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UNIVERSiTv OF c/v
RIVERSIDt
J.
ON
CIVIL LIBERTY
SELF-GOYERNMENT.
BY
FRANCIS LLEBER, LL.D.
in
CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, ETC.;
AUTHOR OF "POLITICAL ETHICS," "PRINCIPLES OF LEGAL AND POLITICAL INTERPRETATION," ETC. ETC.
ENLARGED EDITION IN ONE VOLUME.
PHILADELPHIA:
J. B. LIPPINCOTT AND CO.
LONDON: TRL'BNER AND CO.
MDCCCLIX.
JC 2. /A
U^ 2
I o? and ' 'Ep^ojia:.
The Latin liber is believed to be derived from the same root with the
Gothic Lib, (in German Leib, body, connected with the Gothic Liban,
our live, the German leben,} so that liber would have meant originally,
he who has his own body, whose body does not belong to some one else.
It is natural that freedom appeared to the ancients, first of all, as a con-
tradistinction to slavery, or as its negation. This is not quite dissimilar
to the fact that most languages designate the state of purity by an
adjective, which indicates a negation of the state of guilt. We say inno-
cent, the negation of nocent, guilty ; as if we were calling light undark-
ness. The guilt, the crime, strikes first, and from it are abstracted the
negations unguilt, innocence. If all were free, and if freedom had never
been violated, we would probably have no word for freedom.
That Body is taken in this instance to designate independence, with
which the ideas of individuality and humanity are closely connected, is
in conformity with the history of all terms of abstraction. The sensuous
world furnishes man with the original term and idea which the advancing
intellect refines and distils. Nor can it surprise us who to this day say
somebody, everybody, for some person, every man. Who does not think
at once of Burns's lovely " Gif a body meet a body," where body is used
for human individual ? At the time of writing this note, I met with this
question in a Scottish penal trial : Was that arsenic for a beast or a
body ? Burton's Criminal Trials, vol. ii. page 59.
Here, then, body is taken so distinctly for man, that it is contra-
distinguished from beast. In the same natural manner, it may come to
AND SELF-GOVERNMENT. 39
we must remember that the following points are necessarily
involved in the comprehensive idea of the state :
The state is a society, or union of men a sovereign society
and a society of human beings, with an indelible character of
individuality. The state is, moreover, an institution which
acts through government, a contrivance which holds the
power of the whole, opposite to the individual. Since the
state then implies a society which acknowledges no superior,
the idea of self-determination applied to it means that, as a
unit and opposite to other states, it be independent, not
dictated to by foreign governments, nor dependent upon them
any more than itself has freely assented to be, by treaty and
signify man, not with reference to his intellect, but in connection with
liberty, as contradistinguished from a man-thing, i. e. slave.
At a later period, the soul comes to designate individuals, as we say
in statistical accounts, so many souls, for so many persons.
The word Free is one of the oldest words with which we are acquainted.
We find free, fry, fryg, vry, in many languages, and Hesichius gives as a
Lydian word ftf>ifv in his castle ; the Mino-tze 1 have
never been subdued by the Tartar dynasty of China, and defy
the government in their mountain fastnesses to this day, much as
the Highlanders of Scotland did before the battle of Culloden ;
but the English maxim was settled by a highly conjunctive, a
nationalized people, and at the same time when law and general
government was extending more and more over the land. It is
insisted on in the most crowded city the world has ever seen,
with the same jealousy as in a lonely mountain dwelling; it is
carried out, not by retainers and in a state of war made per-
manent, as Essex tried to do when he was arrested, but by
the law, which itself has given birth to it. The law itself
says: Be a man, thou shalt be sovereign in thy house. It is
this spirit which brought forth the maxim, and the spirit which
it necessarily nourishes, that makes it important.
It is its direct antagonism to a mere police government, its
bold acknowledgment of individual security opposite to govern-
ment, it is its close relationship to self-government, which give
so much dignity to this guarantee. To see its value, we need
only throw a glance at the continental police, how it enters at
night or in the day, any house or room, breaks open any
drawer, seizes papers or anything it deems fit, without any
other warrant than the police hat, coat and button.
Nor must we believe that the maxim is preserved as a piece
of constitutional virtu. As late as the month of June, 1853,
a bill was before the House of Commons, proposing some
guarantee against property of nuns and monks being too
easily withdrawn from relations, and that certain officers
should have the right to enter nunneries, from eight A.M. to
eight o'clock P.M., provided there was strong suspicion that
an inmate was retained against her will. The leading minis-
In the province of Koiiang-Si, containing mountainous regions.
64 ON CIVIL LIBERTY
ter of the crown in the Commons, Lord John Russell, op-
posed the bill, and said: "Pass this bill, and where will be
the boasted safety of our houses ? It would establish general
tyranny."
The prohibition of "general warrants." The warrant is
the paper which justifies the arresting person to commit so
grave an act as depriving a citizen, or alien, of personal liberty.
It is important, therefore, to know who has the right to issue
such warrants, against whom it may be done, and how it must
be done, in order to protect the individual against arbitrary
police measures. The Anglican race has been so exact and
minute regarding this subject, that the whole theory of the
warrant may be said to be peculiarly Anglican, and a great
self-grown institution. "A warrant," the books say, "to de-
prive a citizen of his personal liberty should be in writing,
and ought to show the authority of the person who makes it,
the act which is authorized to be done, the name or descrip-
tion of the party who is authorized to execute it, and of the
party against whom it is made ; and, in criminal cases, the
grounds upon which it is made." The warrant should name
the person against whom it is directed ; if it does not, it is
called a general warrant, and Anglican liberty does not
allow it. 1 Where it is allowed there is police government, but
not the government for freemen. It is necessary that the
person who executes the warrant be named in it. Otherwise
the injured citizen, in case of illegal arrest, would not know
whom he should make responsible ; but if the person be named,
he is answerable, according to the Anglican principle that
every officer remains answerable for the legality of all his
acts, no matter who directed them to be done. Indeed, we
1 A warrant to apprehend all persons suspected, or all persons guilty,
etc. etc. is illegal. The person against whom the warrant runs, ought
to be pointed out. The law on this momentous subject was laid down
by Lord Mansfield in the case of Money vs. Leach, 3 Bur. 1742, where the
" general warrant" which had been in use since the revolution, directing
the officers to apprehend the " authors, printers, and publishers" of the
famous No. 45 of the North Briton, was held to be illegal and void.
AND SELF-GOVERNMENT. 65
may say the special warrant is a death-blow to police govern-
ment.
The Constitution of the United States demands that "no
warrants shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized, etc." 1
The warrant is held to be so important an element of civil
liberty, that a defective warrant is considered by the common
law of England and America one of the reasons which reduce
the killing of an officer from murder to manslaughter. The
reader will see this from the following passage, which I copy
from a work of authority both here and in England. I give
the passage entire, because it relates wholly to individual
liberty, and I shall have to recur to it. 2 The learned jurist
" Though the killing of an officer of justice, while in the
regular execution of his duty, knowing him to be an officer,
and with intent to resist him in such exercise of duty, is mur-
der, the law in that case implying malice, yet where the
process is defective or illegal, or is executed in an illegal
manner, the killing is only manslaughter, unless circumstances
appear, to show express malice; and then it is murder. Thus,
the killing will be reduced to manslaughter, if it be shown in
evidence that it was done in the act of protecting the slayer
against an arrest by an officer acting beyond the limits of
his precinct ; or, by an assistant, not in the presence of the
officer; or, by virtue of a warrant essentially defective in
describing either the person accused, or the offence ; or, where
the party had no notice, either expressly, or from the circum-
stances of the case, that a lawful arrest was intended ; but,
1 The reader will find a copy of the Constitution of the United States
in the appendix.
2 This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I
have copied by the permission of my esteemed and distinguished friend.
I have left out all the legal references. The professional lawyer is ac-
quainted with the book, and the references would be important to him
alone.
5
66 ON CIVIL LIBERTY
on the contrary, honestly believed that his liberty was assailed
without any pretence of legal authority ; or, where the arrest
attempted, though for a felony, was not only without warrant,
but without hue and cry, or fresh pursuit; or, being for a
misdemeanor only, was not made flagrante delicto ; or, where
the party was on any other ground, not legally liable to be
arrested or imprisoned. So, if the arrest, though the party
were legally liable, was made in violation of law, as, by
breaking open the outer door or window of the party's dwell-
ing-house, on civil process; for such process does not justify
the breaking of the dwelling-house, to make an original arrest;
or, by breaking the outer door or window, on criminal process,
without previous notice given of his "business, with demand of
admission, or something equivalent thereto, and a refusal."
The Habeas Corpus Act. This famous act of parliament
was passed under Charles II., and is intended to insure to
an arrested person, whether by warrant or on the spot, that
at his demand he be brought, by the person detaining him,
before a judge, who may liberate him, bail him, or remand
him, no matter at whose command or for what reasons the
prisoner is detained. It allows of no " administrative ar-
rests," as extra-judicial arrests are called in France, or im-
prisonment for reasons of state. The habeas corpus act
further insures a speedy trial, 1 a trial by the law of the land
and by the lawful court three points of the last importance.
It, moreover, guarantees that the prisoner know for what he is
arrested, and may properly prepare for trial. The habeas
corpus act did by no means first establish all these principles,
but numberless attempts to secure them had failed, and the act
may be considered as the ultimate result of a long struggle be-
tween law and the individual on the one hand, and power on the
1 Long imprisonments before trial are customary means resorted to on
the continent of Europe in order to harass the subjects. Guerrazzi and
other liberals were sentenced, in Tuscany, on the first of July, 1853,
after having been imprisoned for fifty months before ever being brought
to trial. It is useless to mention more instances ; for, long imprisonment
before trial is the rule in absolute governments whenever it suits them.
AND SELF-GOVERNMENT. 67
other. The history of this act is interesting and sympto-
matic. 1
The Constitution of the United States prohibits the sus-
pension of the habeas corpus act, " unless when, in cases of
rebellion or invasion, the public safety may require it ;" and
Alexander Hamilton says, in the " Federalist ": 2 "The esta-
blishment of the writ of habeas corpus, the prohibition of ex
post facto laws and of titles of nobility, to which we have no
corresponding provisions in our constitution," (therefore per-
sonal liberty, or protection and safety, supremacy of the law
and equality,) "are perhaps greater securities to liberty than
any it contains ;" and, with reference to the first two, he justly
adds the words of "the judicious Blackstone." 3
All our state constitutions have adopted these important
principles. The very opposite of this guarantee Was the
"lettre de cachet," or is the arbitrary imprisonment at pre-
sent in France.,
A witness of singular weight, as to the essential importance
of Anglican personal liberty, must not be omitted here. The
Emperor Napoleon III. who, after Orsini's atteiript to assassi-
nate him, obtained the "law of suspects" according to which
the French police, or administration, (not the courts of justice,)
may transport a "suspect" for seven years, wrote, in earlier
days, with admiration of English individual liberty. 4
1 The appendix contains the habeas corpus act.
2 Paper, No. Ixxxiv.
3 Blackstone's Commentaries, vol. i. page 136. Note, in the "Fede-
ralist."
4 In 1854 a complete edition of the emperor's works was published.
In that edition was a chapter headed De la Liberte individuelle en Angle-
terre. In it are the following passages :
' No inhabitant of Great Britain (excepting convicts) can be expelled
from the United Kingdom. Any infraction of this clause (the habeas
corpus act) would be visited with the severest penalties." He remarks
that we have no public prosecutor, the attorney-general interfering only
on extraordinary occasions ; and if criminals sometimes escape justice,
personal liberty is the less endangered. " In England, authority is never
influenced by passion ; its proceedings are always moderate, always
legal ;" there is " no violation of the citizen's domicile, so common in
68 ON CIVIL LIBERTY.
There was in England, until within a recent date, a remark-
able deviation from the principles of personal liberty the
impressment. The crown assumed the right to force any
able-bodied man on board a man-of-war, to serve there as
sailor. There has always been much doubt about this
arrogated privilege of the crown, and, generally, sailors
only were taken, chiefly in times of war and when no hands
would freely enlist. Every friend of liberty will rejoice that
the present administration has taken in hand a new plan of
manning the navy, by which this blemish will be removed. 1
France ;" family correspondence is inviolate, and no passports bar the
most perfect freedom of traffic, " passports, the oppressive invention of
the Committee of Public Safety, which are an embarrassment and an
obstacle to the peaceable citizen, but which are utterly powerless against
those who wish to deceive the vigilance of authority." A law deprived
of the general support of public opinion would be a mere scrap of paper.
" It suffices for us to note this fact, that in France, where such jealousy
is shown of everything which touches equality and national honor, people
do not attach themselves so religiously to personal liberty. The tran-
quillity of the citizen may be disturbed, his domicile may be violated, he
may be made to undergo for whole months a preventive imprisonment
personal guarantees may be despised, and a few generous men shall raise
their voices ; but public opinion will remain calm and impassible as long
as no political passion is awakened. There lies the greatest reason for
the violence of authority ; it can be arbitrary because there is no curb to
check it. In England, on the contrary, political passions cease the mo-
ment a violation of common right is committed ; and this, because Eng-
land is a country of legality, and France has not yet become so ; because
England is a country solidly constituted, while France struggles by turns
for forty years between revolutions and counter-revolutions, and the
sanctity of principle has yet to be created there."
1 The plan has not yet been published, but one of the ministers, Sir
James Graham, said in the Commons, in April, 1853 :
" The first point on which all the authorities consulted were agreed is,
that whatever measures are taken, must rely for success on the volun-
tary acceptance of them by the seamen, and that any attempt to intro-
duce a coercive mode of enlistment would be followed by mischievous
consequences and failure." The difficult question does not yet seem to
be wholly settled (1859.) It seems difficult to obtain a sufficient num-
ber of seamen to man the fleet in emergencies. In France seamen are
drafted, as soldiers are for the army.
CHAPTER VII.
BAIL. PENAL TRIAL.
3. CONNECTED with the guarantees of personal liberty,
treated .of in the foregoing chapter, is the bail.
The law of all nations not wholly depraved in a political
point of view, adopts the principle that a man shall be held
innocent until proved by process of law to be otherwise. In
fact, the very idea of a trial implies as much. Theoretically,
at least, this is acknowledged by all civilized nations, although
often the way in which judicial affairs are conducted, and in
many countries the very mode of trying itself, are practical
denials of the principle. But even in the freest country there
is this painful yet unavoidable contradiction, that while we
hold every person innocent until by lawful trial proved to be
guilty, we must arrest a person in order to bring him to a
penal trial ; and, although by the law he is still considered
innocent, he must be deprived of personal liberty until his
trial can take place, which cannot always follow instantly
upon the arrest. To mitigate this harshness as much as
possible, free nations guarantee the principle of bailing in
all cases in which the loss of the bailed sum may be considered
as a more serious evil than the possible punishment. The
amount of bail must depend upon the seriousness of the charge,
and also upon the means of the charged person. If judges
were allowed to demand exorbitant bail, they might defeat the
action of this principle in every practical case. It was enacted,
therefore, in the first year of William and Mary, 1 and has
been adopted in all our constitutions, that no " excessive bail"
1 William and Mary, stat. ii. c. 2.
(69)
70 ON CIVIL LIBERTY
shall be required. The nature of the case admits of no more
exact term ; but, with an impeachment hanging over the judges,
should the principle thus solemnly pronounced be disregarded,
it has worked well for the arrested person. Indeed, there are
frequent cases in the United States in which this principle is
abused and society is endangered, because persons are bailed
who are under the heaviest charges, and have thus an opportunity
of escape if they know themselves guilty. As this can take
place only with persons who have large sums at their disposal,
either in their own possession or in that of their friends, and
as liberty demands first of all the foundation of justice, it is
evident that this abuse of bail works as much against essential
liberty as the proper use of bail guarantees it. We ought,
everywhere, to return to the principle of distinguishing trans-
gressions of the law into bailable offences and offences for the
suspected commission of which the judge can take no bail.
These are especially those offences for the punishment of which
no equivalent in money can be imagined ; for instance, death
or imprisonment for life, and those offences which put the
offender into the possession of the sum required for the bail.
It has been objected to the bail that it works unjustly. It
temporarily deals with so precious a thing as personal liberty
according to possession of wealth : but it must be remembered
that the whole arrest before trial is an evil of absolute neces-
sity, and the more we can limit it the better.
Liberty requires bail, and that it be extended as far as
possible ; and it requires likewise that it be not extended to
all offences, and that substantial bail only be accepted.
