Cyclopædia of Political Science, Political Economy, and the Political History of the United States
CHECKS AND BALANCES. This term of modern political language finds a place only in the vocabulary of mixed governments, and even, more properly speaking, only of free governments. It is applied to the equilibrium which, for the proper conduct of public affairs and the liberty of the citizen, should be established between the different powers by means of the constitutional definition of their rights and the limitation of their functions.
—A distribution of powers is to be met with, to a greater or less degree, in all governments which are not based upon the autocratic principle. For if certain classes of the citizens are oppressed by discriminating laws and exposed to penalties not pronounced by judicial magistrates; if the peers, instead of being placed under the régime of law, can be attacked by administrative decrees; if the nation does not enjoy full liberty of representation, all powers are confused and the country is deprived of the most essential guarantees of its liberty.
—We must, therefore, regard the proper separation of powers as the first condition of liberty, and the just equilibrium of power as the only means of preventing liberty from degenerating into license and anarchy, or from being destroyed by despotism.
—There are in every state three classes of powers: the legislative power, the executive power, and the judicial power. The first two, the political powers, are those whose functions are the most difficult to separate; their relations are the most delicate, and their action, now independent and now of necessity concurrent, is variously regulated and limited according as the constitution tends to extend or confine the prerogatives of the executive, and according as in the formation of the legislative power the aristocratic or the democratic element predominates, or a just balance between the two obtains. The judicial power, charged with the application of the laws, the settlement of differences between individuals, and the punishment of offenses and crimes against persons or the state, ought to be made completely independent of the legislative power, which is easily done, and as independent as possible of the executive power, a result of more difficult attainment. At all events, the principle of the necessity of a separation between the judicial power and that of making and administering the laws, is generally accepted and generally respected, except where mere arbitrary power prevails; were this principle not recognized, all notion, all possibility, of a just balance between the powers confounded, or separated by fictitious lines of demarcation, would be virtually done away with. We need, therefore, consider here only the conditions necessary for the maintenance of an equilibrium between the legislative power and the executive power. These conditions can not be the same in a monarchy and in a republic; and representative government admits equally of both forms. Montesquieu thinks that England drew from the Germania of Tacitus the idea of the institutions to which she owes her stability, her wealth and her greatness.*43 Whatever may have been the origin and the successive transformations of mixed government, to England belongs the honor, an honor which can not be disputed her, of having been the first to establish representative government on its true foundations; all the countries of the world which desired to become free have imitated her more or less. But every country has been able and has been obliged to preserve or introduce in its own constitution differences which its customs or genius made advisable or necessary.
—Thus the United States organized themselves as a republic, and modern France has not been able, and never will be able, without danger, to abandon the great principles of 1789.
—It does not fall within the limits of our subject to examine and compare, still less to judge, the various forms of representative government. We shall not undertake to set forth and discuss the means of equilibrium best adapted to secure a just distribution of powers under each of these forms of government. We will suppose, then, a representative government existing in the form and under the conditions that most frequently occur, that is, an executive power in the hands of an hereditary sovereign, and two chambers (whatever be the method of their election or nomination) sharing the legislative power with the head of the state. Peace, war, treaties and international relations belong to the powers of the sovereign. The courts render their decrees in his name, and he sees to their execution: he has the appointment to military and civil offices, but he governs by the delegation of his powers to responsible ministers; he has no power to dispose by treaty of any part of the public territory or treasure, nor can he make war without having the necessary grants from the representatives of the country. If the policy pursued by the executive ceases to have the support of the chambers, if the representatives of the country manifest their distrust and refuse their concurrence, the sovereign appeals to the electoral body by dissolving the elective chamber, or he changes his ministers, who may be brought to trial, in cases and by forms regulated by law; he himself remains irresponsible and inviolable. The opponents of representative government attack it particularly by arguments of fact drawn from revolutions which overthrew thrones in vain protected by a vicarious responsibility which was not even invoked, and by an inviolability which was not respected. Ministerial responsibility having failed to save the monarchy, it has been attempted to infer, not only that it is a useless fiction, but that it is even dangerous, the sovereign being too dependent on the chambers when the latter have the power, so to speak, to dictate to him the choice of his advisers.
—An attempt has been made to go even further than the suppression of ministerial responsibility, and to conceive of the personal responsibility of the sovereign before the nation. Now though it is easy to comprehend the meaning of the responsibility of the elective head of a republic, the question becomes singularly complicated when we have to consider the hereditary sovereign of a monarchical state. When, how, in whose name, and by whom could this responsibility be invoked? Who would be the judges and where would be the sanction? There is something in this that fails to present any clear idea to the mind, something that never has been explained and probably never will be explained. Such a clause, whatever meaning we may choose to attach to it as a declaration of principles, is, therefore, destined wherever it occurs to remain, in reality, a dead letter. It is very fortunate that this is so, for can we conceive of the state of a country where the sovereign could be, we will not say brought to trial, but publicly discussed in person and conduct? We need not hesitate, therefore, to declare that, since the sovereign can not be responsible, it follows that when the ministry is not responsible, no responsibility exists anywhere.
—The first condition of a balance of powers in a representative government being to place the sovereign above all attack and outside of all discussion, it has been found that the best way to accomplish this object is to subject all intervention in the affairs of government on his part to the counter-seal of a minister whose responsibility covers him.
