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POWER AND PUBLIC OPINION.
power, may, in any shape, be expected frequently to occur. Experience evinces that the happiest dispositions are not proof against the allurements of power, which has no charms but as it leads on to new advances ; authority endures not the very idea of restraint; nor does it cease to struggle till it has beaten down every boundary.
Openly to level every barrier, and at once to assume the absolute master, as we said before, would be a fruitless attempt. But it is here to be remembered, that those powers of the people which are reserved as a check upon the sovereign, can only be effectual so far as they are brought into action by private individuals. Sometimes a citizen, by the force and perseverance of his complaints, opens the eyes of the nation; at other times, some member of the legislature proposes a law for the removal of some public abuse: these, therefore, will be the persons against whom the prince will direct all his efforts.*
And he will the more assuredly do so, as, from the error so usual among men in power, he will think that the opposi. tion he meets with, however general, wholly depends on the activity of one or two leaders; and amidst the calculations he will make, both of the supposed smallness of the obstacle wbich offers to his view, and of the decisive consequence of the single blow he thinks necessary to strike, he will be urged on by the despair of ambition on the point of being baffled, and by the most violent of all hatreds, that which is preceded by contempt.
In that case which I am still considering, of a really free nation, the sovereign must be very careful that military violence do not make the smallest part of his plan: a breach of the social compact like this, added to the horror of the expedient, would infallibly endanger his whole authority. But, on the other hand, if he be resolved to succeed, he will, in defect of other resources, try the utmost extent of the legal powers which the constitution has intrusted him with; and if the laws have not in a manner provided for every possible case, he will avail himself of the imperfect precautions them
* By the word prince, I mean those who, under whatever appellation, and in whatever government it may be, are at the head of public affairs.
selves that have been taken, as a cover to his tyrannical proceedings; he will pursue steadily his particular object, while his professions breathe nothing but the general welfare, and destroy the assertors of the laws, under the very shelter of the forms contrived for their security.*
This is not all ; independently of the immediate mischief he may do, if the legislature interpose not in time, the blows will reach the constitution itself; and, the consternation becoming general among the people, each individual will find himself enslaved, in a state which yet may exhibit all the common appearances of liberty.
Not only, therefore, the safety of the individual, but that of the nation itself, requires the utmost precautions in the establishment of that necessary but formidable prerogative of dispensing punishments. The first to be taken, even without which it is impossible to avoid the dangers above suggested, is, that it never be left at the disposal, nor, if it be possible, exposed to the influence, of the man who is the depository of the public power.
The next indispensable precaution is, that this power shall not be vested in the legislative body; and this precaution, so necessary alike under every mode of government, becomes doubly so, when only a small part of the nation has a share in the legislative power.
If the judicial authority were lodged in the legislative part of the people, not only the great inconvenience must ensue of its thus becoming independent, but also that worst of evils, the supposition of the sole circumstance that can well identify this part of the nation with the whole, which is, a common subjection to the rules which they themselves prescribe. The legislative body, which could not, without ruin to itself, establish, openly and by direct laws, distinctions in favour of its members, would introduce them by its judgments : and the people, in electing representatives, would give themselves masters.
* If any person should charge me with calumniating human nature (for it is her alone I am accusing here), I would desire him to cast his eyes on the history of Louis XI.-of a Richelieu, and, above all, on that of England before the Revolution : he would see the arts and activity of government increase in proportion as it gradually lost its means of oppression.
THE JUDICIAL AUTHORITY.
The judicial power ought therefore absolutely to reside in a subordinate and dependent body,—dependent, not in its particular acts, with regard to which it ought to be a sanctuary, but in its rules and in its forms, which the legislative authority must prescribe. How is this body to be composed ? In this respect farther precautions must be taken.
In a state where the prince is absolute master, numerous bodies of judges are most convenient, inasmuch as they restrain, in a considerable degree, that respect of persons which is one inevitable attendant on that mode of government. Besides, those bodies, whatever their outward privileges may be, being at bottom in a state of great weakness, have no other means of acquiring the respect of the people than their integrity, and their constancy in observing certain rules and forms : nay, these circumstances, united, in some degree over-awe the sovereign himself, and discourage the thoughts he might entertain of making them the tools of his caprice.*
But in a strictly limited monarchy, that is, where the prince is understood to be, and in fact is, subject to the laws, numerous bodies of judicature would be repugnant to the spirit of the constitution, which requires that all powers in the state should be as much confined as the end of their institution can allow; not to add, that, in the vicissitudes
* The above observations are in a great measure meant to allude to the French parlemens, and particularly that of Paris, which formed such a considerable body as to be once summoned as a fourth order to the general estates of the kingdom. The weight of that body, increased by the circumstance of the members holding their places for life, was in general attended with the advantage of placing them above being overawed by private individuals in the administration either of civil or criminal justice; it even rendered them so difficult to be managed by the court, that the ministers were at times obliged to appoint particular judges, or commissaries, to try such men as they resolved to ruin.
