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FrRevol_201-250.indd 11 3/16/12 1:05 PM CHAPTER VIII Ofthe Errors ofthe National Assembly in Regard to the Constitution. In the code of liberty we have the means of distinguishing that which is founded on invariable principles from that which belongs to particular circumstances. Imprescriptible rights consist in-equality under the law, individual liberty, the liberty of the press, freedom of religion, the right of admission to public employments, and the grant of taxes by the representatives of the people. But the form of government, whether aristocratic or democratic, monarchical or republican, is but an organization of powers; and powers are themselves nothing but the guarantees ofliberty. It does not enter into the natural rights of man that every government should consist of a house of peers, a house of elected deputies, and of a king, whose sanction forms a part of the legislative power. But human wisdom has not even to our days discovered any form of government which in a great country gives more security to the blessings of social order. In the only revolution within our knowledge which was directed to the establishment of a representative government, the order of succession to the throne was changed, because the English nation were persuaded that James II would not sincerely give up his claims to absolute power in order to exchange it with a legal power. The Constituent Assembly did not go the length of deposing so virtuous a sovereign as Louis XVI, and yet it aimed at establishing a free constitution; the result of this was its considering the executive power as inimical to liberty, instead ofrendering it one ofits safeguards. It formed a constitution as a general would form a plan ofattack.1 All the mischiefproceeded from this fault; for whether the King I. In its original form, the principle of the separation ofpowers (Article 16 of the Dec2ll FrRevol_201-250.indd 12 3/16/12 1:05 PM PART II was or was not resigned in his heart to the restraints required by the interest of the nation, they ought not to have examined his secret thoughts, but have established the royal power, independently of what might be feared or hoped from its actual possessor. Institutions, in the course of time, adapt men to themselves with more facility than men can rid themselves of institutions. To preserve the King, and to strip the office of its necessary prerogatives, was the most absurd and most reprehensible plan of all.2 Mounier, a declared friend ofthe English constitution, did not hesitate to make himselfunpopular by professing that opinion: he declared, however , in the Assembly that the fundamental laws of the constitution did not stand in need of the royal sanction, on the broad principle that the constitution was prior to the throne, and that the king existed only by means of it.3 There must be a compact between king and people, and to deny the existence of such contract would be equally contrary to liberty as to monarchy. But as a kind of fiction is necessary to royalty, the Assembly did wrong in calling the king a public functionary: he is one of the independent powers of the state, participating in the sanction of the fundamental laws, as well as in those of daily enactment. Were he only a simple citizen, he could not be king. There is in a nation a certain stock offeeling, which should be managed like so much physical power. A republic has its enthusiasm, which Montesquieu calls its principle; a monarchy has also its principle; and even despotism, when, as in Asia, it is a part ofthe religious creed, is maintained by certain virtues; but a constitution of which one of the elements is the laration ofthe Rights ofMan) had a strong antimonarchical character insofar as it sought to transform the king into a simple magistrate- the head ofthe executive-entirelydependent on legislative power. At the same time, the skeptical attitude toward the executive power was accompanied by the extreme confidence in the virtues of legislative power. 2. In Du pouvoir executifdans les grands itats (1792), Necker reevaluated the role of executive power and the balance of powers in modern society. Following in the footsteps of her father, Madame de Stael argued that in spite of the controversy surrounding the division of powers the most difficult problem was not their separation but their proper umon. 3ยท Sieyes, otherwise a critic of Mounier, also defended the theory of the superiority...


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