—Every act exceeding the powers of a ministerial department ought to be discussed and approved in a council of ministers, so as to unite the entire cabinet in strict community of interests. This is the very foundation of representative governments, and, this form of government once accepted, the principle of ministerial responsibility has never been called in question. Where this responsibility does not exist, the form of government, whatever its name and whatever our opinion of it, is not the true and free representative form. Such is not the case with the prerogatives of parliament, which have been more or less enlarged or restrained according to the age, the country and the customs. In treating of these prerogatives we shall only touch on the principal points: the right to vote taxes to regulate the expenditure, the right of discussion of the laws, the right of amendment, of initiative, and the right to interrogate the ministers. On each of these points we shall dwell only on that which is essential to the balance of powers.
—The right to vote taxes, granted to deliberative assemblies without the right to regulate and control expenses, is only an illusory guarantee. The only effective safeguard of this double right lies in the power of the representatives of the people to modify the propositions of the budget, and in making it the duty of the executive to conform to the specification of expenditures voted, and never to undertake a new expenditure without a special appropriation by the legislative power. In speaking of the right to introduce amendments in the laws and retrenchments in the budget, a distinguished statesman has said: "The discussion of laws without the power to alter them, is only a sterile agitation. To place before the chambers the alternative of absolute rejection or adoption, is to reduce them to extreme resolutions and to destroy the spirit of compromise, which ought to be the true spirit of free countries." (History of the Consulate and of the Empire, vol. xviii., p. 177.)
—The right of amendment, balanced by the reservation in the hands of the head of the state of the right of initiative, and of approval of laws, can not be denied the representatives of the people, (or submitted to a body composed, like a council of state, of functionaries appointable and removable by the executive power, of which power the body is, as a matter of fact, a mere delegation,) without seriously diminishing the part of the assemblies. Chambers deprived of the right of amendment are reduced to obstructing the course of the government by their resistance, or to following it with absolute docility; they are no longer, properly speaking, deliberative bodies, but advisory commissions.
—We must not, in spite of certain resemblances between the two, confound the right of amendment with the right of initiative, and employ against the former objections in reality applicable only to the latter. The initiative in all matters, even in matters of legislation, may be safely left to the executive power to which it belongs to act.*44
—When the majority seriously desires and resolutely demands changes in legislation, the power which possesses the initiative will not wish, nor indeed have the power, to resist long. A responsible ministry could not keep the support of a chamber to which it refused the presentation of a law decidedly required by the representatives of the country. The recollection of the embarrassments caused in legislative assemblies by the exercise of the right of initiative is still fresh in the memory of every one. When this right exists it is impossible not to grant by the rules regulating it, or at least to allow in practice, an important part to the minority. The result is that assemblies lose valuable time in examining in committee or discussing in public sessions, propositions which have not the least chance of being adopted, propositions whose object may be, whose result frequently is, a useless agitation of the public mind. But quite another thing is the right to interrogate the government or to communicate information to it on affairs and on passing events which will soon become accomplished events. In such cases the representatives of the country ought not to find in the regulations of the assembly insurmountable obstacles to the putting of their questions at the proper time to the depositaries of the executive power. The majority should be free to authorize the interrogation, the answer to which, usage, in conformity with reason, allows the ministers on their own responsibility to refuse or defer. On all the points which we have thus summarily passed in review the prerogatives of the two chambers are equal in all governments where the powers are well balanced; but the rule is almost general that the priority in voting on money grants and financial measures belongs to the chamber of deputies, or to that body, whatever its name, which is most directly and most frequently renewed by election.
—To make a law the concurrence of the two chambers and of the executive power is indispensable. Each of the chambers may reject laws presented to it. and the sovereign may refuse to approve laws which the chambers have amended. Thanks to these salutary precautions none of the three wills which must concur to change a proposed bill into a law of the state, is exposed to the danger of finding itself alone in opposition to another will. There are always two on the same side, and the third ordinarily in the end submits.
—When the constitution has established between the sovereign represented by his ministers and the chambers representing the country, relations admitting of a reciprocal action of one on the other, uniting them both in a community of moral interests and responsibilities, and obliging the sovereign, not to be dependent on the legislative power, but to associate with himself in the exercise of the executive power men to whom the chambers accord their confidence and support, it becomes inevitable that the necessary moderation can not be imposed upon all parties. Concessions are made on either side. Neither of the powers probably obtains, but neither is forced to give up all that it desires. The sovereign may sometimes be embarrassed in his projects, hampered even in the good which he would like to do; but by a just compensation he is protected against more than one mistake, more than one rash impulse. Do we mean to say by this that a country is thus secured forever against revolutions? No, for all things human have their end. It is not merely dynasties and governments that pass away, societies themselves perish and peoples disappear. Human wisdom can not make anything eternal, and should confine itself to seeking the conditions most favorable to stability. History can show us no government that fell for having made timely concessions, but more than one has been over-thrown for having resisted too long. The great advantage of representative government, honestly administered, is, that it allows public opinion to manifest itself and renders the concessions of the sovereign easy and in no wise harmful. It is, furthermore, the only government where the separation of powers can be legally and actually complete—the only one where, as proved by the example of England, the just distribution of powers, maintained quite as much if not more by political customs as by the fundamental law of the state, softens, regulates and protects the play of the institutions, and thus secures their durability.
Notes for this chapter
Esprit des lois, book xi. chap. vi.
End of Notes
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