4. Another guarantee, of the last importance, is a well-
secured penal trial, hedged in with an efficient protection of
the indicted person, the certainty of his defence, a distinct
indictment charging a distinct act, the duty of proving this
act on the part of government, and not the duty of proving
innocence on the part of the prisoner, the fairness of the trial by
peers of the prisoner, the soundness of the rules of evidence,
the publicity of the trial, the accusatorial (and not the inquisi-
torial) process, the certainty of the law which is to be applied,
AND SELF-GOVERNMENT. 71
together with speed and utter impartiality, and an absolute
verdict. It is moreover necessary that the preparatory pro-
cess be as little vexatious as possible.
When a person is penally indicted, he individually forms
one party, and society, the state, the government, forms the
other. It is evident that unless very strong and distinct gua-
rantees of protection are given to the former, that he be
subjected to a fair trial, and that nothing be adjudged to him
but what the law already existing demands and allows, there
can be no security against oppression. For government is a
power, and, like every power in existence, it is desirous of
carrying its point a desire which increases in intensity the
greater the difficulties are which it finds in its way.
Hence it is that modern free nations ascribe so great an
importance to well regulated and carefully elaborated penal
trials. Montesquieu, after having given his definitions of
what he calls philosophical liberty, and of political liberty,
which, as we have seen, he says, consists in security, continues
thus : " This security is never more attacked than in public
and private accusations. It is, therefore, upon the excellence
of the criminal laws that chiefly the liberty of the citizen de-
pends." 1 Although we consider this opinion far too general,
it nevertheless shows how great a value Montesquieu set on a
well-guarded penal trial, and he bears us out in considering it
an essential element of modern liberty. The concluding words
of Mr. Mittermaier's work on the Penal Process of England,
Scotland, and the United States, are: "It will be more and
more acknowledged how true it is that the penal legislation is
the key-stone of a nation's public law." 2
This passage of the German criminalist expresses the truth
more accurately than the quoted dictum of Montesquieu. For,
although we consider the penal trial and penal law in general
intimately connected with civil liberty, it is nevertheless a fact
that a sound penal trial is invariably one of the last fruits of
1 Esprit des Lois, xii. 2 ; "Of the Liberty of the Citizen."
2 This comprehensive and excellent work was published in Germany,
Erlangen, 1851.
72 ON CIVIL LIBERTY
political civilization, partly because it is one of the most diffi-
cult subjects to elaborate, and because it requires long expe-
rience to find the proper mean between a due protection of
the indicted person and an equally due protection of society ;
partly because it is one of the most difficult things in all
spheres of action to induce irritated power to limit itself, as
well as to give to an indicted person the full practical benefit
of the theoretic sentence, easily pronounced like all theory,
that the law holds every one innocent until proved not to be
so. The Roman and Athenian penal trials were sadly defi-
cient. The English have allowed counsel to the penally in-
dicted person, only within our memory, while they had been
long allowed in the United States. 1 The penal trial in the
Netherlands was imperfect, when, nevertheless, the Nether-
landers are allowed on all hands to have enjoyed a high de-
gree of civil liberty. It is one of the most common facts in
history that a nation is more or less advancing in nearly all
the branches of civilization, while the penal trial and the
whole penal law remains almost stationary in its barbarous
inconsistency. The penal trial of France, up to the first
revolution, remained equally shocking to the feelings of hu-
manity and to the laws of logic.
1 It must not be forgotten, however, that deficient as the penal trial of
England, without counsel for the defendant was, it contained many guaran-
tees of protection, especially publicity, a fixed law of evidence, with the
exclusion of hearsay evidence, the jury and the neutral position of the
judge in consequence of the trial by jury ; and the strictly accusatorial
character of the trial, with the most rigid adhesion to the principle of
trying a person upon the indictment alone, so that the judge could be,
and in later times really had. been, the protector of the prisoner. Had
the trial been inquisitorial instead of accusatorial, the absence of counsel
for defence would have been an enormity. To this enormity Austria has
actually returned since the beginning of this century. The cede promul-
gated by Joseph gave counsel, or a " defensor," to the prisoner ; but,
although the process remained inquisitorial, the defensor was again dis-
allowed. The late revolution re-established him, but whether he has been
discontinued again of late I do not know. Nor can it be of very great
importance in a country in which the " state of siege" and martial law
seem to be almost permanent.
AND SELF-GOVERNMENT. 73
The reason of this apparent inconsistency is that, in most
cases, penal trials affect individuals who do not belong to
the classes which have the greatest influence upon legisla-
tion. This point is especially important in countries where
the penal trial is not public. People never learn what is
going on in the houses of justice. Another and great
reason is that generally lawyers by profession are far less
interested in the penal branch of the law than in the civil.
This, again, arises from the fact that the civil law is far more
varied and complicated, consequently more attractive to a ju-
dicial mind, that the civil cases are far more remunerative, and
form the large bulk of the administration of justice. How
much the difficulty to be solved constitutes the attraction for
the lawyer, we may see from the fact that very few professional
lawyers take an interest in the punishment itself. A penal
case has attraction for them so long as it is undecided, but
what imprisonment follows, if imprisonment has been awarded,
interests them little. Very few lawyers have taken a lead in
the reform of criminal law and in prison discipline, Sir
Samuel Romilly always excepted.
Among the points which characterize a fair and sound penal
trial according to our advancement in political civilization, we
would designate the following : The person to be tried must
be present, (and of course, living j) 1 no intimidation before the
trial, or attempts by artifice to induce the prisoner to confess ;
a contrivance which protects the citizen even against being
placed too easily into a state of accusation ; the fullest possible
realization of the principle that every man is held innocent
1 Penal trials of absent persons are common in countries where the
principles of the Koman law prevail. They are common in France; and
the church has even tried deceased persons for heresy, found them guilty,
and confiscated the property which had belonged to the heretic. The
presence of the indicted person at his trial, is a principle plain to every
one so soon as once pronounced, but power acknowledges it at a late
period only, and always has a tendency to return to it, whether this
power be a monarch or his government, or an impassioned populace.
Several of the almost solemn procedures of lynch law which have occurred
of late in some of our western states, and according to which absent per-
sons were warned never to return to their domicile, are instances in point.
74 ON CIVIL LIBERTY
until proved to be otherwise, and bail ; a total discarding of
the principle that the more heinous the imputed crime is, the
less ought to be the protection of the prisoner, but, on the con-
trary, the adoption of the reverse ; a distinct indictment, and
the acquaintance of the prisoner with it, sufficiently long be-
fore the trial, to give him time for preparing the defence ; that
no one be held to incriminate himself; the accusatorial pro-
cess, with jury and publicity, therefore an oral trial and not a
process in writing ; counsel or defensors of the prisoner ; a
distinct theory or law of evidence, and no hearsay testimony ;
a verdict upon evidence alone and pronouncing guilty or not
guilty ; a punishment in proportion to the offence and in ac-
cordance with common sense and justice; 1 especially no punitory
imprisonment of a sort that necessarily must make the prisoner
worse than he was when he fell into the hands of government,
nor cautionary imprisonment before trial, which by contami-
nation must advance the prisoner in his criminality ; and that
the punishment adapt itself as much as possible to the crime
and criminality of the offender ; 2 that nothing but what the
law demands or allows be inflicted, 3 and that all that the law de-
1 The idea expressed by Dr. Paley regarding this point is revolting.
He says, in his Political Philosophy, that we may choose between two
systems, the one with fair punishments always applied, the other with
very severe punishments occasionally applied. He thus degrades penal
law, from a law founded above all upon strict principles of justice, to a
mere matter of prudential expediency, putting it on a level with military
decimation.
2 Lieber's Popular Essay on Subjects of Penal Law, and on Uninter-
rupted Solitary Confinement at Labor, etc. ; Philadelphia, 1838. I have
there treated of this all-important subject at some length.
3 Tiberius Gracchus erected a temple in honor of Liberty, with a sum
obtained for fines. If the fines were just, there was no inconsistency in
thus making penal justice build a temple of freedom, for liberty demands
security and order, and, therefore, penal justice.
On the other hand, what does a citizen reared in Anglican liberty feel
when he reads in a simple newspaper article in a French provincial pa-
per, in 1853, the following? "The minister of general police has just
decided that Chapitel, sentenced by the court to six months' imprison-
ment for having been connected with a secret society, and Brayet, sen-
AND SELF-GOVERNMENT. 75
mands be inflicted no arbitrary injudicious pardoning, which
is a direct interference with the true government of law.
The subject of pardoning is so important, especially in our
country, that I have deemed it advisable to add a paper on
pardoning, which the reader will find in the appendix.
Perhaps there are no points so important in the penal trial
in a free country, as the principle that no one shall be held to
incriminate himself, that the indictment as well as the verdict
tenced for the same offence, to two months' imprisonment, shall be trans-
ported to Cayenne for ten years, after the expiration of their sentence !"
The decree of the eighth of December, 1851, not a law, but a mere
dictatorial order, upon which ten years' transportation are added by way
of "rider" to a few months' imprisonment adjudged by the courts of law,
is this :
" Article 1. Every individual placed under the surveillance of the high
police, who shall be found having broken his assigned limits of residence,
may be transported, by way of general safety, to one of the penitentiary
colonies, at Cayenne or in Algeria.
" The duration of transportation shall be five years or less, and ten
years or more." (We translate literally and correctly, whatever the
reader may think of this sentence, which would be very droll, were it not
very sad.)
" Article 2. The same measure shall be applicable to individuals found
to be guilty of having formed part of a secret society."
The French of the last sentence is, individus reconnus coupable $ avoir
fait partie d'une societe secrete. This reconnus (found, acknowledged.)
is of a sinister import. For the question is, Found by whom ? Of
course not only by the courts, for finding a man guilty by process of law
is in French convaincre. The reconnaitre, therefore, was used in order
to include the police or any one else in authority. So that we arrive at
this striking fact : The despot may add an enormous punishment to a legal
sentence, as in the cited case, or he may award it, or rather the minister
of police under him may do it, without trial, upon mere police informa-
tion. Two hundred years ago, the English declared executive transpor-
tation beyond the seas, or deportation, to be an unwarranted grievance ;
and here we have it again, no doubt in imitation of the Roman imperial
times, (the saddest in all history,) in the middle of the nineteenth century.
So far the note as written in 1853. In 1858 Orsini made his attempt
of assassinating the Emperor of the French, when a far more stringent
law was passed, and the principle of "suspicion," so flourishing as an
element of criminality in the first French revolution, was revived.
76 ON CIVIL LIBERTY
must be definite and clear, and that no hearsay evidence be
admitted. Certainly none are more essential.
A great lawyer and excellent man, Sir Samuel Romilly,
justly says, that if the ascertaining of truth and meting out of
justice is the object of the trial, no possible objection can be
taken against it on principle. But there is this difficulty, that
if judges themselves question, they become deeply interested
in the success of their own cross-examinations, they become
biased against the prisoner, should he thwart them, or turn
questions into ridicule. Romilly makes this remark after
having actually seen this result in France, where it is always
done, (witness Mad. Lafarge's trial, or any French trial of
importance,) and certainly often with success. 1 Or let us
observe English prosecutions some centuries back.
In the inquisitorial process, it is not only done, but the pro-
cess depends upon the questioning of the prisoner.
There are other dangers connected with it. An accused
man cannot feel that perfect equanimity of mind which alone
might secure his answers against suspicion. I know from per-
sonal experience how galling it is to see your most candid
answers rewarded with suspicions and renewed questions, if
the subject is such that you cannot possibly at once clear up
all doubts. It ought never to be forgotten that the accused
person labors under considerable disadvantages, merely by the
fact that he is accused. Bullying and oppressive judges were
common in England when the principle was not yet settled
that no one shall be held to incriminate himself. The times
of the Stuarts furnish us with many instances of altercations
in the court, between the judge and the prisoner, and of judi-
cial brow-beating, to the detriment of all justice.
The trial of Elizabeth Grant, the aged and deaf Baptist
woman, who had given a night's rest under her roof to a
soldier of Monmouth's dispersed army, under Chief-Justice
Jones, 2 may serve as an instance.
1 Sir Samuel Romilly's Memoirs, vol. i. p. 315, 2d ed. ; London, 1840.
2 Plulipps's State Trials, vol. ii. 214, et seq., and, indeed, in many parts
of the work.
AND SELF-GOVERNMENT. 77
It is, among other reasons, for this very fact of prisoners on
trial being asked by the French judge about the fact at issue,
his whereabouts at the time, his previous life, and a number of
things which throw suspicion on the prisoner, although uncon-
nected with the question at issue, that Mr. Bdranger says, in
a work of just repute: "We," that is, the French, "have
contented ourselves to place a magnificent frontispiece before
the ruins of despotism ; a deceiving monument, whose aspect
seduces, but which makes one freeze with horror when entered.
Under liberal appearances, with pompous words of juries,
public debates, judicial independence, individual liberty, we
are slowly led to the abuse of all these things, and the disre-
gard of all rights ; an iron rod is used with us, instead of the
staff of justice." 1
There are peculiar reasons against examining the prisoner
in public trials, and many peculiar to the secret trial.
Although it cannot be denied, that often the questioning of
the prisoner may shorten the trial and lead to condign convic-
tion, which otherwise may not be the result, it is never-
theless right that most, perhaps all our state constitutions
have adopted this principle. It is just; it is dignified; it
is fair. The government prosecutes ; then let it prove what
it charges. So soon as this principle is discarded, we fall into
the dire error of throwing the burden of proving innocence
wholly or partially on the prisoner ; while, on the contrary, all
the burden ought to lie on the government, with all its power,
to prove the charged facts. Proving an offence and fastening
it on the offender, is one important point in the penal trial ;
but the method how it is done is of equal importance. The
Turkish cadi acknowledges the first point only; yet what I
have stated is not only true with reference to the jural society,
it is even true in the family and the school.
It is an interesting fact for the political philosopher that,
while the Anglican race thus insists on the principle of non-
self-incrimination, the whole Chinese code for that people
1 Branger, De la Justice Criminelle de France; Paris, 1818, page 2.
78 ON CIVIL LIBERTY
under a systematic mandarinism is pervaded even by the prin-
ciple of self-accusation for all, but especially for the manda-
rins.
The principle that on government lies the burden of proving
the guilt, leads consistently to the other principle, that the
verdict must be definite and absolute. Hence these two
important facts : The verdict must be guilty or not guilty, and
no absolutio ab instantia, as it is called in some countries of
the European continent; that is to say, no verdict or decision
which says, According to the present trial we cannot find you
guilty, but there is strong suspicion, and we may take you up
another time; 1 nor any "not proven," as the Scottish trial
admits of, ought to be permitted. " Not proven," does not
indeed allow a second trial, but it expresses : You are free,
although we have very strong suspicion. Secondly, the main
principle leads to the fact that no man ought to be tried twice
for the same offence. This is logical, and is necessary for the
security of the individual. A person might otherwise be ha-
rassed by the government until ruined. Repeated trials for
charges, which the government knows very well to be unfounded,
are a common means resorted to by despotic executives. Fre-
quently such procedures have led the persecuted individual
to compound with government rather than lose all his
substance.
The Anglican race, therefore, justly makes it an elementary
principle of its constitutional law, that " no man shall be tried
twice for the same offence."
I have said that a fair trial for freemen requires that the
preparatory steps for the trial be as little vexatious as possible.
They must also acknowledge the principle of non-incrimination.
This is disregarded on the whole of the European continent.
The free range of police power, the mean tricks resorted to by
the "instructing" judge or officer, before the trial, in order to
1 The reader will find in the appendix a paper on the subject of some
continental trials, and the admission of half and quarter proof and pro-
portional punishment.
AND SELF-GOVERNMENT. 79
bring the prisoner to confession, are almost inconceivable, 1
and they are the worse, because applied before the trial,
when the prisoner is not surrounded by those protections
which the trial itself grants. With reference to this point,
and in order to modify what I have stated regarding Greek
penal trials, I wish to mention the interesting fact that " the
prosecutor, in Athens, who failed to make good his charge,
incurred certain penalties, unless he obtained at least one-fifth
of the votes in his favor. In public suits, he forfeited one thou-
sand drachmae to the state, and could never again institute a simi-
lar suit. The same punishment was incurred if he declined to
proceed with the case. In private suits, he paid the defendant
one-sixth of the amount of the disputed property, as a com-
pensation for the inconvenience he had suffered in person or
character." 2
Sir Samuel Romilly had the intention of proposing in a
similar spirit, a bill by which an acquitted prisoner, having
been prosecuted for felony, should be compensated by the
county, at the discretion of the court, for loss of time and the
many evils endured. Indeed, he thought that far more ought
to be done. 3 Leave was given to bring in the compensation
bill, but it was afterwards withdrawn. It is evident that the
great difficulty would lie in the fact that the discretion of the
judge would establish at once a distinction between the verdicts,
similar to that produced by the Scottish "not guilty" and
"not proven." To compensate, however, all acquitted persons
1 This may be amply seen in the reports on French trials, and. among
other works, in Feuerbach's Collection of German Criminal Trials.
