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It was necessary to render the crown hereditary, in order that it might not prove a perpetual cause of civil dissensions; thence resulted the necessity of render. ing the king's person unblameable and sacred, with. out which the throne could never have been sheltered from the attempts of the ambitious. Now what power
is there not already in the hands of a chief, who is rendered hereditary and inviolable? Shall his refusing to execute a law, which he deems contrary to those interests, of which his character of head of the executive power makes him guardian-shall such a refusal, I say, suffice to hurl him from his high prerogatives? That would be destroying with one hand what you had built up with the other; it would be coupling to a precaution of peace and security, the means most proper to raise continually the most dreadful tempests.
Let us pass from this consideration to the instruments of power, which ought to be in the hands of the supreme head of the nation. It is over five-andtwenty millions of men that he is appointed to command; it is over every point of an extent of thirty thousand square miles that his power must be, without intermission, ready to show itself for the purposes of protection or defence; and will any one pretend, that the chief, the lawful depositary of the means which such a power requires, may be obliged to execute laws to which he hath not given consent?
however, that I had driven the partisans of the veto suspensive to their last intrenchments.
I venture to promise that I will invincibly establish these three points against every objection which the partisans of the veto suspensive may raise against the royal sanction, when at the conclusion of the debate I shall have liberty to answer them. At present, I only ask them to reflect on the formi. dable power with which the king of a great empire is necessarily invested, and how dangerous it is to provoke him to turn it against the legislature, as must infallibly happen, if they determine upon any one moment whatever, when he sees no way of escaping the necessity of promulgating a law to which he hath not consented.
Vote of M, De Mirabeaule.
But, through what dreadful troubles, through what convulsive and sanguinary insurrections would they send us to combat the resistance of the royal power ? When the law is under the safeguard of publick opi. nion, its sway is truly imperious over the ruler whom you have armed with the whole publick force; but which is the moment when we may reckon upon this empire of publick opinion? Is it not when the head of the exceutive power hath himself given his consent to the law, and when that consent is known to all the citizens? Is it not then, and then alone, that publick opinion sets the law irrevocably above him, and compels him, under pain of becoming an object of general horrour, to perform what he hath promised ; for his consent, in quality of head of the executive power, is nothing else than a solemn engagement to execute that law on which he hath just conferred his sanction?
And let it not be said, that the generals of armies are depositaries of very important powers, and are, nevertheless, obliged to obey the orders of their superiours, be their opinion what it may with respect to the nature of those orders. The generals of armies are not hereditary chiefs; their persons are not inviolable; their authority ceases in the presence of him whose orders they perform ; and, if the comparison is to be pushed still further, we must necessarily admit that those are, for the most part, but very indifferent generals, who carry into execution dispositions which they have not approved. Such then are the dangers which you are going to risk. And for what object? Where is the real efficacy of the veto suspensive?
Is it not expedient, as in my system, that the constitution should take certain precautions against the royal veto? Should the king overturn those precautions, will he not easily set himself above the law ? Your plan, therefore, is useless, even in
your own theory; and I will prove it to be dangerous in mine.
The refusal of the royal sanction can be supposed only in two cases :
In that where the monarch should deem that the proposed law would prove injurious to the interests of the nation ; and in that where, deceived by his ministers, he should resist laws that were contrary to their private views.
Now, in both the one and the other of these suppositions, the king, or his ministers, being deprived of the capability of obstructing the law by the peaceful means of a legal veto, would they not have recourse to an illegal and violent resistance, according as they considered the law to be of more or less importance ? Can it be doubted that they would prepare their means long before hand? For it is always easy to form a notion of the degree of attachment which the legislature will entertain for its law. It might happen, then, that the legislature might find itself chained down, at the very moment marked by the constitution for rendering the royal veto ineffectual; whereas, if that veto remains always in force, illegal and violent resistance becoming useless to the prince, he can no longer employ it, without revolting, in sight of the whole nation, against the constitution; a circumstance which soon renders such resistance extremely dangerous for the king himself, and particularly for his ministers. Observe that this danger is no longer the same, when the prince hath only oppo. sed a law to which he hath not consented.
In this latter case, as violent and illegal resistance may always be supported by plausible pretexts, the revolt of the executive power against the constitution always finds partisans, particularly when it is the measure of the monarch. With what facility did not Sweden return into the arms of despotism, by desiring that her king, although hereditary, should be only the passive and blind instrument of the will of the senate!
Let us not, then, arm the king against the legislative power, by letting him perceive any moment whatsoever when his consent might be dispensed with, and when, consequently, he would be no more than a blind and forced executor. Let us be con
vinced, that the nation will find more safety and tranquillity in laws expressly consented to by its ruler, than in resolutions in which he had no share, and which were repugnant to that power wherewith, in every state of the case, he should be invested. Let us be convinced, that, from the moment we have placed the crown in a particular family, from the moment we have made it the patrimony of the eldest sons, it becomes imprudent to alarm them, by subjecting them to legislative power, the force of which remains in their hands, and where, nevertheless, their opinion might be contemned. This contempt at length attaches to the person; and the depositary of all the force of the French empire cannot be contemned, without the greatest danger.
By a consequence of these considerations, which are warranted by the human heart, and by experience, the king ought to have the power of acting upon the national assembly, by sending it back to a reelection. This kind of action is necessary, in order to leave the king a legal and peaceful method of carrying through, in his turn, those laws which he may deem beneficial to the nation, and which the national assembly might be inclined to obstruct: nothing would be less dangerous; for the king must be perfectly sure of the disposition of the nation, before, in order to pass a law, he hath recourse to an election of new member's : and when the nation and the king unite in desiring a law, the resistance of the legislature can be ascribed but to two causes; either the corruption of its members, and in that case their removal is a benefit; or a doubt with respect to the publick opinion; and then the best mode of coming to a knowledge of it is, unquestionably, an election of new members.
I sum up all, gentlemen, in one single word: annuality of the National Assembly; annuality of the army; annuality of the taxes; responsibility of the ministers; and the royal sanction, without any written restriction, but completely limited in fact, will be the palladium of national freedom, and the most valuable exercise of the liberty of the people.
OF THE HONOURABLE THOMAS ERSKINE,
ON THE TRIAL OF JOHN STOCKDALE, FOR A LIBEL ON THE
HOUSE OF COMMONS.
TRIED BEFORE THE RIGHT HO
NOURABLE LLOYD, LORD KENYON, CHIEF JUSTICE
OF ENGLAND, DECEMBER 9, 1789,
THIS speech, to which criticism has deservedly assigned a conspicuous rank among the great efforts of forensick eloquence, was delivered in a case whose history may be concisely related. .
While the trial of Warren Hastings was pending before the house of lords, a pamphlet written with uncommon energy in his vindication by Dr. Logan, a Scotch clergyman of various learning and vivid genius, appeared, in which he inveighed against the conduct of the house of commons, and pointedly reprobated the motives that instigated the managers to the impeachment.
The publisher of the pamphlet, Stockdale, a bookseller, was tried for a libel on the house of commons. His acquittal, which took place after a long and elaborate discussion, has always been considered as a splendid triumph of the liberty of the press, and a most striking illustration of the importance of the tria! by jury to personal security.