CHAPTER XV.

RESPONSIBLE MINISTERS.-COURTS DECLARING LAWS UNCONSTITUTIONAL.-REPRESENTATIVE GOVERNMENT.

24. It is not only necessary that every officer remain individually answerable for his acts, but it is equally important that no act be done for which some one is not responsible. This applies in particular, so far as liberty is to be protected, to that branch of government which directs the military. It is important, therefore, that no decree of government go forth without the name of a responsible person; and that the officers, or single acts of theirs, shall be tried, when trial becomes necessary, by regular action at law, or by impeachment; and that no positive order by the supreme executive, even though this be a king, as in England, be allowed as a plea for impunity. A long time elapsed before this principle came clearly to be established in England. Charles I. reproved the commons for proffering their loyalty to his own person, while they opposed his ministers, and measures which he had personally ordered. England in this, as in almost all else that relates to constitutional liberty, had the start of the continent by two hundred years and more.1 The

- [The importance of the power of impeachment for obeying a king's unlawful commands would have been practically destroyed in England, if either a pardon had been pleadable against impeachment, or the dissolution of a house of commons had put an end to proceedings in such sort that a new house must commence them de novo. The earl of Danby had been saved for the time by Charles II., by means of a dissolution of the impeaching parliament, and when a new parliament revived the proceedings, pleaded a pardon in bar of the prosecution of the case. (1679.) It was decided in the act of settlement of 13 Wm. III. that "no pardon under the great seal of England be pleadable to an impeachment of the commons in parliament." The question whether an impeachment could survive a dissolution was decided, during the impeachment of Warren Hastings, by very large majorities of both houses in the affirmative. (1791.)

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

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

25. As a general rule, it may be said that the principle

After sentence on trial by impeachment, the king can pardon; and, in fact, the house of lords, in 1715, when six peers, involved in the rebellion of that year, had been by this process convicted, begged the king to exercise this prerogative, which he did by pardoning three of the number. Hallam, ii. 555-570. Thus a king can save his minister from the results of a legal sentence by impeachment, but not until he stands convicted before the country, and suffers, it may be, a lifelong loss of reputation.]

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

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

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

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 needs hardly to be added that it forms one of the prominent elements of American liberty. Our presidents, indeed, have done that for which many citizens believed they had no warrant in law, for instance, when General Jackson removed the public deposits from the bank of the United States; but the doubt consisted in the question whether the law warranted the 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.2

I

[Such specific checks on legislative power are coming more and more into use. The people are beginning to distrust the legislatures, as they formerly did the executives.]

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:

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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:

26. The supremacy of the law requires that where enacted constitutions form the fundamental law there be some autho

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

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

"That the seizure in question was made in order to follow the trace of an offence; that it resulted in the discovery of useful and important facts; that, finally, the authors of the said letters have been prosecuted in a court of justice: "Considering, moreover, that the court is not called upon to inquire into the origin of documents submitted to this appreciation; that its mission is merely to establish their authenticity or their sincerity; that, in fact, the letters in question are not denied by their authors:

"For these reasons the letters are declared admissible as evidence," etc.

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

"Now, we have no wish to palliate the bad conduct of a class who at least furnish amusing topics to contemporaries. By all means let the evils be remedied; but let the remedy come within the limits of law. It will be an evil day for England when irresponsible legislation and police law, even for cabmen, are recognized and applauded by a certain public because in a given example it happens to be convenient to them. If the ordinary law is not sufficient, let it be reformed; but do not leave the making of penal laws to the police, and the execution of those laws to the correctional tribunal of the same authority."— Spectator, April 2, 1853.

I

They are generally called written constitutions; but it is evident that the essential distinction of constitutions, derived from their origin, is not whether they are written or unwritten, which is incidental, but whether they are enacted or cumulative. The English constitution—that is, the aggregate of those laws and rules which are considered of fundamental importance, and essential in giving to the state and its government those features which characterize them, or those laws and institutions which give to England her peculiar political organic being—consists in cumulated usages and branches of the common law, in decisions of fundamental importance, in self-grown and in enacted institutions, in compacts, and in statutes embodying principles of political magnitude. From these the Americans have

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

rity which can pronounce whether the legislature itself has or has not transgressed it in the passing of some law, or whether a specific law conflicts with the superior law, the constitution. If a separate body of men were established to pronounce upon the constitutionality of a law, nothing would be gained. It would be as much the creature of the constitution as the legislature, and might err as much as the latter. Quis custodiet custodes? Tribunes or ephori? They are as apt to transgress their powers as other mortals. But there exists a body of men in all well-organized polities, who, in the regular course of business assigned to them, must decide upon clashing interests, and do so exclusively by the force of reason, according to law, without the power of armies, the weight of patronage or imposing pomp, and who, moreover, do not decide upon principles in the abstract, but upon practical cases which involve them—the middle men between the pure philosophers and the pure men of government. These are the judgescourts of law.

When laws conflict in actual cases, they must decide which is the superior law and which must yield; and as we have seen that according to our principles every officer remains answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues the officer before the proper court as

extracted what has appeared important or applicable to our circumstances; we have added, expanded, and systematized, and then enacted this aggregate as a whole, calling it a constitution-enacted, not by the legislature, which is a creature of this very constitution, but by the people. Whether the constitution is written, printed, carved in stone, or remembered only, as laws were of old, is not the distinctive feature. It is the positive enactment of the whole at one time, and by distinct authority, which marks the difference between the origin of our constitutions and those of England or ancient Rome. Although the term written constitution does not express the distinctive principle, it was nevertheless natural that it should have been adopted, for it is analogous to the term lex scripta, by which the enacted or statute law is distinguished from the unenacted, grown, and cumulative common law. [The distinguishing feature of the English constitution is that the people have no direct voice in saying what it shall be; the parliament has theoretically an uncontrolled power of adding to or taking away from the fundamental laws.]