2 Herman, Political Antiquit. of Greece ; Oxon. 1836, sec. 144, where
more, and all the necessary authorities can be found.
3 Memoirs of the Life of Sir Samuel Romilly, 2d ed.; London, 1840, vol.
ii. p. 235. Strange enough, there is an English law, 25 George II., ch.
36, according to which prosecutors are to have the expenses of their pro-
secution reimbursed, and a compensation afforded them for their trouble
and loss of time. This is evidently to induce people freely to prosecute ;
but no guarantee is given on the other hand against undue prosecution,
and a compensation for the trouble and loss of time of the acquitted
person.
80 ON CIVIL LIBERTY.
would be very mischievous if we consider how many persons
are acquitted who nevertheless are guilty. Indeed, it might
well be asked whether the fear of burdening the county with
the payment of the compensation would not, in some cases,
induce the jury to find more easily a verdict of guilty.
The professional reader may think that I have not suffi-
ciently dwelt upon some essential points of a sound penal trial,
for instance, on publicity, or the independence of counsel.
He will find, however, that these subjects are treated of in
other parts of this work, to which it was necessary to refer
them.
CHAPTER VIII.
HIGH TREASON.
5. THAT penal trial which is the most important with
reference to civil liberty, and in which the accused individual
stands most in need of peculiar protection by the law, is the
trial for treason. The English law does not know the term
"political offence," of which the trial for treason is, commonly,
the highest in importance. Political Offence is a term belong-
ing to the modern law of some countries of the European con-
tinent, 1 and it was doubtless trials for offences of this character,
which those jurists and publicists had partly in view, who, the
reader will recollect, point out a well-guarded penal trial,
almost as the sole characteristic of civil liberty.
If a well-guarded penal trial in general forms an important
element of our liberty, because the individual is placed
opposite to public power, a carefully organized trial for treason
is emphatically so. In the trial for treason the government is no
longer theoretically the prosecuting party, as it may be said
it is in the case of theft or assault, but government is the
really offended, irritated party, endowed at the same time with
all the force of the government, to annoy, persecute, and often
1 The American reader ought to keep in mind that the term political
offence is now a well-established term on the continent of Europe. It is
used in legislation ; thus the late French republic abolished capital pu-
nishment for political offenders, and in the treaty of extradition between
France and Spain, "political offenders" are excepted, and not subject to
extradition. It would, nevertheless, be difficult to give a definition of
the term Political Offence sufficiently clear to be acceptable to a law-
abiding administration of justice. Indeed, we may say, that it was na-
tural this term should have presented itself, in the course of things on
the continent of Europe, and it is equally natural, and is full of meaning,
that the English law does not know it.
6 (81)
82 ON CIVIL LIBERTY
to crush. Governments have, therefore, been most tenacious
in retaining whatever power they could in the trial for treason ;
and, on the other hand, it is most important for the free citizen
that in the trial for treason, he should not only enjoy the
common protection of a sound penal trial, but far greater
protection. In despotic countries we always find that the little
protection granted in common criminal trials, is withheld in
trials for treason; in free countries, at least in England
and the United States, greater protection is granted, and
more caution demanded, in trials for treason than in the
common penal process. The trial for treason is a gauge of
liberty. Tell us how they try people for treason, and we will
tell you whether they are free. It redounds to the glory of
England that attention was directed to this subject from early
times, and that guarantees were granted to the prisoner
indicted for treason, centuries before they were allowed to the
person suspected of a common offence ; and to that of the
United States, that they plainly defined the crime of treason,
and restricted it to narrow limits, in their very constitution.
This great charter says, Section III. :
1. " Treason against the United States shall consist only
in levying war against them, or in adhering to their enemies,
giving them aid and comfort. No person shall be convicted
of treason, unless on the testimony of two witnesses to the
same overt act, or confession in open court.
2. " Congress shall have power to declare the punishment
of treason ; but no attainder of treason shall work corruption
of blood or forfeiture, except during the life of the person
attainted."
Whether political societies, not so fortunately situated as
ourselves, yet equally prizing civil liberty, might safely
restrict the crime of treason to such narrow limits as the wise
and bold framers of our constitution have done, is a subject
which belongs to a branch of political science that does not
occupy us here ; but it may be asserted that several cases have
actually occurred in the United States, in which all nations
except the American would have considered the provisions of
AND SELF-GOVERNMENT. 83
our constitution insufficient, and in which nevertheless they
have been found adequate.
We may consider the American law of high treason as the
purest in existence, and it shows how closely the law of
treason is connected with civil liberty. Chief Justice Mar-
shall said: "As there is no crime which can more excite and
agitate the passions of men than treason, no charge demands
more from the tribunal before which it is made a deliberate and
temperate inquiry. Whether the inquiry be directed to the
fact or to the law, none can be more solemn, none more
important to the citizen or to the government ; none can more
affect the safety of both." 1
All constitutions of the different American states, which
mention treason, have the same provision. Those that say
nothing special about it, have the same by law, and in con-
formity with the principles which the respective constitutions
lay down regarding penal trials. 2 None admit of retrospective
laws, of legislative condemnations of individuals, or of attain-
ders.
The course which the development of the law of treason takes
in history is this : At first there exists no law of treason, be-
cause the crime is not yet separated from other offences, as
indeed the penal and civil laws are not separated in the earliest
periods. The Chinese code, so minute in many respects, mixes
the two branches, and debtors are treated as criminal offenders,
reminding us, in this particular, of the early Roman law. When
1 The Writings of John Marshall, p. 42. Ex parte Bollman and
Swartwout. The rebellion of the Mormons in 1858, has occurred since
the remarks in the text were written. It would seem sound reasoning
and statesmanship, that the narrower the limits are to which the public
law restricts treason, the more necessary it becomes to execute the law
fully within those limits.
2 Judge Story says : " A state cannot take cognizance, or punish the
offence (i.e. treason against the United States,) whatever it may do in
relation to the offence of treason, committed exclusively against itself, if
indeed any case can, under the constitution, exist, which is not at the
same time treason against the United States." Chap. 28, vol. iii. of Com-
mentaries on the Constitution of the United States.
84 ON CIVIL LIBERTY
first treason comes to be separated from the other offences, it
is for the twofold purpose of inflicting more excruciating pains,
and of withholding from the trial the poor protection which is
granted to persons indicted for common offences. The dire
idea of a crimen exceptum gains ground. The reasoning, or
rather unreasoning, is that the crime is so enormous that the
criminal ought not to have the same chances of escape, thus
assuming that the accused, yet to be proved to be a criminal,
is in fact a criminal, and forgetting, as has been indicated
before, that the graver the accusation is, and the severer
therefore the punishment, in case of established guilt, may be,
the safer and more guarded ought to be the trial. It is a
fearful inconsistency, very plain when thus stated, yet we find
that men continually fall into the same error,, even in our
own days. How often is lynch law resorted to in our country,
on the very plea that the crime, still a suspected one, is so in-
famous that the regular course of law is too slow or too doubt-
ful ! The same error prevailed regarding witchcraft. The
pope declared it a crimen exceptum too abominable to be
tried by common process. Protestant governments followed
the example. 1
At the same time we find that, at the period of which we
are now speaking, the law of treason is vastly extending, and
all sorts of offences, either because considered peculiarly
heinous, or because peculiarly displeasing to the public power,
are drawn within the meaning of treason. A list of all the
offences which at some time or other have been considered to
1 I seize upon this opportunity of advising every young reader of this
work to study with earnest attention the history of the witch-trials, form-
ing, possibly, with the African slave-trade, the greatest aberrations of
our Cis-Caucasian race. Such works as Soldan's History of the Witch-
Trials exhibit the psychology of public and private passion, of crime and
criminal law, in so impressive and instructive a manner, that the sad
course of crime and error having been ran through, it pught not to stand
on record in vain for us. We learn, in history and in psychology, as in na-
ture, to understand the principles, motives, and laws of minor actions, by
the 'changes and convulsions on a large scale ; and the vast changes and
revulsions by the microscopic observation of the minute reality around,us.
AND SELF-GOVERNMENT. 85
amount to treason, from the crime of "offended divine
majesty," (crimen laesae majestatis divinae,) in which stealing
from a church was included, to the most trivial common
offences, and which I have made out for my own use, would
astound the reader, if this were the place to exhibit it.
When political civilization advances, and people come to
understand more clearly the object and use of government, as
well as the dangers which threaten society and the individual,
the very opposite course takes place. More protection is
granted to the person indicted for treason, than in common
penal trials, and the meaning of treason is more and more
narrowed. The definition of treason is made more distinct,
and constructive treason is less and less allowed, until we arrive
at our own clear and definite law of treason.
It is thus that the law of treason becomes, as I stated
before, a symptomatic fact, and is in politics what roads, the
position of woman, public amusements, the tenure of land,
architecture, habits of cleanliness, are in other spheres. They
are gauges of social advancement. The more I studied this
subject, the more I became convinced of the instruction to be
derived from the history of the law of treason in ancient
times, the middle ages, and modern periods, and it was my
intention to append a paper to this work, which should give a
survey of the whole. When, however, I came to arrange my
long collected materials, I found, although firmly resolved to
disregard an author's partiality for materials of interest once
collected, and to restrict the paper to the merest outlines, that
it would be impossible to do any justice to the subject without
allowing to it a disproportionally large place. I decided,
therefore, to leave the subject for a separate work.
In conclusion I would repeat, experience proves that not
only are all the guarantees of a fair penal trial peculiarly neces-
sary for a fair trial for treason, but that it requires additional
safeguards ; and, of the one or the other, the following seem
to me the most important :
The indictment must be clear as to facts and time, when the
indicted act has been committed;
86 ON CIVIL LIBERTY
The prisoner must have the indictment a sufficient time
before the trial, so as to be able to prepare for it;
He must have a list of the witnesses against him, an equal
time beforehand ;
A sufficient time for the trial must be allowed; and the
prisoner must not be seized, tried, and executed, as Cornish
was, in 1685, in a week ;
Counsel must be allowed, as a matter of course ;
The judges must be impartial and independent, and ample
challenges must be allowed ; peers must judge. Consequently,
judges must not be asked by the executive, before the trial, what
their judgment would be if such or such a case should be brought
before them, as was repeatedly done by the Stuarts;
Of all trials, hearsay must be excluded from the trial for
treason ;
Facts, not tendencies ; acts, not words or papers written by
the indicted person, and which have never been allowed to
leave his desk, must be charged ;
Perfect publicity must take place from beginning to end,
and reporters must not be excluded; for it is no publicity in
a populous country that allows only some twenty or forty
by-standers j 1
The trial must be in presence of the prisoner;
Several witnesses must be required to testify to the same
fact, and the witnesses for the prisoner must be as much upon
oath as those for the government;
Confession, if unconditionally admitted at all, must at least
be in open court;
There must be no physical nor psychical torture or coercion ;
There must be good witnesses, not known villains or
acknowledged liars, as Titus Gates, or Lord Howard against
Lord Russell;
The judges must not depend upon the executive ;
1 When, in 1858, Count Montalembert was tried in Paris for having
written a pamphlet in praise of England, a peculiarly small court-room
was selected, only a few persons were admitted, by tickets, and no notes
were allowed to be taken.
AND SELF-GOVERNMENT. 87
No evidence must be admitted which is not admitted in
other trials;
There must be a fixed punishment;
There must be no constructive treason ;
And the judges must not be political bodies.
These guarantees have been elaborated by statute and com-
mon law, through periods of freedom and tyranny, by the
Anglican race. The English law grants these safeguards,
except indeed the last to lords, because, according to the
principle that every one must be tried by his peers, a lord is
tried by the house of lords. It showed great wisdom that
the framers of our constitution did not assign the trial for
treason to the senate, 1 as the former French constitution
appointed the house of peers to be the court for high treason.
American impeachments are tried indeed by the senate, but it
will be observed that the American trial of impeachment is not
a penal trial for offences, but a political institution, trying for
political capacity. The senate, when sitting as a court to try
impeachments, can only remove from office, whatever the crime
may have been ; and the impeached person can be penally
tried after the senate has removed him from office. In its
political character, then, but in no other point, the American
impeachment resembles the Athenian ostracism, which was
likewise a political, and not a penal institution. The English
impeachment is a penal trial.
The trials for treason going on in many countries of the
European continent, especially in Naples and the Austrian
dominions, are, by way of opposite, fair illustrations of what
has been stated here. 2
The trial for treason has been treated of in this place
because naturally connected with the subject of the penal trial
in general. Otherwise it would have been more properly
1 The American trials for treason are collected in Francis Wharton's
State Trials of the United States ; Philadelphia, 1846.
' 2 The reader may be acquainted with the Eight Hon. Mr. Glad-
stone's pamphlet on Neapolitan trials for treason, published in 1851. It
is but a sample.
ON CIVIL LIBERTY.
enumerated among the guarantees connected more especially
with the general government of a free country. We return,
therefore, once more to the guarantees of individual rights. 1
1 1 would mention for the younger student, that when I study per-
vading institutions, or laws and principles which form running threads
through the whole web of history, I find it useful to make chronological
tables of their chief advancements and reverses. Such tables are very
suggestive, and strikingly show what we owe to the continuity of human
society. None of these tables has been more instructive to me than that
on the history of the law of treason.
CHAPTER IX.
COMMUNION. LOCOMOTION, EMIGRATION.
6. THE freedom of communion is one of the most precious
and necessary rights of the individual, and one of the indis-
pensable elements of all advancing humanity so much so,
indeed, that it is one of those elements of liberty, which would
have never been singled out, had not experience shown that it
forms invariably one of the first objects of attack, when
arbitrary power wishes to establish itself, and one of the first
objects of conquest, when an unfree people declares itself
free.
I have dwelt on the primordial right of communion in the
Political Ethics at great length, and endeavored to show that
the question is not whether free communion or a fettered press
be conducive to more good, but that everything in the in-
dividual and in nations depends in a great measure upon
communion, and that free communion is a pre-existing condi-
tion. The only question is, how to select the best government
with it, and how best to shield it, unless, indeed, we were speak-
ing of tribes in a state of tutelage, ruled over by some highly
advanced nation.
In this place we only enumerate freedom of communion as
one of the primary elements of civil liberty. It is an element
of all civil liberty. No one can imagine himself free if his
communion with his fellows is interrupted or submitted to
surveillance ; but it is the Anglican race which first established
it on a large scale, broadly and nationally acknowledged. 1
Free nations demand and guarantee free communion of
speech, the right of assembling and publicly speaking, for it is
communion of speech in this form which is peculiarly exposed
1 The first fair play was given to a free press in the Netherlands.
(89)
90 ON CIVIL LIBERTY
to abridgment or suppression by the public power; they
guarantee the liberty of the press, and, lastly, the sacredness
of epistolary communion.
It is a very striking fact that, although the Constitution of
the United States distinctly declares that the government of
the United States shall only have the power and authority
positively granted in that instrument, so that, in a certain
respect, it was unnecessary to say what the government should
not have the right to do, still, in the very first article of the
Additions and Amendments of the Constitution, congress is
forbidden to make any "law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press, or the right of the
people peaceably to assemble, and to petition the government
for a redress of grievances."
The reader will keep in mind that the framers of our con-
stitution went out of their way and preferred to appear incon-
sistent, rather than omit the enumeration of those important
liberties, that of conscience, as it is generally called, that of
communion, and of petitioning ; and the reader will remember,
moreover, that these rights were added as amendments. They
must then have appeared very important to those who made
our constitution, both on account of their intrinsic importance,
and because so often attacked by the power-holders. Let the
reader also remember that, if it be thus important to abridge
the power of government to interfere with free communion, it
is at least equally important that no person or number of men
interfere, in any manner, with this sacred right. Oppression
does not come from government or official bodies alone. The
worst oppression is of a social character, or by a multitude.
The English have established the right of communion, as so
many other precious rights by common law, by decisions, by
struggles, by revolution. All the guarantee they have for the
unstinted enjoyment of the right lies in the fact that the
whole nation says with one accord, as it were : Let them try
to take it away.
It is the same with our epistolary communion. The right
AND SELF-GOVERNMENT. 91
of freely corresponding is unquestionably one of the dearest
as well as most necessary of civilized man; yet, our fore-
fathers were so little acquainted with a police government,
that no one thought of enumerating the sacredness of letters
along with the freedom of speech and the liberty of the press.
The liberty of correspondence stands between the two ; free
word, free letter, free print. The framers did not think of it,
as the first law-makers of Rome are said to have omitted the
punishment of parricide.