These, however, were only local advantages, connected with the nature of the French government, which was an uncontrolled monarchy, with considerable remains of aristocracy. But, in a free state, such a powerful body of men, invested with the power of deciding on the life, honour, and property of the citizens, would be productive of very dangerous political consequences ; and the more so, if such juages had, as is the case all over the world except here, the power of deciding upon the matter of law and matter of fact.
incident to such a state, they might exert a very dangerous influence.
Besides, that awe which is naturally inspired by such bodies, and is so useful when it is necessary to strengthen the feebleness of the laws, would not only be superfluous in a state where the whole power of the nation is on their side, but would moreover have the mischievous tendency to introduce another sort of fear than that which men must be taught to entertain. Those mighty tribunals, I am willing to suppose, would preserve, in all situations of affairs, that integrity which distinguishes them in states of a different constitution; they would never inquire after the influence, still less the political sentiments, of those whose fate they were called to decide ; but these advantages not being founded in the necessity of things, and the power of such judges seeming to exempt them from being so very virtuous, men would be in danger of taking up the fatal opinion, that the simple exact observance of the laws is not the only task of prudence: the citizen called upon to defend, in the sphere where fortune has placed him, his own rights, and those of the nation itself, would dread the consequence of even a lawful conduct, and, though encouraged by the law, might desert himself when he came to behold its ministers.
In the assembly of those who sit as his judges, the citizen might possibly descry no enemies : but neither would he see any man whom a similarity of circumstances might engage to take a concern in his fate : and their rank, especially when joined with their numbers, would appear to him to lift them above that which overawes injustice, where the law has been unable to secure any other check, -I mean the reproaches of the public.
And these his fears would be considerably heightened, if, by the admission of the jurisprudence received among certain nations, he beheld those tribunals, already so formidable, wrap themselves up in mystery, and be made, as it were, inaccessible. *
* An allusion is made here to the secrecy with which the proceedings, in the administration of criminal justice, are to be carried on, according to the rules of the civil law, which in that respect are adopted over all Europe. As soon as the prisoner is committed, he is debarred of the sight of every body, till he has gone through his several examinations,
THE SECURITY OF INDIVIDUALS.
He could not think, without dismay, of those vast prisons within which he is one day perhaps to be immured—of those proceedings, unknown to him, through which he is to passof that total seclusion from the society of other men - or of those long and secret examinations, in which, abandoned wholly to himself, he will have nothing but a passive defence to oppose to the artfully varied questions of men, whose intentions he shall at least mistrust; and in which his spirits, broke down by solitude, shall receive no support, either from the counsels of his friends, or the looks of those who may offer up vows for his deliverance.
The security of the individual, and the consciousness of that security, being then equally essential to the enjoyment of liberty, and necessary for the preservation of it, these two
One or two judges are appointed to examine him, with a clerk to take his answers in writing: and be stands alone before them in some private room in the prison. The witnesses are to be examined apart, and he is not admitted to see them till their evidence is closed: they are then confronted together before all the judges, to the end that the witnesses may see if the prisoner is really the man they meant in giving their respective evidences, and that the prisoner may object to such of them as he shall think proper. This done, the depositions of those witnesses who are adjudged upon trial to be exceptionable, are set aside: the depositions of the others are to be laid before the judges, as well as the answers of the prisoner, who has been previously called upon to confirm or deny them in their presence; and a copy of the whole is delivered to him, that he may, with the assistance of a counsel, which is now granted him, prepare for his justification. The judges are, as has been said before, to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arise during the course of the proceedings ; such as admitting witnesses to be heard in behalf of the prisoner, &c.
This mode of criminal judicature may be useful as to the bare discovery of truth,-a point which I do not propose to discuss here; but, at the same time, a prisoner is so completely delivered up into the hands of the judges, who even can detain him almost at pleasure by multiply. ing or delaying his examinations, that, whenever it is adopted, men are almost as much afraid of being accused, as of being guilty, and especially grow very cautious how they interfere in public matters. We shall see presently how the trial by jury, peculiar to the English nation, is admirably adapted to the nature of a free state.
[All that De Lolme states in this note, and much more that is tyrannical, unjust, and cruel, is now practised in several European states, especially in Austria, the two Sicilies, and all the Italian States except Piedmont and Sardinia.--Ed.]