The constitution imposes no limitations upon the legislature in reference to the arraignment, trial and judgment of a minister. It directs, however, that these matters shall be regulated by law;1 i.e. by rules passed by both bodies for the direction of each body. In other words, the constitution orders the legislature to limit the powers of each house in the accomplishment of the part assigned to it. The question then arises whether, in the absence of any such law, these extraordinary prosecutions can be undertaken at all. English and American jurisprudence would be very likely to answer this question in the negative. Lebon, however, holds that the precedents of French constitutional and parliamentary history authorize each chamber, in the absence of a law, to act freely in that part of the procedure assigned to it by the constitution. He says the only limitation which, in the existing status of French law, rests upon the absolute freedom of each legislative chamber in regard to the prosecution, trial and sentence of the ministers, is in respect to the choice of the penalty to be inflicted. Since in most cases the crime would be political, political penalties only must be inflicted, such as deportation, imprisonment, exile, loss of citizenship.3 Where he finds this limitation is to me unintelligible.

It

is not contained in the constitution, unless it be found in the constitutional requirement that the whole matter shall be regulated by law. But this the learned commentator declares to be no antecedent necessity to the action of the two chambers. If the limitation be not in the constitution nor in a law, I do not see how it can bind the chambers. I think Lebon's principle necessarily leaves the Senate entirely free to select the penalty and to order its execution. This would certainly give the Senate a most despotic political jurisdiction over the ministers. Uneasy must be the hand which carries a portefeuille with such responsibility.

1 Loi constitutionnelle du 16 juillet, 1875, Art. 12, § 5.

2 Lebon, Das Staatsrecht der französischen Republik, S. 57.

3 Ibid.

If the act committed by the minister be a crime according to the code pénal, he is also subject to the ordinary criminal jurisdiction.

Lastly, the constitution empowers the President to preside upon great occasions of state.1

The French presidency is quite a unique creation of modern political science. It seeks to unite the elective tenure with the position and relations of a constitutional King. There is no contradiction in principle or practice. between the elective tenure and the exercise of executive powers of the strongest nature, executive powers equal to those exercised by a constitutional King; but there does seem to be incongruity between the elective tenure and the position of political impartiality and indifference required of the constitutional King. How can a man elected by a party and supported by a party look with impartiality and indifference upon the triumph of the opposite party, whose success may mean his own downfall? It is too much to expect that a legislature, whose members form the electoral body of the executive, will refrain from forcing a President out of office when a clear majority of the body is of a different party from that to which the President adheres, or adhered at the time of his election; and it is too much to expect that a President, knowing this, will be an impartial and an indifferent spectator of changes in the legislature which might bring about such a result. A far greater self-control than either French legislatures or French Presidents are thought to possess would be necessary to prevent this natural outcome. Elective government is naturally party government, and it is quite impossible to make anything else out of it. The warmest friend of what we call in the United States civil service reform does not dream of making the head of the administration and the highest class of the officials sub

1 Loi constitutionnelle du 25 février, 1875, Art. 3, § 5.

ject to its rules. The elective executive can never be the head of the state in the sense in which an hereditary King is its head, and no constitutional convention can make him so.

The practical working of this new institution will be watched with much interest. Should it really succeed, its success will furnish the best possible evidence that the French state has arrived at its maturity and is fully capable of intelligent and conservative self-government.

CHAPTER IX.

COMPARATIVE STUDY OF THE EXECUTIVE.

A COMPARISON of the four typical constitutions, upon the subject of the executive, gives for its first result the fact that the modern states of the world are apparently in less harmony upon this subject than upon that of the legislature. A closer comparison reveals the further fact that the disharmony lies more in the tenure of the executive and his relation to the legislature than in his powers.

I. Two of these systems present hereditary executives and two of them elective executives. In the first pair, the law of descent is not the same; and in the second, the electoral bodies and the electoral procedure differ widely. Two of these systems present executives personally irresponsible. One of them presents an executive personally irresponsible, except in case of high treason; and one of them an executive personally responsible to the legislature for criminal acts in general. Two of them present executives politically responsible to the legislature through ministries; and two of them executives irresponsible politically to the legislature. And of the first pair, the political responsibility of the ministry in one, is only collective; while in the other, it is both collective and individual. These are essential differences; and we shall do well to linger a little upon the conditions producing and sustaining them.

1. It is generally taught that the change from the hereditary to the elective tenure is the product of the revolutions of the eighteenth century. Of the four systems we are considering, the two which present the elective tenure are the

two whose constitutions rest without doubt upon revolutionary bases. But I think I have shown that the constitutions of the other two, the two still retaining the hereditary tenure, rest also upon revolutionary bases. While, therefore, it may be granted that the elective principle, as to the executive tenure, has been introduced by the revolutions which have established the democratic state, it does not appear that such a result is inevitable; and if, after the lapse of a sufficient period for the realization of the spirit of these revolutions, no such result has attached, we have here some evidence, at least, that it need not. Looking at the subject from a purely scientific standpoint, it seems to me that a democratic state may, without violence to its own principle, construct for itself a government in which the executive power will hold by hereditary right. If the democratic state will only preserve its own organization separate from and supreme over its government, it may consistently use any form of government which it may deem adapted to the exigencies of the age.

The hereditary tenure, however, is certainly not the most natural tenure for the executive of a democratic state. It implies the existence of unusual conditions and the observance of difficult requirements. It implies the existence of a royal house whose foundation reaches far back of the revolution which changed the state from its monarchic, or aristocratic, to its democratic form. It implies that that house has accommodated itself to the spirit of the revolution, has, in fact, placed itself at the head of the revolution and brought it to its consummation; has retained its hold upon the people; has kept and still keeps attached to itself the most capable personalities of the state, the natural leaders of the people; is content to surrender sovereignty and retain a limited governmental power only, and, in the exercise of this power, follows always a liberal and popular policy. This is a strait and narrow way for an hereditary ruler to walk in;