preach upon them, but the situations have greater power than the words, and when the inequality is immense, the one easily forgets his duties, the others their rights.18" Change the terms, and nearly every word applies to absolute democracies with equal truth.

18 Guizot, Essais sur l'Histoire de France, p. 359.

...

General Rapp, first aid of Napoleon, gives a good picture of the false position of an absolute monarch, in his Memoirs, Paris, 1832, ch. 2. He says that "whenever Napoleon was angry, his confidants, far from appeasing him, increased his anger by their representations. Your majesty is right,' they would say: 'such a person has merited to be shot, or disgraced, or discarded. I have long known him to be your enemy. Examples are necessary; they are necessary for the maintenance of tranquillity.' When it was required to levy contributions from the enemies' country and Napoleon would perhaps ask for twenty thousand, he was advised to demand ten more. If it was the question to levy two hundred thousand men, he was persuaded to ask for three hundred thousand; in liquidating a debt which was indisputable, they would insinuate doubts on its legitimacy, and would often cause him to reduce to a half, or a third, and sometimes entirely the amount of the demand. If he spoke of making war, they would applaud the noble resolution: war alone would enrich France; it was necessary to astonish the world in a manner suitable to the power of the great nation. Thus it was that in provoking and encouraging expectations, and uncertain enterprises, he was precipitated into continual wars. Thus it is that they succeeded in giving to his reign a character of violence which did not belong to him. His disposition and habits were altogether good-natured. Never a man was more inclined to indulgence and more awake to the voice of humanity. I could cite thousands of examples."

Whether Napoleon was good-natured or not need not be discussed here, nor is it important to state that he was not so weak as represented by Rapp, but it is instructive to see how a man like Rapp, an uncompromising absolutist, unawares lays bare his own opinion of the character of an absolute monarch, because he is absolute.

Absolute monarchs, indeed, often allow free words. The philosopher Kant uttered remarkable political sentiments under Frederic the Great, and Montesquieu published his Spirit of Laws under the auspices of Madam de Tincin, the chanoiness mistress of the duke of Orleans, regent of France, and successively of many others. Montesquieu was favored by these persons, for very frequently people have a sentimental love for the theory of liberty. But neither Kant nor Montesquieu would have been suffered to utter their sentiments had there been any fear whatever that they might pass into reality. There is an immense difference between admiring liberty as a philosophical speculation, loving her like an imaginary beauty by sonnet and madrigal, and uniting with her in real wedlock for better and worse.

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 by regular action at law, or by impeachment; and that no positive order by the supreme executive, even though this be a king, as in England, be allowed as a plea for impunity. A long time elapsed before this principle came clearly to be established in England. Charles the First reproved the commons for proffering their loyalty to his own person, while they opposed his ministers and measures which he had personally ordered. England in this, as in almost all else that relates to constitutional liberty, had the start of the continent by two hundred years and The same complaints were heard on the continent of Europe when lately attempts were made to

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establish liberty in monarchies; and more will be heard when the time of new attempts shall have arrived. Responsible ministers, and a cabinet dependent upon a parliamentary majority, were the objects of peculiar distaste to the present emperor of the French, as they have been to all absolute monarchs. His own proclamations distinctly express it, and his newspapers continue to decry the servile position of government when ministers are in the service of a house of representatives.

In unfree countries, the principle prevails that complaints against the act of an officer, relating to his public duty, must be laid before his own superiors. An overcharge of duty on imported goods cannot there be tried before a common court, as is the case with us.

25. As a general rule, it may be said that the principle prevails in Anglican liberty, that the executive may do that which is positively allowed either by the fundamental or other law, and not all that which is not prohibited. The royal prerogatives of the English crown doubtless made the evolution of this principle difficult, and may occasionally make clear action upon it still so; but the modern development of liberty has unquestionably tended more and more distinctly to establish the principle that for everything the executive does there must be the warrant of the law. The principle is of high importance, and it need hardly to be added that it forms one of the prominent elements of American liberty. Our presidents, indeed, have done that for which many citizens believed they had no warrant in the 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 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

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:

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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:

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'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: