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. 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 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.

26. The supremacy of the law requires that where enacted constitutions form the fundamental law there be some authority 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 judges—courts 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 having unlawfully aggrieved him in the particular case. The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws. The court does not decide directly upon the doings of the legislature. It simply decides, for the case in hand, whether there actually are conflicting laws, and, if so, which is the higher law that demands obedience when both may not be obeyed at the same time. As, however, this decision becomes the leading decision for all future cases of the same import, until, indeed, proper and legitimate authority shall reverse it, the question of constitutionality is virtually decided, and it is decided in a natural, easy, legitimate, and safe manner, according to the principle of the supremacy of the law and the independence of justice. It is one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen. It may well be called a very jewel of Anglican liberty, one of the best fruits of our political civilization.

27. Of all the guarantees of liberty there is none more important, and none which in its ample and manifold development is more peculiarly Anglican, than the representative government. Every one who possesses a slight acquaintance with history knows that a government by assembled estates was common to all nations arising out of the conquests of the Teutonic race; but the members of the estates were deputies or attorneys sent with specific powers of attorney to remedy specific grievances. They became nowhere, out of England and her colonies, general representatives—that is, representatives for the state at large, and with the general power of legislation. This constitutes one of the most essential differences between the deputative medieval estates and the modern representative legislatures—a government prized by us as one of the highest political blessings, and sneered at by the enemies of liberty on the continent, at this moment, as “the unwieldy parliamentary government.” I have endeavored thoroughly to treat of this important difference; of the fact that the representative is not a substitute for something which would be better were it practicable, but has its own substantive value; of political instruction and mandates to the representative, and of the duties of the representative, in the Political Ethics, to which I must necessarily refer the reader.

With reference to the great subject of civil liberty, and as one of the main guarantees of freedom, the representative government has its value as an institution by which public opinion organically passes over into public will, that is law; as one of the chief bars against absolutism of the executive on the one, and of the masses on the other hand; as the only contrivance by which it is possible to induce at the'same time an essentially popular government and the supremacy of the law, or the union of liberty and order; as an invaluable high school to teach the handling and the protection and to instil the love of liberty; as the organism by which the average justice, on which all fair laws must be based, can be ascertained; as that sun which throws the rays of publicity on the whole government with a more penetrating light the more perfect it becomes; and as one of the most efficacious preventives of the growth of centralization and a bureaucratic government—as that institution without which no clear division of the functions of government can exist.

Before we consider the most prominent points of a representative government, so far as it is a guarantee of liberty, it may be proper to revert to two subjects just mentioned.

There was a time when, it seems, it was universally believed, and many persons believe still, that a representative government is indeed a very acceptable substitute, yet only a substitute, for a state of things which would be the perfect one, but which it is physically impossible to obtain at present, namely, the meeting of the people themselves, instead of an assembly of their representatives. A secondary value only is thus allowed to the representative system. This is a grave error. Even were it physically or locally possible to assemble the entire American people and rule by the Athenian pebble or by cheirotonia, (the show of hands,) we must still cling to the representative system as a substantive institution. The market government belongs to antiquity—the period of city-states—not to our period of national states; and national states have not only a meaning relating to physical extent of country.

It has been observed that the period of nationalization of tribes toward the close of the middle ages was one of the most important in the progress of civilization and modern political development, as a period of medieval disintegration and division would be the necessary effect of denationalization. Rome perished of a political bankruptcy, because the ancient city-state was incompatible with an extensive empire. A representative government could alone have saved it; for its recollections and forms of liberty prevented a full-blown centralization, the only other form which could have given it a Russian stability. Constantine, indeed, established a centralized court government; but it was then too late. The decree had gone forth that the vessel should part amidst the breakers.

The market democracy is irreconcilable with liberty as we love it. It is absolutism which exists wherever power, unmitigated, undivided, and unchecked, is in the hands of any one or any body of men. It is the opposite of liberty. The people, which means nothing more than an aggregate of men, require fundamental laws of restraint, as much as each component individual does. Unless we divide the power into two parts—into the electing power, which periodically appoints and recalls, and into the power of elected trustees appointed to legislate, and who, as trustees, are limited in their power—absolutism is unavoidable. Absolutism is the negation of protection; protection in its highest sense is an essential element of liberty. It is the trusteeship that gives so high a value to the representative government. When the Athenians, trying the unfortunate generals after the battle of Arginusse, were reminded that they acted in direct contradiction to the laws, they exclaimed that they were the people; they made the laws, why should they not have the privilege of disregarding them?

Every one feels his responsibility far more distinctly as trustee than otherwise. Let a man in an excited crowd be suddenly singled out and made a member of a committee to reflect and resolve for that crowd, and he will feel the difference in an instant. How easy it would be to receive the most lavish and most dangerous money grants from an undivided and absolute multitude!Is it necessary to remind the reader that liberty has been lost quite as often from false gratitude toward a personally popular man as from any other cause?Trustees, carefully looking around them, and conscious that they have to give an account of themselves, are not so easily swayed by ravishing gratitude. The trusteeship in the representative government is the only means yet discovered to temper the rashness of the democracy and to overcome the obstinacy of monarchs.

How necessary for modern liberty a national representative government is—a representative system comprehending the whole state, and throwing liberty over it broadcast—will appear at once, if we remember that local self-government exists in many Asiatic countries, where, however, there is no union of these many insulated self-governments, and no state self-government, and therefore no liberty. We shall also presently see that where there is only a national representative government without local self-government, there is no liberty as we understand it.

Nor must we forget two facts, which furnish us with an important lesson on this subject. Wherever estates or other bodies have existed, no matter how great their privileges were or how zealously they defended their liberties, civil liberty has not been firmly established; on the contrary, it has been lost in the course of time, unless the estates have become united into some national or state representative system. Where are the liberties of Aragon, and where is the freedom of the many Germanic polities?It was one of the greatest political blessings of England that favorable circumstances promoted an early national fusion of the estates into two houses. On the other hand, we find that those governments which can no longer resist the demand of liberty by the people, yet are bent on yielding as little as possible, always have tried as long as was feasible to grant provincial estates only. Some monarchs of this century have shown a real horror of national representation, and would rather have periled their crown than granted it; yet some of these monarchs have readily granted an urban self-government of considerable extent. Their ministers and servants have frequently gone so far as to extol local self-government and to proclaim the idea that liberty consists far more in the “administration” being left to the people, than in any general representative government. In doing so, they pointed to countries in which the latter, existing alone, had brought no real liberty. Asia, as was before stated, furnishes us with innumerable instances of local self-government, which are there neither a source nor a test of liberty. True liberty stands in need of both, and of a bona fide representative government largely and minutely carried out.