The sacredness of the letter appears the more important
when it is considered that in almost all civilized countries the
government is the carrier of letters and actually forbids any
individual to carry sealed letters. 1 So soon as the letter, there-
fore, is dropped into the box, where, as it has just been stated,
the government itself obliges the correspondent to deposit it, it
is exclusively entrusted to the good faith and honorable dealing
of government. If spies, informers, and mouchards are odious
to every freeman and gentleman, the prying into letters, car-
ried on in France and other countries, with bureaucratic sys-
tem, is tenfold so, for it strikes humanity in one of its vital
points, and had the mail acquired as great an importance in
the seventeenth century as in ours, as an agent of civiliza-
tion, and had Charles I. threatened this agent as he invaded
the right of personal liberty, the Petition of Right would have
mentioned the sacredness of letters as surely, as it pointed out
the billeting of soldiers, as one of the four great grievances of
which the English would be freed, before they would grant any
supplies to the government. 2
1 The law of the United States prohibits any private person periodi-
cally and regularly to carry letters, and also to carry letters in mail ships.
2 The American states in which slavery exists, have not considered the
laws or principles relating to letters to apply to public journals, when sus-
picion exists that they contain articles hostile to slavery. In some cases
people have broken into the post-office and seized the obnoxious papers ;
in other cases the state legislature have decreed punishments for propa-
gating abolition papers. Thus we read in the National Intelligencer,
Washington, October 6, 1853. that " Mr. Herndon, postmaster at Glen-
ville, informs the editor of the Religious Telescope, at Circleville, Ohio,
92 ON CIVIL LIBERTY
In all the late struggles for liberty on the continent of
Europe, the sacredness of letters was insisted upon, not from
abstract notions, but for the very practical reason that govern-
ments had been in the habit of disregarding it. Of course,
they now do so again. The English parliament took umbrage,
a few years ago, at the liberty a minister had taken of order-
ing the opening of letters of certain political exiles residing
in England, and although he stated that it had been the habit
of all administrations to order it under certain circumstances,
he promised to abstain in future. In the United States there
is no process or means known to us, not even by writ of a
court, we believe, by which a letter could be extracted from
the post-office, except by him to whom it is addressed; and,
as to the* executive unduly opening letters, it would be cause
for instant impeachment.
Quite recently, in the month of April, 1853, it appeared
in the prosecution of several persons of distinction at Paris,
for giving wrong and injurious news to foreign papers, that
their letters had not only been opened at the post-office, but
that the originals had been kept back, and copies had been
sent to the recipients, with a postcript, written by the govern-
ment officer, for the purpose of fraudulently explaining the
different handwriting. It stated that the correspondent had a
sore hand. When the counsel for the accused said that the
falsifying officer ought to be on the bench of the accused, the
court justified the prefect of the police, on the ground of
that having, according to the laws of Virginia, opened and inspected his
papers, and found them to contain abolition sentiments, he has refused to
deliver them as addressed, and has publicly burnt them in presence of a
magistrate. It appears by his letter that the penalty for circulating such
papers, is imprisonment in the penitentiary for not less than one, nor
more than five years."
Such is the law, and its lawfulness, wisdom, and dignity must be judged
of by the laws and principles by which other measures are judged ; but it
cannot be denied that a freeman feels himself circumscribed so far as he
is denied to read what he chooses. If a government or a set of men were
to forbid a man to read an atheistic paper, though he might be a fervent
Christian, his liberty would be undoubtedly circumscribed pro tanto.
That the seizure of English papers on the continent, is of frequent oc-
currence, is well known by every reader of the daily papers.
AND SELF-GOVERNMENT. 93
" reasons of state." No commentary is necessary on such
self-vilification of governments ; but this may be added, that
these outrages were committed even without a formal warrant
from any one, but on the sole command of the police. Are
we, then, wrong in calling such governments police govern-
ments ? It is not from a desire to stigmatize these govern-
ments. It is on account of the prevailing principle, and the
stigma is a natural consequence of this principle. 1
1 In the decision of the appellate court in the same case we find this
to be the chief argument, that government establishes post-offices, and
cannot be expected to lend its hand to the promotion of mischief, by
carrying letters of evil-doers. This is totally fallacious. Government
does not establish post-offices, but society establishes them for itself,
though it may be through government. The mail is no boon granted by
government.
If it did, it is not a benefit done by a second party, as when A makes
a present to B, but government is simply and purely an agent ; and,
what is more, the right of establishing post-offices is not an inherent at-
tribute of government, such as the administration of justice or making
war. Government merely becomes the public carrier, for the sake of
general convenience. There are many private posts, and governments
without government post-offices, for instance, the republic of Hamburg.
The opening of letters without proper warrant is a frightful perversion
of power, and though government should be able to get at secret machi-
nations, the secret of letters is a primordial condition. Government
might, undoubtedly, know many useful things, if the sacredness of
catholic confession were broken into; but that is considered a primordial
and pre-political condition. So, many codes do not force a son to testify
against a father ; the family affection is considered a primordial condition.
The very state of society, for which it is worth living, is invaded, if the
correspondence is exposed to this sort of government burglary.
The argument is simply this. Man is destined to live in society, united
by converse and intercommunion ; this is a basis of humanity. If you
open letters, you seriously invade this primary condition. Men are indi-
viduals, and social beings, destined for civilization and united progress.
and the question is not whether they may be dispensed with, but how to
govern with them. Governments too frequently act as though the go-
vernment were the primary condition, and the remaining question only
was, how much may be spared by government to be left for society or
individuals. The opposite is the truth.
After this note had been published, the French court of cassation, "all
chambers united," decided in the last resort, that in the case of Coetlogon,
Flandin, and others, no illegal act had been committed by the prefect of
94 ON CIVIL LIBERTY
England, as may be supposed, has not always enjoyed
liberty of the press. It is a conquest of high civilization. 1 It
is, however, a remarkable fact, that England owed its transi-
tory but most stringent law of a censorship to her republican
government.
On September 20, 1647, 2 it was decreed by the republican
government in England that no book henceforth be printed
without previously being read and permitted by the public
censor, all privileges to the contrary notwithstanding. House
searches for prohibited books and presses should be made, and
the post-office would dispatch innocent books only. All places
where printing-presses may exist should be indicated by au-
thority. Printers, publishers, and authors were obliged to give
caution-money for their names. No one was permitted to
harbor a printer without permission, and no one permitted to
sell foreign books without permission. Book-itinerants and
ballad-singers were imprisoned and whipped. We are all ac-
quainted with Milton's beautiful and searching essay on the
liberty of the press against this censorship.
The reader who pays attention to the events of his own
days, will remember the law against the press, issued imme-
diately after the coup d'etat of Louis Napoleon, which puts
the sale of printing and lithographic presses, copying ma-
chines, as well as types, under police supervision, and which,
in one word, intercepts all public communion.
I suppose it will be hardly necessary to treat, in connection
with the liberty of communion, of the " liberty of silence," as
a French paper headed an article, when, soon after the coup
d'etat, it was intimated to a Paris paper, by the police, that
its total silence on political matters would not be looked upon
by government with favor, should the paper insist on con-
tinuing it.
It would be, however, a great mistake to suppose that govern-
the police, in opening letters, etc. etc. The decision is given in full in
the Courrier des Etats Unis, New York, December 12, 1853.
1 See Lieber's Letter to Hon. W. C. Preston, on International Copy-
right.
2 The same year, therefore, in which Charles I. was executed.
AND SELF-GOVERNMENT. 95
ments alone interfere with correspondence and free commu-
nion. Governments are bodies of men, and all bodies of men
act similarly under similar circumstances, if the power is
allowed them. All absolutism is the same. I have ever ob-
served, in all countries in which I have lived, that, if party
struggle rises to factious passion, the different parties endea-
vor to get hold of the letters of their adversaries. It is,
therefore, of the last importance, both that the secret of let-
ters and the freedom of all communion be legally protected as
much as possible, and that every true friend of liberty present
the importance of this right in the clearest possible manner
to his own mind.
7. The right of locomotion, or of free egress and regress,
as well as free motion within the country, is another important
individual right and element of liberty.
The strength of governments was generally considered, in
the last century, to consist in a large population, large amount
of money, that is, specie, within the country, and a large
army founded upon both. It was consistent, therefore, that
in countries in which individual rights went for little, and the
people were considered the mere substratum upon which the
state, that is, the government, was erected, emigration was
considered with a jealous eye, or wholly prohibited. Nor can
it be denied that emigration may present itself in a serious
aspect. So many people are leaving Ireland, that it is now
common, and not inappropriate, to speak of the Irish exodus ;
and it has been calculated, upon authentic data, both in Ger-
many and the United States, that for the last few years the
German emigrants have carried not far from fifteen millions
of Prussian dollars annually into the United States. 1 The
1 On the other hand, an immense amount of capital annually re-
turns, from successful emigrants in the United States, to Ireland and
Germany. Persons who have not paid attention to the subject, cannot
have any conception how many hard yet gladly earned pounds and tha-
lers are sent from our country to aged parents or toiling sisters and bro-
thers in Europe. A wide-spread and blessed process of affection is thus
all the time going on silent, gladdening, and full of beauty, like the
secret and beautifying process of spring. It is curious to observe, in
96 ON CIVIL LIBERTY
amount of emigrating capital may become greater even ; but
freemen believe that governments are for them, not they for
governments, and that it is a precious right of every one to
seek that spot on earth where he can best pursue the ends
of life, physical and mental, religious, political, and cultural. 1
If, under peculiar circumstances, a country should find itself
forced to prohibit emigration, the measure would, at any rate,
so far as this right goes, be an abridgment of liberty. We
can imagine many cases in which emigration should be stopped
by changing those circumstances which cause it, but none
in which it ought to be simply prohibited. The universal prin-
ciple of adhesiveness, so strong in all spheres of action, thought,
and affection, and which forms one of the elementary princi-
ples of society and continuity of civilization, is sufficiently
strong to keep people where they are, if they can remain ;
and if they leave an over-peopled country, or one in which
they cannot find work or a fair living, they become active
producers in the new country, and, consequently proportion-
ate consumers in the great market of the world, so that the
old country will reap its proportionate benefit, provided free
exchange be allowed by the latter.
The same applies with the capital removed along with emi-
gration. It becomes more productive, and mankind at large
are benefited by it.
Besides, it is but a part of the general question, shall or
shall not governments prohibit the efflux of money? It was
formerly considered one of the highest problems of states-
manship, even by rulers so wise as Frederic II. of Prussia,
to prevent money from flowing out of the country ; for wealth
connection with this emigration of coin from Europe, (for, a large por-
tion of the emigrating capital consists in European specie,) how the coins
are first carried to the distant west in the pouches of the emigrants, and
then are sent in large boxes from the western banks, into which they
naturally flow, to the New York banks, to be sold to the specie broker,
who sells them for shipment back to France, Germany, or England. The
Banks of New York, by T. S. Gibbons ; New York, 1859.
1 In the Prussian constitution of 1850, Tit. ii. Art. ii., it is said, "The
right to emigrate cannot be restricted by the state, except with respect
to the duty of military service."
AND SELF-GOVERNMENT. 97
was believed to consist in money. Experience has made us
wiser. We know that the freest action in this, as in so many
other cases, is also the most conducive to general prosperity.
It was stated in the journals of the day that Miss Jenny Lind
remitted five hundred thousand dollars from the United States
to Europe. Suppose this to be true, would we have been
benefited had she been forced to leave that sum in this coun-
try? 1 Or would we, upon the whole, profit by preventing five
million dollars, which, according to the statement of our
secretary of state, are now annually sent by our Irish emi-
grants to Ireland, from leaving our shores ? 2 Unquestionably
not. But this is not the place for further pursuing a question
of political economy.
The English provided for a free egress and regress as early
as in Magna Charta. As to the freest possible locomotion
within the country, I am aware that many persons accus-
tomed to Anglican liberty may consider my mentioning it as
part of civil liberty too minute. If they will direct their
attention to countries in which this liberty is not enjoyed in
its fullest extent, they will agree that I have good reason
1 The papers of September, 1853, reported that " the Silby estate, be-
longing to the Hon. Mrs. Petre, has been sold to Lord Londesborough
for 270,000. Mrs. Petre, whose property was left by her husband en-
tirely at her own disposal, has taken the veil in a nunnery in France,
which will of course receive the whole of her fortune."
This emigration of more than a million of dollars, and serving for the
purpose of a religious community not favored by the country whence it
emigrates, (not to speak of the actual droit d'Anbaine in France before
the revolution,) indicates a great advance of civilization, and would not
be allowed in several countries.
2 Hon. Edward Everett's dispatch to Mr. Crampton, on the Island of
Cuba, December 1, 1852. The London Spectator of December 17, 1853,
said :
"Not less than 2,972,000 was remitted from Irish emigrants in
America to their friends and relatives at home, in 1848, 1849, 1850, and
1851. It is estimated that if the remittances have continued at the same
rate, upwards of four millions must have been remitted iu the last six
years."
7
98 ON CIVIL LIBERTY.
for enumerating it. Passports are odious things to Americans
and Englishmen, and may they always be so. 1
1 The primordial right of locomotion and emigration has been dis-
cussed by me in Political Ethics, at considerable length. The state of
Mississippi declares in its bill of rights, that the right of emigration shall
never be infringed by law or authority. The English distaste of pass-
ports was severely tried when, after Orsini's attempt to assassinate Na-
poleon III., stringent passport regulations were adopted in France ; but
the English found them too irksome, (and the money they spend is so
acceptable to the continent,) that those police regulations were soon
relaxed in a very great degree. Napoleon III., when an exile, wrote on
the individual liberty in England, and called passports " that invention
of the Committee of Public Safety." See his works. The modern pass-
port was, doubtless, greatly developed in the first French revolution, but
not invented. The history of the passport, from the Roman Empire to
the modern railroad, which naturally interferes with its stringency, is an
interesting portion of the history of our race, but it belongs to what the
Germans have carved out as a separate branch under the name of Police
Science, (Polizei-Wissenschaft.)
CHAPTER X.
LIBERTY OF CONSCIENCE. PROPERTY. SUPREMACY OF
THE LAW.
8. LIBERTY of conscience, or, as it ought to be called more
properly, 1 the liberty of worship, is one of the primordial
rights of man, 2 and no system of liberty can be considered
comprehensive which does not include guarantees for the free
exercise of this right. It belongs to American liberty to
separate entirely the institution which has for its object the
support and diffusion of religion from the political government.
We have seen already what our constitution says on this point.
All state constitutions have similar provisions. They prohibit
government from founding or endowing churches, and from
demanding a religious qualification for any office or the
exercise of any right. They are not hostile to religion, for
we see that all the state governments direct or allow the bible
to be read in the public schools ; but they adhere strictly to
these two points: No worship shall be interfered with, either
directly by persecution, or indirectly by disqualifying members
of certain sects, or by favoring one sect above the others;
and no church shall be declared the church of the state, or
"established church;" nor shall the people be taxed by
government to support the clergy of all the churches, as is the
case in France.
1 Conscience lies beyond the reach of government. " Thoughts are
free," is an old German saying. The same must be said of feelings and
conscience. That which government, even the most despotic, can alone
interfere with, is the profession of religion, worship, and church govern-
ment.
2 See Primordial Rights in Political Ethics.
(99)
100 ON CIVIL LIBERTY
In England there is an established church, and religious
qualifications are required for certain offices and places, at
least in an indirect way. A member of parliament cannot
take his seat without taking a certain oath "upon the faith of
a Christian;" which, of course, excludes Jews. There is no
doubt, however, that this disqualification will soon be removed. 1
1 This disqualification has at length been removed, in 1858. The
words " upon the faith of a Christian" may be left out of the qualifying
oath by a non-christian. There are now, 1859, three Jews in the house
of commons.
Since the text, to which this note is appended, was written, the case
of the Madiai family has attracted the attention of all civilized nations
in the old and new world. The Madiai family, natives of Tuscany, had
become protestants, and used to read the bible. No offence has ever
been charged to them, except that they read the bible in the vernacular.
Their imprisonment and prosecution caused the formation of a Society
for Protecting the Eights of Conscience, in England, in July, 1857.
Archbishop Whately presided at the first meeting, and in giving the
scope of society, spoke of the topic in hand, with a degree of discrimina-
tion which entitles his remarks to be reproduced here. He said :
"We are entirely unconnected with conversion, except so far as con-
verts may be exposed to persecutions, for conscience sake. We enter
into no connection with any society for diffusing religious knowledge of
any kind. By rights, we understand not necessarily that every one is
right in the religion that he adopts, but that his neighbors have no right
to interfere with him. We merely maintain that a man has a right, not
necessarily a moral right, nor a right in point of judgment, but a civil
right, to worship God according to his own conscience, without suffering
any hardships at the hands of his neighbors for so doing. We limit
ourselves entirely to those descriptions of persecution in which the law
can give no relief. As for assaults and violence of any kind, where the
law provides and holds out a remedy, we leave all persons to seek that
remedy for themselves ; and we do not undertake to guard, or to remu-
nerate, or to compensate any persons who are exposed to obloquy, to
curses, denunciations of Divine vengeance uttered by men, to ridicule, or
to any sort of annoyance of that kind. They should be taught to bear
it and to support it with joy and satisfaction through Divine help, and
rejoicing that they are counted worthy to suffer in the good cause. But
when attempts are made to compel men to conform to what they do not
conscientiously believe, by the fear of starvation, by turning them out of
employment when they are honest and industrious laborers, by refusing
to buy and sell, or hold any intercourse with them, then I think it is, and
then only, that a society like this ought to come forward, and that all
AND SELF-GOVERNMENT. 101
Whether it will be done or not, we are nevertheless authorized
to say that liberty of conscience forms one of the elements of
Anglican liberty. It has not yet arrived at full maturity in
some portions of the Anglican race, but we can discern it in the
whole race, in whose modern history we find religious toleration
at an earlier date than in that of any other large portion of
mankind. Venice, and some minor states, found the economi-
cal and commercial benefit of toleration at an early period,
but England was the earliest country of any magnitude where
toleration, which precedes real religious liberty, was established.
While Louis XIV. of France, called the Great, "dragonaded"
the protestants on no other ground than that they would not
become catholics, a greater king, William III., declared, in
England, that "conscience is God's province." The catholics
were long treated with severity in England, but it was more on
a political ground, because the pope supported for a long time
the opponents to the ruling dynasty, than on purely religious
grounds.
There is a new religious zeal manifesting itself in all
branches of the Christian church. The catholic church seems
to be animated by a renewed spirit of activity, not dis-
similar to that which inspired it in the seventeenth century,
by which it regained much of the ground lost by the reforma-
tion, and which has been so well described by Mr. Ranke.
The protestants are not idle; they study, probe, preach, and
act with great zeal. May Providence grant that the Anglican
tribe, and all the members of the civilized race, may more and
more distinctly act upon the principle of religious liberty, and
not swerve from it, even under the most galling circumstances.
Calamitous consequences, of which very few may have any
conception at this moment, might easily follow.
As to that unhappy and most remarkable sect called the
Mormons, who have sprung up and consolidated themselves
persons, whatever religion they may be of, or whether they are of any re-
ligion at all or not, in a feeling of humanity and justice, ought to look
with a favorable eye on such a society as yours, provided it keep itself
within its own proper bounds."
102 ON CIVIL LIBERTY
within our country, and who doubtless may become trouble-
some when sufficiently numerous to call on us for admission
into the Union, I take it that the political trouble they may
give cannot arise from religious grounds. Whether they have
fallen back into Buddhism, making their god a perfectible
being, with parts and local dwelling, cannot become a direct
political question, however it may indirectly affect society in
all its parts. The potent questions which will offer great
difficulty will be, whether a Mormon state, with its "theo-
democratic" government, as they term it, can be called a
republic, in the sense in which our constitution guarantees it
to every member of the Union. It will then, probably for the
first time in history, become necessary legally to define what
a republic is. The other difficulty will arise out of the ques-
tion which every honest man will put to himself, can we admit
as a state a society of men who deny the very first principle,
not of our common law, not of Christian politics, not of modern
progress, but of our whole western civilization, as contra-
distinguished from oriental life of that whole civilization in
which we have our being, and which is the precious joint pro-
duct of Christianity and antiquity who disavow monogamy.
No one will now deny that the English parliament followed
too tardily the advice of those great statesmen who urged
long ago to abolish test oaths, and other religious impedi-
ments ; but to judge impartially, we must not forget that the
removal of disqualifications in countries enjoying a high
degree of liberty, is more difficult than in despotic countries,
where all beneath the despot live in one waste equality.
Liberty implies the enjoyment of important rights and high
privileges. To share them freely with others who until then
have not enjoyed them appears like losing part of them. It
is a universal psychologic law. Neither religion nor color
constitutes half the difference in many Asiatic states, which
they establish in many free countries. It must likewise be
remembered that liberty implies power, the authority of act-
ing ; consequently, an admission to equality in a free country
implies admission to power, and it is this which frequently
AND SELF-GOVERNMENT. 103
creates, justly or unjustly, the difficulty of perfect religious
equality in certain states of society.
The end, however, which is to be reached, and toward
which all liberty and political civilization tends, is perfect
liberty of conscience. s s/
9. One of the staunchest principles of civil liberty is the
firmest possible protection of individual property 1 acquired
or acquiring, produced and accumulated, or producing and
accumulating. We include, therefore, unrestrained action in
producing and exchanging, the prohibition of all unfair
monopolies, commercial freedom, and the guarantee that no
property shall be taken except in the course of law ; and the
principle that, in particular, the constant taking away of part
of property, called taxation, shall not take place, except by
the direct or indirect consent of the owner the tax-payer
and, moreover, that the power of government to take part of
the property, even with the consent of the payer, be granted
for short periods only, so that the taxes must be renewed, and
may be revised at brief intervals. The true protection of in-
dividual property demands likewise the exclusion of confisca-
tion. For, although confiscation as a punishment is to be
rejected on account of the undefined character of the punish-
ment, depending not upon itself but upon the fact whether
the punished person has any property, and how much, it is
likewise inadmissible on the ground that individual property
implies individual transmission, 2 which confiscation totally
destroys. It would perhaps not be wholly unjust to deprive an
individual of his property as a punishment for certain crimes,
1 It has been one of the main objects in my Essays on Labor and
Property, to show the necessity and justice of individual property, and
its direct connection with man's individuality, of which it is but the reflex
in the material world around him. Man suffers in individuality, there-
fore in liberty, in the degree in which absolutism, which is always of a
communistic nature, deprives him of the possession, enjoyment, produc-
tion, and exchange of individual property. The Essays treat of property
in a political, psychologic, and economical point of view.
2 The subject of individual inheritance has also been treated at length
in the Essays mentioned in the preceding note.
104 ON CIVIL LIBERTY
if we were to allow it to pass to his heirs. We do it in fact
when we imprison a man for life, and submit him to the regular
prison discipline, disallowing him any benefit of the property
he may possess ; but it is unjust to deprive his children or
other heirs of the individual property, not to speak of the
appetizing effect which confiscation of property has often
produced upon governments.
The English attainder and corruption of blood, so far as it
affects property, is hostile to this great principle of the utmost
protection of individual property, and has come down to the
present times from a period of semi-communism, when the
king was considered the primary owner of all land. Corrup-
tion of blood is distinctly abolished by our constitution.
Individual property is coexistent with government. In-
deed, if by government be understood not only the existence
of any authority, but rather the more regular and clearly
established governments of states, property exists long before
government, and is not its creature ; as values exist long before
money, and money long before coin, and coin before government
coin. We find, therefore, that the rightful and peaceful enjoy-
ment of individual property is not mentioned as a particular item
of civil liberty, as little as the institution of the family, except
when communistic 1 ideas have endangered it, or, in particular
1 I shall not have room to give a whole chapter to the subject of com-
munism, or rather a single chapter would be wholly insufficient on this in-
teresting subject, which, moreover, belongs to general political philosophy,
rather than to our branch. I shall mention, therefore, this only, that I use
in these pages the word communism in its common adaptation, meaning a
state of society in which individual property is abolished, or in which it
is the futile endeavor of the lawgiver to abolish it, such as hundreds of
attempts in ancient times, in the middle ages, and in modern epochs, in
Asia and in Europe have been made among the Spartans, the anabap-
tists, and French communists. I do not take here the term communism
in that philosophical sense, according to which every state, indeed every
society whatever, necessarily consists of the two elements, of individual-
ism and socialism. The grave error of the socialist is that he extends
the principle of socialism, correct in itself, to the sphere where individu-
alism or separatism, equally correct, ought to determine our actions.
The socialist is as mistaken an enthusiast as the individualist would be.
AND SELF-GOVERNMENT. 105
cases, when private property must be given up for the public
benefit, 1 and laws or constitutions settle that it shall not be
done except for equivalents given by the public through
government. 2
Our constitution goes farther. It distinctly enacts that " no
state shall pass any law impairing the obligation of contracts,"
which includes contracts with governments, and not only
common contracts, but rights conferred for equivalents. 3
The right of self-taxation has been mentioned as a guarantee
of private property, for, no matter what form taxation may
assume, it must always consist in the appropriation of private
property for public ends. Taxation has, however, another,
purely political and highly important meaning, and we shall
consider it under this aspect in another part of this work.
who, forgetting the element of socialism, should carry his principle to
the extreme of disjunctive egotism, and insist upon a dissolution of go-
vernment and a disavowal of the sovereignty of society in political mat-
ters. It is instructive to observe how, also, in this case, the extremes
meet ; for works have been actually published by socialists which wind
up with an entire denial of government, and an avowal of " individual
sovereignty."
1 See the constitution of the French Republic of 1848, in the ap-
pendix. It contains a paragraph acknowledging private property, the
family, etc. It was right to insert it, under the circumstances. If the
Spartans had ever reformed their government, and passed from their
socialism to individualism, they would have been justified in proclaiming
the sanctity of the family and the acknowledgment of private cookery,
however ludicrous this might be under other circumstances.
2 Points belonging to this subject and its primordial character, were
pronounced with clearness in the late pleadings in the French courts,
when it was endeavored to show, unfortunately in vain, that Louis Na-
poleon had no right, even as a dictator, to confiscate the private pro-
perty of the Orleans family, and that the courts were competent to restore
it to the lawful owners.
5 See Judge Story, in his Commentaries on the Constitution of the
United States, and his Opinion, as well as Chief Justice Marshall's in the
celebrated Dartmouth Case, 4 Wheaton R. 518, and also Mr. Webster's
Works for his argument in that case.
The English go much farther than ourselves, not indeed in principle,
but because they consider many rights, places, and privileges, as vested
property which we by no means consider as such.
106 ON CIVIL LIBERTY
Every single subject here mentioned, monopolies, 1 freedom
of trading, freedom of home production, freedom of exchange,
possession of property, taxation and confiscation each one
has a long history, full of struggle against error and govern-
ment interference, running through many centuries and even
a thousand years. On each a separate and instructive history
might be written. Each shows the continued course of
gradually, though very slowly, expanding freedom. Nor has
this history of development reached its close, although it has
attained to that period in which we acknowledge the highest
protection of individual property as an element of our free-
dom.
That the so-called repudiation it is always unfortunate and
suspicious when offences that have long received their proper
name, are stamped with a new and apparently innocent one ;
still worse it is when the error is elevated into a commendable
act; and Bacon is right when he says, Pessima enim res est
errorum apotheosis that repudiation is a violation of the
sacred principle we treat of, no one now will have the hardihood
to deny. Still it is true, that abroad it is almost universally
treated erroneously, as well in regard to its causes as to its
extent, the inferences drawn from it regarding republican
government, and the supposed novelty of the case. We could
give a long list of monarchical repudiation. But we do not
claim this as an excuse. The worst of all arguments is,
although in constant use, from the school-boy to princes,
presidents, and writers on national affairs, that things are
equally bad or worse with others. Right and truth, wrong and
falsehood remain forever what they are; and Mr. Webster
pointedly said at the time of repudiation, in the senate of the
United States: "You may repudiate, but that does not pay
your debts." Repudiation was, and remains, a serious wrong,
but its immorality does not authorize to draw wrong conclusions,
1 An act of parliament, under James I. (21 James I. i. 3) prohibited
all monopolies granted by the crown, after the courts had repeatedly,
even under Elizabeth, declared certain monopolies null and void.
AND SELF-GOVERNMENT. 107
and we totally deny the correctness of the assumed facts and
inferences drawn from them by Sir A. Alison. 1
1 Paragraph fifty-nine, chap. i. vol. i. of History of Europe from the
fall of Napoleon to the accession of Louis Philippe. Possibly an oppor-
tunity may offer itself some day to treat of this melancholy subject at
length and in all its details.
I cannot forbear, however, to copy a passage of Sir A. Alison, viz. : " The
principal states of the Union have, by common consent, repudiated their
state debts as soon as the storms of adversity blew ; and they have in
some instances resumed the payment of their interest only when the sale
of lands they had wrested from the Indians afforded them the means of
doing so, without recurring to the dreaded horrors of direct taxation"
and to add that there is not one fact in this whole passage. The prin-
cipal states did not repudiate ; the repudiation was not by common con-
sent ; no land has been wrested from the Indians and sold, for the benefit
of the states, and direct taxation exists in most states ; perhaps in all the
states to some extent. Many of those readers who have been my pupils
will remember that for a number of years I was in the habit of delivering
a course of lectures on Repudiation, in which, I trust, I showed no dispo-
sition to mince matters, but to repudiate the representative principle as
Sir Archibald does when treating of Repudiation ; and to present the
latter as a natural consequence of republicanism, transcends the bounds
of reason. What element in the English polity, we would ask, is it that
makes English credit so firm ? Is it the monarchical ? This cannot well
be, for many monarchs have more than loosely dealt with credit, public
funds, and even private property. I believe, on the contrary, that the
credit of England mainly rests on her representative, her republican prin-
ciple. I do not mean to say that people lend their money just because
she has a parliament. What I mean is that the reliance of the world on
the good faith of England in money matters, has been built up by her
parliamentary government, and would not have been built up without it.
The Republic of the United States of the Netherlands enjoyed great
credit, while the Regent of France, and his council of state, seriously de-
bated whether the " new government" was obliged to acknowledge the
debts of the defunct Louis XIV. One of the worst cases of repudiation
was exhibited in England long before the unhappy laxity became mani-
fest in our land. The Prince of Wales (George IV.) and two of his
brothers, the Dukes of York and Clarence, desired to escape paying a
loan of 3,600,000 guilders which they had made in Holland, through
the banker, Thomas Hammersly. When the bond holders came to
England to enforce payment, Sir Arthur Pigott, attorney-general of
the Duchy of Cornwall, acting for the Prince of Wales, stated in the
108 ON CIVIL LIBERTY
10. There can be no individual liberty where every citizen
is not subject to the law, and where he is subject to aught
else than the law that is public opinion organically passed
into public will. 1 This we call the supremacy of the law. 2
All subjective arbitrariness is contrary to freedom. The law
of a freeman is a general rule of action, having grown out of
the custom of the people, or having been laid down by the au-
thority empowered by the people to do so. A law must be a
rule which does not violate a superior law or civil principle, it
must be made before the case to which it is applied has
court that he had never heard of the bonds, which was absolutely untrue.
All London, and indeed all England, knew of it. The arguments were
worthy of any Mississippi repudiator, such as, the present bond holders
are not the original lenders ; war has broken out. Ultimately the Dutch
bond holders who were in England were arrested under the alien law and
put on board a vessel, where, English writers say, I cannot say with
what degree of truth, they perished, though none of the crew died.
Sir A. Alison says somewhere in his writings, that the richest men in
the city of New York do not dare to have stately fronts for their houses,
however costly the interior may be, from fear of displeasing the demo-
cracy. Truth and essential progress are never promoted by wrong or
false argument.
1 We shall presently say more on the all-important word Law ; but
for an extensive discussion of the subject I must refer the reader to the
Political Ethics.
2 It will hardly be necessary to state that the term supremacy of the
law, has a meaning only when by law we understand general and pre-
existing rules of action expressing public will. Whether the name of
law be given to personal decrees and arbitrary decisions, is not of the
smallest importance. Napoleon, at St. Helena, expressed his surprise
at having been called a despot, " I," said he, " who have always acted
by law !" This forcibly reminds us of a prominent French paper, The
Univers, which lately stated that it was decidedly in favor of represen-
tative government, and that it was only necessary to know what is under-
stood by representative government. The Univers so said the paper
itself understands by this term a legislative corps, which represents the
government. I have known, in an official capacity, a patient in a hos-
pital for the insane, who perseveringly maintained that the difference be-
tween him and me consisted solely in the name. " Suppose," he used to
say, " we patients vote that we are sane, and the out-door party is crazy?"
" Don't you see ?" he would add with a knowing look.
AND SELF-GOVERNMENT. 109
occurred (without which it cannot be mens sine affectu, as the
ancients called the law,) and it must be truly as well as plainly
published.
The citizen, therefore, ought not to be subject to ex post
facto laws, 1 to a "government by commissions," nor to
extraordinary courts 2 of justice, to a dispensing power in the
executive (so much insisted on by the Stuarts, and, indeed, by
all rulers who claim to rule by a higher law than the law
of the land,) or to mere "proclamations" of the crown or
executive, nor to the dictation of mobs, nor any people
who claim to be the people ; indeed, to no dictates of the
people except in its political, that is, in its organized and
organic capacity.
