All the forms of doctrine devised for the support of the monarchic principle were animated by a purpose to assail at one point or another the dogma of the separation of powers. This dogma was the stronghold of popular sovereignty. Not by logical necessity, but by revolutionary history and tradition, Montesquieu's famous classification and distribution of the functions of government had become the distinctive attribute of liberal constitutionalism. A king thus was held to be, like the legislative chambers and the courts, one of the three agencies for carrying into effect the will of the sovereign people. Against this idea the lawyers invoked, as we have just seen, both the testimony of history and the wording of the constitutions themselves. Speculative philosophy also came to the front in the same cause, with criticism that played havoc with the very foundations of the whole doctrine. It was declared to be incomplete and otherwise defective in its analysis of the functions of government and confused in its distribution of functions among the various organs. The upshot of all the criticism, however, tended to be the demonstration that the chief practical weakness of the doctrine was the failure to make perfectly clear the necessity of the monarchic element. An ingenious effort to reformulate the familiar theory and make it serviceable alike for liberals and for monarchists was the leading feature of a philosophy that had some vogue in France at the time of the Bourbon restoration.

3. Benjamin Constant: His Theory of the Royal Power Benjamin Constant, 1767-1830, was one of the most influential writers of the French liberal school in the last two decades of his life. The basis of his doctrines was the sovereignty of the people. This he developed, however, rather in the general spirit of Montesquieu than in the spirit of Rousseau. He contraverted forcefully the dogma of an absolute sovereignty anywhere. Neither in any individual nor in any class nor in society as a whole could he find a right to the unqualified exercise of its will. Like Locke and Montesquieu, Constant would recognize no authority on earth as without limits"neither that of the people nor that of the men who claim to

be its representatives nor that of kings, by whatever title they reign, nor that of law. . .

Constant's sympathy with the spirit of the English system led him to the formulation of a somewhat novel and striking doctrine as to the royal power. His idea was obviously derived from the working of the British constitution in his own day as distinguished from the operation of it which had been responsible for Montesquieu's view. According to Constant, the three powers enumerated by Montesquieu and recognized in most written constitutions were not exhaustive of the functions of normal government. From the experience of France, in particular, he concluded that even for republican government the old analysis was inadequate, while for constitutional monarchy there were discernible five species of power, each of which should be properly vested in a special organ. The five that he enumerates are these: the royal power, the executive power, the power that represents permanence, the power that represents opinion, and the judicial power. Of these, the executive power belongs to the ministers, the judicial power to the courts, the power representing permanence to a hereditary assembly, and the power representing opinion to an elective assembly. Above them all stands the royal power, whose characteristic function it is to regulate and harmonize the movements of the four, to the end that cooperation rather than reciprocal obstruction may prevail among them.

It had been a common and a troublesome criticism of Montesquieu's doctrine that in operation it tended inevitably either on the one hand to deadlock or on the other hand to the clear predominance of one of the powers over the others. Constant's doctrine aimed to meet both these tendencies by ascribing to the royal power the single function of maintaining each of the others in its proper place and thus preserving the governmental machine in equilibrium."

Constant is interesting and ingenious in illustrating from history the serious consequences that resulted from a failure to

1 Constant, Politique Constitutionelle, vol. i, p 13.

Constant, op. cit., vol. i, chap. ii.

develop the balancing influence. The constitutional monarchy as found actually in the England of his day seems to him to solve the great problem for which before no solution was attainable. The English king embodies a neutral and intermediary power which is distinct from the executive power. This distinction between the royal and the executive, that is, between the king and the ministry, is the most conspicuous feature of Constant's doctrine. While the old defenders of monarchy saw in this distinction merely a purpose of reducing the monarch to a nullity, Constant made it the means of elevating the monarch to a position of the most serious significance in the government. The trend of his argument was to put the control of the ministry wholly in the king. The greatly mooted point as to whether the monarch should be obliged to dismiss ministers that were not acceptable to the representative body was left more or less in the background. Constant pointed out with special zeal the importance of an unfettered discretion in the monarch with respect to his ministers.

