of the French sovereigns during this period; we will only remark that the chances of inheritance placed on the throne Charles the Sixth, who was mad for thirty years (1892—1421) and whose madness had the most fatal consequences for the nations subject to him.
Madness is a rare accident; minority is a necessary consequence of the system of inheritance to the crown. During these same 520 years, which form the object of our comparison, France was governed ninety-two years by sovereigns who were under the age of twenty-five, the legal age in this country, and at this epoch, for individuals to take the administration of their own affairs. She was governed fifty-six years by sovereigns who had not attained the age of twenty-one.
Now, the regency of a monarchy, during a mluority, is perhaps the worst possible form of government. It is a republic, for the sovereign pswer is divided between councils and individuals who are intended to balance one another; but it is a republic without republican habits, where the duties are not entrusted either to popularity, or celebrity, or virtue; where foreign females and often enemies are admitted to a command from which the law excludes princesses of the national blood. Among the regents of this period have been placed very high, Blanche of Castile, very low, Isabella of Bavaria, perhaps with as little reason for one as the other.
It is not, then, the wars caused by the elections which must be regarded as establishing the disadvantage of elective royalty, compared to hereditary royalty, since the succession wars have in general lasted still longer, and minorities are more to be feared for nations than interregnums. The example which we have chosen, is not the most favourable to the elective system. We shall scarcely find thirteen years of wars caused by the elections, in all the history of Poland, and ten years in all that of Hungary, though in neither of these countries did the constitution seem suited to avoid these disturbances. As to Germany, when the imperial election was entrusted to seven powerful princes, it seemed from the armies which each of them always kept ready, as if they wished beforehand to organize civil war. It might be expected that in modem times, since rights have been better defined, and genealogies better known, successions to the crown would be more rarely contested; it is not so; questions of succession have arisen on all sides, many perhaps arc still dormant, waiting for future wars; for it is the essence of the law of royal succession to be unchangeable and imprescriptible; therefore, whenever it has been misunderstood or altered by legislative authority, or violated by adoptions, legitimation, testamentary dispositions, and renunciations, all those who have been despoiled think they preserve to the end of time the right to reclaim it. In fact, the doubtful cases, which mnst be governed by the law of royalty, only present themselves at long intervals of time; the reigning prince is then always interested in changing the law, and getting this change sanctioned by popular consent. If his right to do so were acknowledged, the law would only last till it had nothing to regulata France would no longer know the Salic law, if kings, united with states-general, had been able to change it, as they attempted to do in 1420, in order to expel Charles the Seventh, and in 1588, to exclude Henry the Fourth. Females were not less expressly excluded from the succession in Hungary, Bohemia, and Austria; and the succession of the house of Lorraine to that of Hapsburgh remains an usurpation in the eyes of the partisans of legitimacy, notwithstanding the cry of the diet of Hungary, Moriamur pro regenostro Maria Theresa In Spain, Philip the Fifth had no more the right to introduce the Salic law, than any of his successors had to abolish it. Isabella the Second reigns in virtue of the ancient law of the country, which Don Carlos wished to annihilate. In Portugal the fundamental law excludes all foreigners. Don Mignel made a strange application of it to the sovereign of a detached portion of the empire; but this sophism sufficed to produce a eivi] war. Even in France, the Duchess d'Angoulême ought to have succeeded to the crown of Navarre, where females are admitted; and this crown would have been detached from that of France, as it was in a similar case in 1328, to pass to the daughter of Louis the Tenth. In Piedmont, at the accession of the present king, Sardinia and Montferrat, which are feminine fiefs, ought to have gone to the daughter of his predecessor, and to have been detached from Savoy and Piedmont, which are masculine fiefs. The duchy of Modena, a masculine fief, should have gone to an agnate of the house Guelfo-Estense, either to the Duke of Brunswick, or to the King of England, rather than to the actual sovereign, who has succeeded in the name of a female. There would be no end of enumerating all the quarrels about succession, which might in our time cause an appeal to arms. A mode of election which would exclude foreign intrigues and domestic factions, would probably not be more difficult to invent for elective royalty than for the presidentships of the different states of America.
At all evenm, we must confess that it is only a rude kind of constitution which entrusts so much power to the head of a gocerement, and identifies his interests so little with those of the state. The name of king excites, and will always excite, the desire for royalty in the elected chiefs. They will take the measure of their prerogatives from those of the most powerful and most absolute monarchies; they will always look upon every limit to the accomplishment of their will as an injustice, and they will be in a state of habitual conspiracy against the constitution of the kingdom, in order to make a dignity here ditary which has only been entrusted to them for their lives. They will even have for the subversion of the laws, an advantage which hereditary monarchs have not; that is to say, greater activity, a greater personal reputation, and a more immediate participation in affairs.