All the modern constitutions by which it is endeavored
to transplant Anglican liberty, declare that the citizen shall
be subject to his "natural courts" only. The charter of
Louis XVIII. prohibited cours prevolates. 3 It had become
very necessary to point out in the charter that every one
should be judged by his " natural court," because the extra-
ordinary courts had been a great grievance in former times,
and because Napoleon had introduced le jugement adminis-
1 Our constitution prohibits them.
- By extraordinary courts of justice are meant, in this connection, courts
of an extraordinary composition, not those that are simply directed to sit
at an unusual time. The difference between justice, that is, right dis-
tributed among men by lawful and regularly appointed judges on the one
hand, and the trials by commissioners on the other hand, is well pointed
out by an anecdote, such as Plutarch would not have disdained to give in
his writings. Montaign, grand-master of the household of Charles VI.,
was tried, tortured, and executed by Commissioners. He was buried in
the church of the Celestines, and when Francis I. came to see his tomb,
the king said, " This Montaign has been condemned by justice." " No,
sire," answered the simple monk, who guided the king, "he was con-
demned by Commissioners." Histoire du Parlement de Paris, Amster-
dam, 1769, ch. 4. Commissioners as judges form a " packed" court, do
not feel lasting responsibility, and, in cases of importance to the execu-
tive, act on the foregone conclusion almost as distinctly as the "judges"
of the Duke d'Enghien did. In this consists the danger of courts-mar-
tial, when established for the ordinary courts.
3 See the French charter in the appendix.
110 ON CIVIL LIBBRTY
tratif, although lettres de cachet remained abolished in his reign.
An administrative or executive judgment simply meant deci-
sions, imprisonment or other punishments, although the courts
had absolved the prisoner, or taking effect without the action of
any court. It is nothing less than plain police government.
The American Declaration of Independence has a passage
referring to the subject of " natural cpurts." It enumerates as
one of the grounds of justification for separating from
England, that the government has " transported us beyond
the seas to be tried for pretended offences."
All continental governments which were bent on defeating
the action of the new constitutions, even while they existed,
resorted to declaring large cities and entire districts in "a
state of siege," thus subjecting them to martial law. All
absolute governments, whether monarchical or democratic,
have ever found the regular course of justice inconvenient,
and made war upon the organic action of the law, which
proves its necessity as a guarantee of liberty.
It is obvious that, whatever wise provisions a constitution
may contain, nothing is gained if the power of declaring
martial law be left in the hands of the executive ; for declar-
ing martial law, or proclaiming a place or district in a state of
siege, simply means the suspension of the due course of law,
of the right of habeas corpus, of the common law, and of the
action of courts. The military commander places the prisoners
whom he chooses to withdraw from the ordinary courts before
courts-martial. There were many French departments in " a
state of siege" before the coup d'e'tat. After it, all France
may be said to have been so.
In England, when there is a rebellion or wide-spread dis-
order, threatening life and property, a regular act of parlia-
ment is passed, suspending the habeas corpus. The act states
the necessity or reasons, and the time of its duration. This
last point is of great importance. 1
1 The act by which martial law was declared in Ireland, during the
rebellion in 1798, can be seen in Tytler's Essay on Military Law, appen-
dix, No. 6. ' T copy this reference from an article, Martial Law, in Po-
litical Dictionary; London, 1846.
AND SELF-GOVERNMENT. HI
We have seen already under what circumstances our con-
stitution permits the suspension of the habeas corpus, and that
this cannot be done by the president alone, but by congress
only, need hardly be mentioned.
It has been necessary to mention here the supremacy of
the law as a peculiar guarantee of personal liberty. We shall
return to the subject, and consider it in its wider relations.
11. The preceding guarantee of the supremacy of the law
leads to a principle, which, so far as I know, it has never been
attempted to transplant from the soil inhabited by Anglican
people, and which nevertheless has been in our system of liberty
the natural production of a thorough government of law, as dis-
tinguished from a government of functionaries. It is so natural
to the Anglican race that few think of it as essentially import-
ant to civil liberty, and it is of such vital importance that none
who have studied the acts of government elsewhere, can help
recognizing it as an indispensable element of civil liberty.
It is this, that, on the one hand, every officer, however
high or low, remains personally answerable to the affected
person for the legality of the act he executes, no matter
whether his lawful superior has ordered it or not, and,
even, whether the executive officer had it in his power to
judge of the legality of the act he is ordered to do, or not ;
and that, on the other hand, every individual is authorized to
resist an unlawful act, whether executed by an otherwise
lawfully appointed officer or not. The resistance is made at
the resister's peril. In all other countries, obedience to the
officer is demanded in all cases, and redress can only take
place after previous obedience. 1 Occasionally, this principle
acts harshly upon the officer ; but we prefer this inconvenience
to the inroad which its abandonment would make in the
government of law. We will not submit to individual men,
but only to men who are, and when they are, the organs of
the law. 2 A coup d'etat, such as we have lately seen in
1 Extreme cases, as a matter of course, would be allowed to form ex-
ceptions.
2 I must again refer to the Political Ethics, chapter on Obedience to
the Law.
112 ON CIVIL LIBERTY
France, would not be feasible in a nation accustomed to this
principle. All the answer which the police officers gave to
men like General Cavaignac, who asked them whether they
were aware that they committed a high crime in arresting a
representative of the people, was, that they had orders from
their superior, and had nothing to do with the question of le-
gality. It is obvious how much this peculiar Anglican principle
heightens the importance of obedience to the officer, repre-
senting the law, and the law alone. Lawlessness in this, as in
all other cases, is peculiarly incompatible with the spirit of
Anglican freedom.
As an instance of the opposite to the French principle of
that huge institution called gendarmerie, the following simple
case may be taken :
A sheriff, provided with the proper warrant, has the right,
after request and denial, to open the house door, forcibly to
open it, if a third party has taken refuge in it, or sent his
goods there. " Every man's house is his castle," will not
protect any one but the bona fide dweller in it. Nevertheless,
the sheriff, provided with his legal warrant, does it at his own
peril ; for, if he break open the house, however well his suspi-
cion may be grounded, and neither the party nor the goods
sought for be there, the sheriff is a trespasser, and as such
answerable to the inhabitant of the house before the courts of
the land. This may be inconvenient in single cases. It may
be that the maxim which has been quoted has " been carried
as far as the true principles of political practice will warrant
perhaps beyond what in the scale of sound reason and good
policy they will warrant." 1 I doubt it, whatever the inconve-
nience in single cases may be. All law is inconvenient in some
cases ; but even if this opinion were founded, how august, on
the other hand, appears the law I do not mean a single sta-'
tute, but the whole self-evolving system of a common law of
the land that errs on the side of individual liberty against
the public power and the united weight of government !
1 Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's
L3gal Maxims.
AND SELF-GOVERNMENT. 113
This Anglican principle might be supposed by those who are
not familiar with it, that fear of resolute action in the officer
would be the consequence. But this is not the case, as expe-
rience in England and the United States sufficiently proves.
When magistrates and officers, who according to their sphere
of action ought not to be elective, are made elective, timidity
or time-serving encroach indeed upon the resolute performance
of the officer's duty ; but this has nothing to do with the principle
here treated. Nor is it denied that exceptions may take place.
A police officer lately stated in open court in London, when
asked why he had not performed a certain act clearly lying
within the sphere of his duty, that it was so difficult for him to
know what was lawful for him to do, according to the opinion
of the magistrate, that he had preferred not to act. No ma-
chinery works without occasional friction. Compare with this
the ruthless European continental police, and chose. The reader
will find at the end of the foot-note appended to this page, an
amusing illustration of the fact that monarchical absolutism does
not necessarily give freedom or boldness of action to officers. 1
1 The very opposite to the Anglican principle, that each officer re-
mains responsible for the legality of his own acts, prevails in China and
Japan, and probably in all thoroughly systematized Asiatic despotisms.
The superior officer is punished for the offence and even for the misfor-
tune of the inferior, or for the accident which may have befallen the latter.
The blows with the bamboo, which in China go down from the superior
through many grades to the inferior, are well known. Before the late
opening of the Japanese ports to the Americans and Europeans, a Chris-
tian vessel was driven on the shores of Japan. The governor ripped
open his belly, and the viceroy, in whose province the wreck had hap-
pened, was imprisoned for one hundred days, although he was at the time
a hundred miles from the place ot the disaster. There is also, however,
in these cases, to be taken into consideration the confusion of moral
laws, and physical laws, and fate, which pervades the whole Chinese code,
the ethics of Japan, the moral code of all early nations, and which we
find in the early mythology of all nations. The earliest period of Greek
history and mythology furnishes us with many illustrations.
Mr. King, in his Notes of the Voyage of the Morrison, New York,
1839, gives the following anecdote : " We had inquired of the Japanese
how their officers were to be distinguished; whether they wore any
8
114 ON CIVIL LIBERTY
The reader has seen from the passage on warrants, which I
gave in a preceding part of this work, how far this principle
is carried in the case of resisting an officer, even to the killing
him, if his warrant be not wholly correct. Another proof of
the uniform acknowledgment of this principle and essential
pillar of civil liberty, is this, that when a British minister ob-
tains an act of indemnity, which is an act of impunity for
certain illegal acts, which, nevertheless, necessity demanded,
the act of indemnity is never for him alone, but it expresses
that the act shall also cover what the inferior officers have
done by the direction of the minister in the premises. 1
In conclusion, I would remark that it is wholly indifferent
badges besides the ever-famous ' two sabres.' The answer was. If you
see a man come on board that trembles very much, he is a mandarine."
The student must take care not to consider the fining of companies for
want of caution, skill, or honesty in the persons or officers employed by
them, (now so common in consequence of railway accidents,) as invali-
dating the principle laid down in the text.
1 For instance, in the scarcity of grain in the year 1766, Chatham pro-
hibited exportation of grain. When parliament met, he read a passage
from Locke, to show that what he had done was not legal yet right. In-
demnity was passed for him and those who had acted under him. In
1818, ministers asked and obtained indemnity for the suspension of
habeas corpus, for themselves and magistrates under them. Many
other instances might be given. See Lieber's Legal and Political Her-
meneutics, note to page 79. Acts of indemnity cannot be passed with
us, because we have a constitution of which the legislature itself is but
the creature, and we cannot pass ex post facto laws. All that remains for
us to do in cases of absolute necessity or transcendent utility is to pass
over the occurrence in silence ; or congress may show its concurrence
by aiding in the act. This was the case when Mr. Jefferson purchased
the mouth of the Mississippi, i.e. the territory of Louisiana. Still,
congress cannot make the act constitutional ; though the silence of con-
gress, or the countenance given by it to an act, give it such apparent
legality, that we find in the present time (1859) many men calling
themselves adherents to the strictest interpretation of the constitution,
and insisting on liberal interpretation, urging the purchase of the island
of Cuba, as if the constitution, which itself declares that it permits no-
thing but what it distinctly and positively grants, had allowed the pur-
chase of foreign territory.
AND SELF-GOVERNMENT. 115
who gives the order. If it be illegal, the person who executes
it remains responsible for the act, although the president or
the king should have ordered it, or the oifending person should
be a soldier obeying his commander. It is a stern law, but it
is a sacred principle, a strict government of law cannot dis-
pense with it, and it has worked well.
CHAPTER XL
QUARTERING SOLDIERS. THE ARMY.
12. GOVERNMENTS, if not very closely hedged in, have it
in their power to worry citizens into submission by many indi-
rect methods. One of these, frequently resorted to since the
introduction of standing armies, is, that soldiers are billeted
with the disaffected citizens. An insolent soldiery, supported
by the executive, find a thousand ways of annoying, insult ng,
and ruining the family with whom they are quartered. It has
been deemed necessary, therefore, specially to prohibit the
quartering of soldiers with citizens, as an important guarantee
of civil liberty. The English bill of rights, "declaring the
rights and liberties of the subject," of 1688, enumerates in
the preamble, as one of the proofs that James II. " did endea-
vor to subvert and extirpate" . . . "the laws and liberties
of this kingdom," his "raising and keeping a standing army
within the kingdom in time of peace, without consent of par-
liament, and quartering soldiers contrary to law." It is, in
England, therefore, a high offence to quarter soldiers without
consent of parliament; and the Constitution of the United
States ordains that " no soldier shall in time of peace be
quartered in any house without the consent of the owner, nor
in time of war, but in a manner to be prescribed by law."
The framers of the constitution, it will be observed, were very
exact in drawing up this paragraph.
Persons not versed in the history of civil liberty and of
progressive absolutism, might be surprised at this singling out
of quartering soldiers in documents of such elevated charac-
ter and condensed national demands as the Bill of Rights
and the American Constitution are; but the "dragonades" of
(116)
ON CIVIL LIBERTY. 117
Louis XIV. in France, of James II. in Scotland, and those of
more recent and present date in certain countries, furnish suf-
ficient justification for this specific guarantee.
13. The preceding safeguard, although justly pointed out
separately, is still only part of the general one that the forces
must be strictly submitted to the law. The navy cannot be,
in its nature, so formidable an instrument in the hands of the
executive as the army. It cannot be brought to bear upon the
people; it is not centralized in its character, and it cannot
surround the ruler. There are many other reasons why the
navy, the floating bulwarks of a nation, has always shown an
inherent affinity with the popular element, and why free nations
only can have efficient navies or merchant fleets, as a distin-
guished statesman of the United States 1 has observed.
It is far different with the land forces. Ever since standing
armies have been established, it has been necessary, in various
ways, to prevent the army from becoming independent of
the legislature. There is no liberty, for one who is bred in
the Anglican school, where there is not a perfect submission
of the army to the legislature of the people. We hold it to
be necessary, therefore, to make but brief appropriations for
the army. The King of England cannot raise an army, or
any part of it, without act of parliament ; 2 the army-estimates
are passed for one year only, so that, were parliament to refuse
appropriations, after a twelvemonth the army would be dis-
solved. The mutiny-bill, by which power is given to the king
to hold courts-martial for certain offences in the army, is like-
wise passed for a year only ; so that, without repassing it,
the crown would have no power even to keep up military
discipline.
1 Mr. Poinsott.
2 The guards of Charles II. were declared anti-constitutional, and the
army of James II. was one of the evidences by which he was presumed
to have abdicated ; that is, in other words, one of his breaches of the
fundamental law of the land. A new sanction was given to this princi-
ple in the sixth article of the Bill of Rights, which runs thus : A stand-
ing army, without the consent of parliament, is against law.
118 ON CIVIL LIBERTY
The Constitution of the United States makes the president,
indeed, commander-in-chief, but he cannot enlist a man, or pay
a dollar for his support, without the previous appropriation by
congress, to which the constitution gives "power to make
rules for the government and regulation of the land and naval
forces," and to which it denies the authority of making any
appropriation for the support of the national forces for a longer
term than two years.
The importance of this dependence of the army upon the
civil power has been felt by all parties. While the people are
bent on submitting the army to the legislature, the govern-
ments, which in the late struggles were anxious to grant as
little liberty as possible, always endeavored to exclude the
army from the obligation of taking the constitutional oath.
Constitutional oaths, like other political oaths, are indeed no
firm guarantee in times of civil disturbance; but where cir-
cumstances are such that people must start in the career of
freedom with an enacted constitution, it is natural and neces-
sary that the army should take the oath of fidelity to the
fundamental law, like any other persons employed in public
service, especially where the oath of allegiance to the monarch
continues. The oath, when taken, we have already admitted,
does not furnish any great security ; but in this, as in so many
other cases, the negative assumes a very great and distinct
importance, although the positive may be destitute of any
direct weight. The refusal of this oath shows distinctly that
the executive does not intend frankly to enter on the path of
civil freedom. This was lately the case in Prussia, when it was
the endeavor of the people to establish constitutional liberty.
The Declaration of Independence says : " He has kept
among us in times of peace standing armies without the con-
sent of our legislatures " It is enumerated as a radical
grievance, plain and palpable to every Anglican mind. Im-
mediately after, the declaration significantly adds : " He has
affected to render the military independent of, and superior to,
the civil power." This "affected" is striking. The attempt
of doing it, though the term affected indicates the want of
AND SELF-GOVERNMENT. 119
success, is counted as a grievance sufficient to warrant, amono-
others, an extinction of allegiance. Of the twenty-seven
grievances enumerated in the declaration as justification for a
revolution, three relate to the army. 1
Dr. Samuel Johnson, not biased, as the reader well knows,
in favor of popular liberties, nevertheless showed that he was
bred in England, when he speaks of " the greatest of political
evils the necessity of ruling by immediate force." 2 There
is, however, a greater evil still the ruling by immediate force
when it is not necessary or against the people.
Standing armies are not only dangerous to civil liberty be-
cause directly depending upon the executive. They have the
additional evil effect that they infuse into the whole nation
especially when they are national armies, so that the old sol-
diers return continually to the people a spirit directly oppo-
site to that which ought to be the general spirit of a free peo-
ple devoted to self-government. A nation of freemen stands
in need of a pervading spirit of obedience to the laws; an
army teaches and must teach a spirit of prompt obedience to
orders. Habits of disobedience and of contempt for the citi-
zen are produced, and a view of government is induced which
is contrary to liberty, self-reliance, self-government. Com-
mand ought to rule in an army ; self-development of law and
self-sustaining order ought to pervade a free people. A Ger-
man king, in one of his throne speeches, when a liberal spirit
had already manifested itself in that country, said : " The will
of one must ultimately rule in the government, even as it is in
the camp." This shows exactly what we mean. The entire
state, with its jural and civic character, is compared to a
camp, and ruinous inferences are drawn from the com-
parison.