The executive power [that is, the ministry] is deposed without being prosecuted. The king has no occasion to convict his ministry of a crime or of any guilty undertaking in order to dismiss them. He dismisses them without punishing them. Thus all that is necessary happens without anything that is unjust, and, as always results, this means because it is just and also useful from another point of view. It is a great vice in any constitution to leave to powerful men only the alternative of keeping their power or going to the scaffold.'

The effort of Constant to find the logical justification for the monarch by regarding him as an organ of government rather than the sovereign of the state was quite characteristic of the desires of thinking men in these days of transition from monarchic to popular sovereignty. His spirit was the spirit that dominated both France and England in the days of the July monarchy. It fell short, however, of successful opposition to the growing force of democratizing sentiment. The hereditary principle was always a stumbling-block to those who sought to

1 Constant, op. cit., vol. i, p. 23.

give to the monarch a serious function in government, while at the other extreme the demand for universal suffrage was the element of weakness in the cause of undiluted popular gov

ernment.

4. Guizot, the Doctrinaire

This admirable representative of French culture in the first half of the nineteenth century was more distinguished in historical than in political science and in the practical than the theoretical aspects of government. During the decade of the twenties his lectures at Paris on the origin of representative institutions in Europe gave him a prominent place in the rising group of national historians. Devoted with all his soul to the July monarchy, he became the mainstay of Louis Philippe's government and as prime minister bore the responsibility for its downfall in 1848. Exile in England brought about a renewal of his researches in history, enriched by the teachings of a highly instructive career in statesmanship. His lectures on the origin of representative government were, after careful revision, given to the public. These, with his famous course on the general history of civilization in Europe, fixed his reputation for scholarship and literary power. At several points' in his historical narrative he digressed into a philosophical vein and it is from these digressions, colored as they are by the teachings of his dramatic public career, that we are able to derive the fundamentals of his doctrine as to representative government.

Like Benjamin Constant, Guizot rejected the concept of sovereignty as an element in rational political theory. To him the term meant, if it meant anything, an absolute right of making law for a social group of human beings—an absolute dominion of a human will over other human wills. Such dominion was to him merely the essence of tyranny, against which history showed that society in all its grades and forms had always protested. This universal protest sufficed to satisfy him that the

These are to be found chiefly in Representative Government, pt. i, lects. vi-viii; p. ii, lects. x, xv–xviii.

ascription of absolute power to human beings, whether one or many or all," is an iniquitous lie." Not will, but the instinctive sense of justice and reason that dwells in every human spirit, must be the ultimate basis of political obligation.

Guizot energetically assailed the long potent dogma that stressed the part of the will in the theory of the state. Liberty he held to be as little dependent on will as was authority. That the individual can be bound only by his own will, as Rousseau assumed, was to Guizot an absurdity. He is bound, as his will itself is determined, by the conscious or unconscious operation of the ideas of reason, truth and justice that inhere in his being

as man.

man has not an absolute power over himself in virtue of his will; as a moral and reasonable being he is a subject, subject to laws that he did not himself make, but which have a rightful authority over him, although, as a free agent, he has the power to refuse them, not his consent, but his obedience.1

From this rather optimistic assumption as to the psychology of the individual, Guizot's nominalism made easy for him the conclusion that political authority rested elsewhere than in human volition. For society was to him but a collection of individual men and was subject, therefore, to no other principle than that which controlled in the life of each.2

According to this reasoning sovereignty, as an absolute form of authority in a state, could be attributed neither to any individual nor to any number of individuals, but only to reason, truth and justice—the abstract ideals to which men inevitably tend to conform. In other words there was no place in political philosophy for that concept which Hobbes and Rousseau, Blackstone, Bentham and Austin had made the corner-stone of all sound doctrine, even of all possible doctrine. The monarch of the Leviathan, the community of the Contrat Social, the "supreme, irresistible, absolute, uncontrolled" authority that was placed at the summit of the English law by Blackstone,

1 Rep. Govt., pt. ii, lect. x.

Ibid., pt. i, lect. vi.