In hereditary monarchies, with an infinitely small number of exceptions, the king is only a great national elector, who names his mluisters and his council, and who afterwards lays on them the whole burden of administration. In constitutional monarchies, this limitation of the personal activity of the king not only exists, but is of right; it is established by the law. It is understood that even the speeches of the king are composed by his mluisters; that all acts done in the name of the king are suggested by these same ministers, who make themselves responsible for them: and that in England they obstinately resist the least suggestion, the least recommendation, that comes from the person of the king. In absolute monarchies, the kings do not any more reign themselves. All the power of the state is always in the hands of a council, of a cabinet, which renews itself by intrigues little known, divides all the functions, and commands him whom it appears to obey. All the sovereignty is always lodged in a strict oligarchy, only these oligarchies are not appointed either for their birth, or for their wealth, or for their celebrity, but by the intrigues of courtiers, if not even by corruption and vice. Some absolute monarchs neglect the business of the state for their pleasures; others regularly meet the councils, but are too timid to endeavour to make their opinion prevail over that of men whom they think better informed; others, in short, fancy they govern because they give many orders, which their favourites, their mistresses, or their confessors, have secretly suggested. The power belongs sometimes to public counsellors, sometimes to hidden ones; but except Frederick the Great, and perhaps the czar Peter, there is scarcely to be found one example of-an hereditary sovereign, who was himself the soul of his government.
It is quite otherwise in elective monarchies, or under the founders of hereditary monarchies, who are themselves only elective kings. They must have given proof of aptitude in business, of activity of talent, of bravery, to arrive at the rank which they occupy. It is the man himself that has been chosen, not the family; it is the man who is formed to be the general, the administrator, the president of diets, the orator of the government. We have seen what Napoleon was in France; no mode of election, it is true, would easily find his equal. Without doubt, the greater part of the kings of Poland, most of the emperors of Germany, scarcely resembled him; but they had this relation to him, like him they were the soul of the government; their ministers were only their secretaries, and it was the kings alone who gave the impulse instead of receiving it. Those who prefer monarchical government, because they like better to obey a man than a council, or according to a popolar expression, they would rather have one king than a hundred, ought to be satisfied only with an elective monarchy, for it is there alone that the individual reigns.
But how much more power will a king, who has himself exercised all the functions with which the law entrusts him, have to overthrow the constitution, than a king of England! He has not only chosen his ministers, he has appointed also, from his own personal knowledge, all the different agents of power, even to those nearest the people; it has always been his piercing eye which has distinguished merit, which has advanced it, but at the same time has enchained it to himself. He has prepared in his cabinet the laws submitted to the legislature; he conceives of them as a whole, and be sees at one glance all the measures which will only he presented in a detached form, to those who are to decide on them. He knows his own projects, and he compares the future, of which he is the sole master, with the present, beyond which his oounsellors see nothing. The army is his, for he has commanded it in war, saved it in danger, made it illustrious by victory; still more, because he has formed it, by appointing all its officers, not by the often degrading favour of courts; not after the immoveabte rules of age, which often place the most incapable in the first ranks, but from that merit which he has himself distinguished on the field of battle. Among the best citizens there are a great number who would rather trust to him than to national councils. Nor are these councils exempt from deceptive passions; representing the national mind, they can scarcely raise themselves above mediocrity, whilst genius is found in the great man whom the nation has chosen. Whenever his projects have been brought into opposition with common men, experience has taught them that his coup d'œil was more prompt and more just; his views more profound, and that he acted as if he already foresaw that future which others only recognise when long years are passed. But how great is their error, if this confidence given to genius leads them to second the projects of the chosen of the people, against the constitution of his country. It is because they look upon him as the only man, that they obey him, and the result of their obedience will be, that his like will never again be at the head of the state. It is because they love heroes, that they give up the power of choosing them, and condemn themselves to have only children of a great man, and children whom a proverb has declared degenerate and incapable of go. verning.
In fact, it is the singular consequence of elective monarchy, that the better have been its results, the nearer it has been to its ruin. Whenever a great man has been raised to the throne of the Empire, of Poland, of Hungary, he has taken advantage of a brilliant reign, of the lustre with which he has encompassed the nation, of the prosperity which he has been the cause of its enjoying, to change the constitution, to fix the crown in his own family, to leave the inheritance of a hero to an unworthy son. When, on the contrary, his talent was less brilliant, his popularity less seductive, the elective monarch has always taken advantage of his power to enrich and aggrandize his family at the expense of the crown, thus to change in a different way the constitution of the state. In the empire, monarchs have given to their sons the great fiefs which fall to the crown. Rodolph of Hapsburg disposed thus of Austria; Henry the Seventh, of Bohemia: in Hungary, the palatinates, in Poland, the starosties, which ought to have supported the lustre of the crown, were usurped by the children of the kings. The celibacy of ecclesiastical sovereigns has not secured their elective monarchies from this abuse; and the nepotism of Rome seems to be an evll inherent in this form of government.
Must we then renounce the signal advantages which seem attached to the concentration of executive power in the hands of one person; the vigour, the compactness, the instinctive knowledge of men, the presence of the head of the government under its banners? Must the country be deprived of those gigantic developments which genius obtains for her, when it is at the head of the state? We propose to examine in another article, the first of those expedients to which recourse has been had to reconcile the power of the favourite of the nation with the institutions and rights, whose duration it is the great object to preserve: it is temporary monarchy, or presidentship. We shall afterwards examine the expediency of the opposite system, that of fixed power, made so much the more uniform, as all extraordinary men are excluded from it: it is hereditary monarchy in all its different modifications.