1 A remarkable debate took place in the British commons, in April,
1856, when Mr. Cowan brought under the notice of the house the
billeting system pursued in Scotland, according to which " militia and
troops of the line are billeted upon private houses in Scotland."
an intolerable grievance." Redress was obtained.
2 Considerations on the Corn Laws, by Dr. Samuel Johnson.
120 ON CIVIL LIBERTY
The officers of a large army are in the habit of contemptu-
ously speaking of the "babbling lawyers." Les le'gistes have
always been spoken of by the French officers in the same tone
as "those lawyers" were talked of by Strafford and Laud.
Where the people worship the army an opinion is engendered
as if really courage in battle were the highest phase of
humanity ; and the army, in turn, more than aught else, leads
to the worship of one man so detrimental to liberty. All
debate is in common times odious to the soldiers. They
habitually ridicule parliamentary debates of long duration.
Act, act, is their cry, which in that case means: Command
and obey are the two poles round which public life ought to
turn. A man who has been a soldier himself, and has seen
the inspiring and rallying effect which a distinctive uniform
may have in battle the desire not to disgrace the coat, is not
likely to fall in with the sweeping denunciations of the uniform,
now frequently uttered by the "peacemen;" but it is true
that the uniform, if constantly worn, and if the army is large,
as on the continent of Europe, greatly aids in separating the
army from the people, and in increasing that alienating esprit
de corps which ought not to exist where the people value their
liberty. Modern despotism carefully fosters this spirit of
separation, because it relies mainly on the standing army.
The insolence of the officers of Napoleon I. rose to a frightful
degree, even in France itself; and many startling events have
lately occurred in that country, showing how far Napoleon III.
indulges his officers in insulting and maltreating the citizen. 1
No security whatever arises from the fact that the army is
"democratic" in its character. On the contrary, the danger is
only the greater, because it makes the army apparently a part
of the people; the people themselves look to it for one of the
careers in which they may expect promotion, (not quite unlike
the church in the middle ages,) while, in spite of all this, the
army becomes a secluded caste, essentially opposed to the
aspirations of the people. No better illustration is afforded
I write at the beginning of 1859.
AND SELF-GOVERNMENT. 121
in history, of this important fact, than by the present state
of things in France.
Nor is the case better, when the army is the ruling body,
and its officers belong exclusively to the country nobility,
in a country where every son of a nobleman is likewise
noble, and a large, poor nobility is the consequence. A
numerous and poor nobility is one of the most injurious and
ruinous things in a state. It leads infallibly to that spirit
which tries to make up by arrogance what it does not possess
in wealth or substance, which considers the state as an institu-
tion made for the provision of the poor noblemen, and dis-
regards the true and the high interests of the nation a state
of things which revealed itself, for Prussia, in the terrible
disaster at Jena, in 1806, and which has received in that and
other German countries, of late, the distinct appellation of
Junkerthum.
Standing armies, therefore, wherever necessary and they
are necessary at present, as well as far preferable to the
medieval militia ought to be as small as possible, and com-
pletely dependent on the legislature for their existence. Such
standing armies as we see in the different countries of the
European continent are wholly incompatible with civil liberty,
by their spirit, number and cost.
A perfect dependence of the forces, however, requires
more than short appropriations, and limited authority of the
executive over them. It is further necessary because they
are under strict discipline, and therefore under a strong in-
fluence of the executive that these forces, and especially the
army, be not allowed to become deliberative bodies, and that
they be not allowed to vote as military bodies. Wherever
these guarantees have been disregarded, liberty has fallen.
These are rules of importance at all times, but especially in
countries where, unfortunately, very large standing armies
exist. In France, the army consists of half a million, yet
universal suffrage gave it the right to vote, and the army as
well as the navy did vote to justify the second of December, as
well as to make Louis Napoleon Bonaparte emperor. This may
122 ON CIVIL LIBERTY
be in harmony with French "equality;" it may be democratic,
if this term be taken in the sense in which it is wholly uncon-
nected with liberty; all that we people with whom liberty is
more than a theory, or something aesthetically longed for, and
who learn liberty as the artisan learns his craft, by handling
it all that we know is, that it is not liberty; that it is
directly destructive of it. 1
It was formerly the belief that standing armies were incom-
patible with liberty, and a very small one was granted to the
King of England with much reluctance; and in France we
have a gigantic standing army, itself incompatible with liberty,
for whom in addition the right of voting is claimed.
The Bill of Rights, and our own Declaration of Independ-
ence, show how large a place the army occupied in the mipds
of the patriotic citizens and statesmen who drew up those
historic documents, the reasons they had to mention it re-
peatedly, and of erecting fences against it.
Military bodies ought not to be allowed even the right of
petitioning, as bodies. History fully proves the danger, that
must be guarded against. 2 English history, as well as that of
other nations, furnishes us with instructive instances.
A wise medium is necessary ; for an army without thorough
1 The French soldiers vote at present, whenever universal suffrage is
appealed to not with the citizens, but for themselves, and the way in
which this military voting generally takes place is very remarkable.
1 I do not feel authorized to say that the Anglicans consider it an
elementary guarantee of liberty not to be subjected to the obligation of
serving in the army, but certain it is that as matters now stand, and as
our feelings now are, we should not consider it compatible with indi-
vidual liberty ; indeed, it woul.d be considered as intolerable oppression,
if we were forced to spend part of our lives in the standing army. It
would not be tolerated. The feeling would be as strong against the
French system of conscription, which drafts by lot a certain number of
young men for the army, and permits those who have been drafted to
furnish substitutes, as against the Prussian system, which obliges every
one, from the highest to the lowest, to serve a certain time in the stand-
ing army, with the exception only of a few " mediatized princes." The
Anglicans, therefore, may be said to be at present unequivocally in favor
of enlisted standing armies, where standing armies are necessary.
AND SELF-GOVERXMEXT. 123
unity is useless ; indeed, worse than useless. It produces a
thousand evils without any good ; while it must always be con-
sidered as a distinct command of Civil Liberty, that a well-
organized army is of itself a subject of great danger. To
make an efficient army, in modern times, harmonize with all
the demands of substantial civil liberty is doubtless one of the
problems of our race and age, and one most difficult to solve
forming, perhaps, with the problem of carrying out a high de-
gree of individual liberty in large and densely peopled cities,
the two most difficult problems of high, patriotic and substantial
statesmanship.
14. Akin to the last-mentioned guarantee, is that which
secures to every citizen the right of possessing and bearing
arms. Our constitution says : " The right of the people to
keep and bear arms shall not be infringed upon ;" and the
Bill of Rights secured this right to every protestant. It extends
now to every English subject. It will hardly be necessary to
add, that laws prohibiting secret weapons, or those which
necessarily endanger the lives of the citizens, are no infringe-
ment of liberty ; on the contrary, liberty resting necessarily
on law, and a lawful, that is, peaceful state of the citizens,
liberty itself requires the suppression of a return to force and
violence among the citizens a fact by no means sufficiently
weighed in recent times in America.
Whenever attempts at establishing liberty have lately been
made on the continent of Europe, a general military organiza-
tion of the people, or "national guards," has been deemed
necessary, but we cannot point them out as characteristics of
Anglican liberty.
CHAPTER XII.
PETITION. ASSOCIATION.
15. WE pass over to the great right of petitioning, so
jealously suppressed wherever absolute power rules or desires
to establish itself, so distinctly contended for by the English
in their revolution, and so positively acknowledged by our con-
stitution.
An American statesman of great mark has spoken lightly
of the right of petition in a country in which the citizens are
so fully represented as with us ; J but this is an error. It is a
right which can be abused, like any other right, and which in
the United States is so far abused as to deprive the petition of
weight and importance. It is nevertheless a sacred right
which in difficult times shows itself in its full magnitude, fre-
quently serves as a safety-valve, if judiciously treated by the
recipients, 2 and may give to the representatives or other bodies
the most valuable information. It may right many a wrong,
and the privation of it would at once be felt by every freeman
as a degradation. The right of petitioning is indeed a neces-
sary consequence of the right of free speech and deliberation,
a simple, primitive and natural right. As a privilege it is not
even denied the creature in addressing the deity. It is so
1 It was stated by him that the right of petition was of essential value
only in a monarchy, against the encroachments of the crown. But this
whole view was unquestionably a confined one, and caused by irritation
against a peculiar class of persevering petitioners.
2 There is no more striking instance on record, so far as our knowledge
goes, than the formidable petition of the chartists in 1848, and the calm
respect with which this threatening document was received by the com-
mons, after a speech full of dignity and manly acknowledgment of the
people by Lord Morpeth, now Earl of Carlisle.
(124)
ON CIVIL LIBERTY. 125
natural a right, in all spheres where there are superiors and
inferiors, that its special acknowledgment in charters or by-laws
would be surprising, had not ample experience shown the ne-
cessity of expressing it. 1
Where the government is founded on the parental principle,
or where the despot appears as an earthly providence, the pe-
tition of individuals plays, naturally, an important part, so
1 The discussion of petitions in the house of commons seems to have
undergone a marked change, as will appear from the following remarks
of Lord Brougham, which he made in the house of lords, in June 1853,
when the extension of the time of the income tax was under debate.
Lord Brougham said that he did not expect that the income tax would
expire in 1860. He recalled the circumstances under which the old in-
come tax was repealed, in defiance of the government of that day ; through
the instrumentality of nightly discussions on petitions a, popular privi-
lege no longer allowed in the house of commons.
" In 1806, when the income tax was 10 per cent., it was imposed till
the end of the war, and no longer. The war ended in 1814, but it broke
out again in 1815 ; and after its final termination a great fight against
the continuance of the tax took place in the house of commons. It had
been said that the present income tax would not be abandoned in 1860 ;
and he believed that the campaign which took place in parliament in
1816 could not be fought again. How was that campaign conducted ?
By means of petitions. For five or six weeks, from four o'clock in the
afternoon till two or three o'clock in the morning, petition after petition
was presented, and each petition was debated. If an account was given
of the proceedings of the five or six weeks during which that campaign
against the income tax was fought, it would describe one of the most
extraordinary scenes ever witnessed within the walls of the house of
commons, and a resistance which was perfectly successful. He might
mention one incident which occurred during those discussions. After
the fight had continued some three weeks or more, one night about
eleven or twelve o'clock, a question was put from the chair about bring-
ing up the petitions ; and all the members on one bench who might
have been supposed to be exhausted by the long sitting rose in
competition with each other to catch, as it was called, the speaker's
eye ; and the gallantry of those men in standing by their colors under
such circumstances so struck the house that they were hailed with a
general cheer of applause. He did not think, however, that in 1860, un-
less a great change took place elsewhere, the same campaign and stand
against the income tax would be possible."
126 ON CIVIL LIBERTY
long as it docs not become either dangerous or troublesome,
or unwelcome to the officers near the person of the monarch.
The Emperor Nicholas of Russia, was often spoken to in
the streets by petitioners; while, on the other hand, we re-
member a royal decree in Prussia, published about thirty
years ago, which directed that petitions must no longer be
thrust upon the monarch personally. Under Frederic the
Great, again, it was a common thing for petitioners to
attract the king's attention by holding the petition above the
heads of the crowd, when he would send an aid to take it. In
China the right of petitioning the monarch is symbolically
acknowledged, by the drum or gong at the palace gate, which
the petitioner beats when he drops the petition into the
receiving box. But the Chinese doubtless think and feel
what the Russians express in the significant saying : " God
lives high, and the emperor far." The missionary Hue
informs us that popular meetings, where petitions are adopted
or dismissed, are not rare in China. 1
The political philosopher in treating of this subject must
distinguish between petitions to the executive, (and as to peti-
tions for pardon, which have become a most serious evil in the
United States, the reader is referred to the paper on par-
dons in the appendix ;) petitions of the army, which history
amply teaches, must be absolutely interdicted ; we need only
remind the reader of the English history, and that of France ;
and, lastly, petitions to the legislature. As to the latter, it
is all-important for the cause of civil liberty, that is, the free-
dom of the people in earnest and in reality, that the petition,
whatever demonstration of moral power or public opinion it
may be, be unaccompanied by physical demonstration of
crowds, armed or unarmed, in the legislative halls or outside.
Indeed, they cease to be petitions and become physical threats
1 It would be a grave error indeed, to conclude, from this fact, or
from the general democratic character of the Chinese system, that there
is liberty in China a conclnsion as hasty as it would be to infer that free-
dom exists in France because the empire declares itself to be founded on
universal suffrage.
AND SELF-GOVERNMENT. 127
or coercion. The history of the French revolution is almost
one continued commentary on this position. The whole
meaning of a legislature, as a necessary element of liberty,
is that it be free, and it ceases to be free, so soon as crowds
threaten it.
We maintain that the right of petitioning is important, and
for this very reason it must neither be treated lightly, on the
part of the petitioners, nor wrenched from its meaning and be
changed into coercing threat. The petition in free states is
an institution, and not an incident as in the despotic govern-
ment. Resorted to as one of the civil agents by a free people,
its distinct uses lie in its direct effect, in inciting and
awakening public attention ; in keeping alive an important
idea, although it may not lead to immediate action ; in
countenancing those who desire to act and to be supported ;
in showing public opinion concerning some distinct point; in
serving as a safety-valve in times of public excitement, and in
being a substitute for unorganized and unreasoning crowds.
Its dangers are the dangers of all agents whatever its abuses,
and in the wide-spread weakness of men, which induces them
inconsiderately to put down their names, rather than refuse
the signature.
16. Closely connected with the right just mentioned is the
right of citizens peaceably to meet and to take public matters
into consideration, and
17. To organize themselves into associations, whether for
political, religious, social, scientific, industrial, commercial or
cultural purposes. That this right can become dangerous, and
that laws are frequently necessary to protect society against
abuse, every one knows perfectly well who has the least
knowledge of the French clubs in the first revolution. But it
is with rights, in our political relations, as with the principles
of our physical and mental organization the more elementary
and indispensable they are, the more dangerous they become,
if not guided by reason. Attempts to suppress their action
lead to mischief and misery. What has been more abused
than private and traditional judgment in all the spheres of
123 ON CIVIL LIBERTY
thought and taste ? Yet both are necessary. What principle
of our nature has led, and is daily leading, to more vice and
crime than that on which the propagation of our species and
the formation of the family depend, 1 or that which indicates
by thirst, the necessity of refreshing the exhausted body?
Shall the free sale of cutlery be interfered with, because mur-
ders are committed with knives and hatchets ?
The associative principle is an element of progress, protec-
tion, and efficient activity. The freer a nation, the more de-
veloped we find it in larger or smaller spheres ; and the more
despotic a government is, the more actively it suppresses all
associations. The Roman emperors did not even look with favor
upon the associations of handicrafts. In modern times no in-
stances of the power which associations may wield, and of the
full extent which a free country may safely allow to their ope-
rations, seem to be more striking than those of the Anti-Corn-
Law League in England, which, by gigantic exertions, ulti-
mately carried free trade in corn against the strongest and
most privileged body of land-owners that has probably ever
existed, either in modern or ancient times ; 2 and, in our own
country, the Colonization Society, a private society, planting
a new state which will be of great influence in the spreading
cause of civilization a society which, according to the Libe-
rian declaration of independence, " has nobly and in perfect
faith redeemed its pledges." In every country, except in the
United States and in England, the cry would have been, Im-
1 The so-called Shakers endeavor to extirpate this principle, and fur-
nish us with an illustration of the evils arising from the endeavor.
2 A careful study of the whole history of this remarkable association,
which in no state of the European continent would have been allowed to
rise and expand, is recommended to every student of civil liberty. It is
instructive as an instance of perseverance ; of an activity the most multi-
farious, and an organization the most extensive ; of combined talent and
shrewd adaptation of the means to the end ; and, which is always of
equal importance, of a proper conception of the end according to the
means at our disposal, without which it is impossible to do that which
Cicero so highly praised in Brutus, when he said, Quid vult valde vult.
AND SELF-GOVERNMENT. 129
perium in imperio, and both would have been speedily put
down.
We may also mention our extensive churches, or the Law
Amendment Association in England a society, which, so far
as we can judge at this distance, has already produced most
beneficial effects upon English legislation, and which in every
other country, occupied by our race, except in the United States,
would be stigmatized as an imperium in imperio full of assump-
tion. There is nothing that more forcibly strikes a person
arriving for the first time from the European continent, either
in the United States or in England, than the thousandfold
evidences of an all-pervading associative spirit in all moral and
practical spheres, from the almost universal commercial co-
partnerships and associations, the "exchanges" of artisans,
and banks, to those unofficial yet national associations which
rise to real grandeur. Strike out from England or America
this feature and principle, and they are no longer the same
self-relying, energetic, indomitably active people. The spirit
of self-government would be gone. In France, an opposite
spirit prevails. Not only does the government believe that it
must control everything, but the people themselves seem hardly
ever to believe in success until the government has made the
undertaking its own. 1
1 I cannot forbear mentioning here one of those occurrences, which,
although apparently trivial, nevertheless show the constant action of a
great principle, as the leaf of a tree reveals to the philosopher, the opera-
tion of the vastest elements in nature. At 'a meeting of the Royal Aca-
demy at London in 1852, at which the ministers were present, the pre-
mier, Lord Aberdeen, said that " as a fact full of hope, he remarked that
for several years the public, in the appreciation of art, had outstripped
the government and the parliament itself."
The chief executive officer considers it a fact full of hope that the peo-
ple have outstripped, in interest and action, the government and parlia-
ment. How different would a similar case have presented itself in any
of the continental countries !
CHAPTER XIII.
PUBLICITY.
18. WE now approach those guarantees of liberty which
relate more especially to the government of a free country,
and the character of its polity. The first of all we have to
mention under this head is publicity of public business. This
implies the publicity of legislatures and judicial courts, as well
as of all minor transactions that can in their nature be trans-
acted publicly, and also the publication of all important docu-
ments and reports, treaties, and whatever else can interest the
people at large. It further implies the perfect freedom with
which reporters may publish the transactions of public bodies. 1
Without the latter, the admission of the public would hardly
amount in our days to any publicity at all. We do not assem-
1 In the year 1857 the following case was decided in the court of com-
mon pleas at Columbia, S. C., iii favor of the plaintiff. The city council
held, in 1855, a public meeting. The editor of one of the city papers
being present, was asked by the mayor whether he had come to take
notes. The mayor being answered in the affirmative, ordered the chief
police officer to turn the editor out of the room, declaring at the time
that he acted on the strength of a resolution of the city council. At a
later period this procedure was defended on the ground that the city ap-
points a paper to give, officially, all the transactions of the board. Robert
W. Gibbes vs. Edward J. Arthur and John Burdell. This novel case
was reported with great care, and published with all the arguments, at
Columbia, S. C., in 1857, under the title, Rights of Corporations and Re-
porters. The public owes thanks to the plaintiff for having perseveringly
pursued this surprising case, the first of the kind, it would appear. The
pamphlet contains letters of nearly thirty American mayors, testifying
that reporters cannot be denied admission to the deliberations of the
councils of their cities, although there be an appointed printer to the
board.
(130)
ON CIVIL LIBERTY. 131
ble in the markets as the people of antiquity did. The millions
depending upon public information, in our national states,
could not meet in the market, as was possible in the ancient
city-states, even if we had not a representative government.
The public journals are in some respects to modern freemen
what the agora was to the Athenian, the forum to the Roman.
A modern free city-state can be imagined without a public press ;
a modern free country cannot ; although we must never forget
the gigantic, and therefore dangerous power which, under cer-
tain circumstances, a single public journal may obtain, and,
consequently, ought to be counteracted by the means which
lie in the publicity and freedom of the press itself.
Publicity, in connection with civil liberty, means publicity in
the transaction of the business of the public, in all branches
publicity in the great process by which public opinion passes
over into public will, which is legislation ; and publicity in the
elaboration of the opinion of the public, as well as in the
process of ascertaining or enouncing it by elections. Hence
the radical error of secret political societies in free countries.
They are intrinsically hostile to liberty.
Important as the printing of transactions, reports, and do-
cuments is, it is nevertheless true that oral discussions are a
most important feature of Anglican publicity of legislative,
judicial, and of many of the common administrative transac-
tions. Modern centralized absolutism has developed a system
of writing and secrecy, and consequent formalism, abhorrent
to free citizens who exist and feed upon the living word of
liberty. 1 Bureaucracy is founded upon Avriting, liberty on the
1 The following passage is given here for a twofold purpose. Every-
thing in it applies to the government of the pen on the continent of
Europe, and it shows how similar causes have produced similar results
in India and under Englishmen, who at home are so adverse to govern-
ment writing and to bureaucracy. In the Notes on the Northwestern
Provinces of India, by Charles Raikes, Magistrate and Collector of
Mynpoorie, London, 1853, we find this passage :
" Action, however, and energy, are what we now lay most stress upon,
because in days of peace and outward tranquillity these qualities are not
always valued at their true price, and their absence is not so palpably
132 ON CIVIL LIBERTY
breathing word. Extensive writing, pervading the minutest
branches of the administration, is the most active assistant of
modern centralization. It systematizes a police government
in a degree, which no one can conceive of, that does not know
it from personal observation and experience, and forms one of
the greatest obstacles, perhaps the most serious difficulty, when
nations, long accustomed to this all-penetrative agent of cen-
tralism, desire to establish liberty. I do not hesitate to point
out orality, especially in the administration of justice, in legis-
lation and local self-government, as an important element of
our civil liberty. I do not believe that a high degree of liberty
can. be imagined without widely pervading orality ; but oral
transaction alone is no indication of liberty. The patriarchal
and tribal governments of Asia, the chieftain government of
our Indians, indeed all primitive governments are carried on
by oral transaction without any civil liberty.
mischievous as in more stirring times. There is more danger now of
men becoming plodding, methodical, mere office functionaries, than of
their stepping with too hasty a zeal beyond the limits of the law. There
is truth, too, in Jacquemont's sneer India is governed by stationery, to
a more than sufficient extent; and one of the commonest errors of our
magistrates, which they imbibe from constant and early Indian associa-
tions, is to mistake writing for action, to fancy that dictation will supply
the place of exertion. In no other country are so many written orders
issued with so much confidence, received with such respect, and broken
with such complacency. In fact, as for writing, we believe the infection
of the 'cacoethes scribendi* must first have grown up in the East. It
pervades everything, but is more rampant and more out of place in a
police office than anywhere else. It was not the magistrate who origi-
nated this passion for scribbling ; but they have never succeeded in re-
pressing it, nor while the law requires that every discontented old wo-
man's story shall be taken down in writing, is it to be expected they ever
will. The Khayeths worship their pen and ink on certain festivals, and
there is a sort of ' religio' attaching to written forms and statements,
which is not confined to official life, but pervades the whole social polity
of the writing tribes. An Indian scribe, whose domestic expenditure
may average a sixpence a day, will keep an account-book with as many
columns, headings, and totals, as would serve for the budget of a chan-
cellor of the exchequer. To Tudor Mul and such worthies we owe, no
doubt, a great deal for the method and order which they infused into
AND SELF-GOVERNMENT. 133
Publicus, originally Populicus, meant that which relates to
the Populus, to the state, and it is significant that the term
gradually acquired the meaning of puhlic, as we take it as
significant, as it is that a great French philosopher, honored
throughout our whole country, lately wrote to a friend : " Po-
litical matters here are no longer puhlic matters." 1
In free countries political matters relate to the people, and
therefore ought to be public. Publicity informs of public mat-
ters ; it teaches, and educates, and it binds together. There
is no patriotism without publicity, and though publicity can not
always prevent mischief, it is at all events an alarm bell, which
calls the public attention to the spot of danger. In former
times secrecy was considered indispensable in public matters ;
it is still so where cabinet policy is pursued, or monarchical
absolutism sways ; but these governments, also, have been
obliged somewhat to yield to a better spirit, and the Russian
government now publishes occasionally government reports.
That there are certain transactions which the public service
requires to be withdrawn for a time from publicity, is evident.
We need point only to diplomatic transactions when not yet
brought to a close. But even with reference to these, it will
be observed that a great change has been wrought in modern
times, and comparatively a great degree of publicity now
prevails in the foreign intercourse of nations a change of
which the United States have set the example. A state secret
was formerly a potent word ; while one of our first statesmen
wrote to the author, many years ago, " I would not give a
public records ; but we have also to thank these knights of the pen for
the plaguiest long-figured statements, and the greatest number of such
statements, which the world ever saw." Well may the continental Euro-
pean, reading this, exclaim, C'est tout comme chez nous! In 1858, one
of the most distinguished statesmen of France, universally known as a
publicist, a former member, cabinet minister, and orator in-the house of
representatives, wrote from Germany, " I observe that the writing which
I have always considered so injurious to our affairs in France, is carried,
if possible, to a still greater degree in this country."
1 This observation followed a request to write henceforth with caution,
because, said he, choses politiques ne sont plus ici chosos publiques.
134 ON CIVIL LIBERTY
dime for all the secrets that people may imagine to be locked
up in the United States archives. "
It is a remarkable fact that no law insures the publicity of
the courts of justice, either in England or the United States.
Our constitution secures neither the publicity of courts nor
that of Congress, and in England the admission of the public
to the commons or the lords is merely by sufferance. The
public may at any time be excluded merely by a member ob-
serving to the presiding officer that strangers are present,
while we all know that the candid publication of the debates
was not permitted in the time of Dr. Johnson. Yet so tho-
roughly is publicity now ingrained in the American and Eng-
lishman that a suppression of this precious principle cannot
even be conceived of. If any serious attempt should be made
to carry out the existing law in England, and the public were
really excluded from the house of commons, a revolution
would be unquestionably the consequence, and publicity would
be added to the declaration of rights. We can no more ima-
gine England or the United States without the reporting
newspapers, than nature without the principle of vegetation.
Publicity pervaded the system of American politics so gene-
rally, that the framers of our constitution probably never
thought of it, or if they did, they did not think it worth while
to provide for it in the constitution, since no one had doubted
it. It is part and parcel of our common law of political ex-
istence. They did not trouble themselves with unnecessaries,
or things which would have had a value only as possibly com-
pleting a certain symmetry of theory.
It is, however, interesting to note that the first distinctly
authorized publicity of a legislative body in modern times,
was that of the Massachusetts house of representatives, which
adopted it in 1766. *
1 I follow the opinion of Mr. Robert C. Winthrop, late speaker of the
house of representatives of the United States, and believe him to be correct,
when, in an address before the Maine Historical Society, (Boston, 1849,)
he says : " The earliest instance of authorized publicity being given to
the deliberations of a legislative body in modern days, was in this same
AND SELF-GOVERNMENT. 135
Publicity of speaking has its dangers, and occasionally ex-
poses to grave inconveniences, as all guarantees do, and neces-
sarily in a greater degree, as they are of a more elementary
character. It is the price at which we enjoy all excellence in
this world. The science of politics and political ethics must
point out the dangers as well as the formal and moral checks
which may avert or mitigate the evils arising from publicity
in general, and public oral transaction of affairs in particu-
lar. It is not our business here. We treat of it in this place as
a guarantee of liberty, and have to show its indispensable-
ness. Those who know liberty as a practical and traditional
reality and as a true business of life, as we do, know that the
question is not whether it be better to have publicity or not,
but, being obliged to have it, how we can best manage to avoid
its dangers while we enjoy its fullest benefit and blessing. It
is the same as with the air we breathe. The question is not
whether we ought to dispense with a free respiration of all-
surrounding air, but how, with free inhalation, we may best
guard ourselves against colds and other distempers caused by
the elementary requisite of physical life, that we must live in
the atmosphere. 1
house of representatives of Massachusetts, on the 3d day of June, 1766,
when, upon motion of James Otis, and during the debates which arose
on the question of \lae repeal of the stamp act, and of compensation to
the sufferers by the riots in Boston, to which that act had given occasion,
a resolution was carried ' for opening a gallery for such as wished to hear
the debates.' The influence of this measure in preparing the public mind
for the great revolutionary events which were soon to follow, can hardly
be exaggerated." The American reader is referred to the note at the
end of this chapter for an account of the introduction of publicity into
the senate of the United States.
1 Great as the inconvenience is which arises from the abuse of public
speaking, and of that sort of prolixity which in our country is familiarly
called by a term understood by every one, Speaking for Buncombe, yet
it must be remembered that the freest possible, and, therefore, often
abused latitude of speaking, is frequently a safety-valve, in times of
public danger, for which nothing else can be substituted. The debates
in congress, when lately the Union itself was in danger, lasted for entire
months, and words seemed fairly to weary out the nation when every one
136 ON CIVIL LIBERTY
Liberty, I said, is coupled with the public word, and how-
ever frequently the public word may be abused, it is neverthe-
less true that out of it arises oratory the aesthetics of liberty.
What would Greece and Rome be to us without their Demos-
thenes and Cicero ? And what would their other writers have
been, had not their languages been coined out by the orator ?
What would England be without her host of manly and mas-
terly speakers ? Who of us could wish to see the treasures of
our own civilization robbed of the words contributed by our
speakers, from Patrick Henry to Webster ? The speeches of
great orators are a fund of wealth for a free people, from
which the school-boy begins to draw when he declaims from
his Reader, and which enriches, elevates, and nourishes the
souls of the old.
Publicity is indispensable to eloquence. No one speaks
well in secret before a few. Orators are in this respect like
poets their kin, of whom Goethe, " one of the craft," says
that they cannot sing unless they are heard.
The abuse of public speaking has been alluded to. It is a
frequent theme of blame and ridicule, frequently dwelt upon
by those who disrelish " parliamentarism," but it is necessary
to observe that if civil liberty demands representative legisla-
tive bodies, which it assuredly does, these bodies have no
called for action. There was no citizen capable of following closely all
those lengthy and occasionally empty debates, with all their lateral issues.
Still, now that the whole is over, it may well be asked whether there is a
single attentive and experienced American who doubts that, had it not
been for that flood of debate, we must have been exposed to civil dis-
turbances, perhaps to the rending of the Union.
Nevertheless, it is a fact that the more popular an assembly is, the
more liable it is to suffer from verbose discussions, and thus to see its
action impeded. This is especially the case in a country in which, as in
ours, a personal facility of public speaking is almost universal, and where
an elocutional laxity coexists with a patient tenacity of hearing, and a
love of listening which can never be surfeited. It has its ruinous effect
upon oratory, literature, the standard of thought, upon vigorous action,
on public business, and gives a wide field to dull mediocrity. This anti-
Pythagorean evil has led to the adoption of the "one hour rule" in the
house of representatives, in congress, and (in 1847) in the supreme
AND SELF-GOVERNMENT. 137
meaning without exchange and mutual modification of ideas,
without debate, and actual debate requires the spoken word.
I consider it an evil hour not only for eloquence, but for liberty
itself, when our senate first permitted one of its members to
read his speeches, on account of some infirmity. The true
principle has now been abandoned, and written speeches are
almost as common in congress as they were in the former
house of representatives of France, where, however, I may
court of the United States. The one hour rule was first proposed by
Mr. Holmes, of Charleston, in imitation of the Athenian one hour clep-
sydra yes, the prince of orators had that dropping monitor by his
side ! and is now renewed by every new house. The English have begun
to feel the same evil, and the adoption of the same rule was proposed in
the commons, in February, 1849. But the debate concluded adversely
to it, after Sir Robert Peel had adverted to Burke's glorious eloquence.
Our one hour rule, however, is not entirely new in modern times. In the
year 1562 (on the 21st of July) the Council of Trent adopted the rule
that the fathers in delivering their opinions should be restricted to half
an hour, which having elapsed, the master of ceremonies was to give
them a sign to leave off. Yet, on the same day, an exception was made
in favor of Salmeron, the pope's first divine, who occupied the whole sit-
ting, (History of the Life of Reginald Pole, by T. Phillips, Oxf. 1764, p.
397,) very much as in February, 1849, the whole American house called
" go on" when Governor McDowel had spoken an hour. He continued
for several hours.
Having mentioned the inconvenience of prolix speaking, it may not be
improper to add another passage of the address of Mr. Winthrop, already
mentioned. It will be recollected that this gentleman has been speaker.
He knows, therefore, the inconvenience in its whole magnitude. " Doubt-
less," he says, " when debates were conducted with closed doors, there
were no speeches for Buncombe, no claptrap for the galleries, no flou-
rishes for the ladies, and it required no hour rule, perhaps, to keep men
within some bounds of relevancy. But one of the great sources of in-
struction and information, in regard both to the general measures of
government and to the particular conduct of their own representatives,
was then shut out from the people, and words which might have roused
them to the vindication of justice, or to the overthrow of tyranny, were
lost in the utterance. The perfect publicity of legislative proceedings
is hardly second to the freedom of the press, in its influence upon the
progress and perpetuity of human liberty, though, like the freedom of the
press, it may be attended with inconveniences and abuses."
138 ON CIVIL LIBERTY
state on authority, they became rarer as constitutional liberty
increased and developed its energy.
All governments hostile to liberty are hostile to publicity,
and parliamentary eloquence is odious to them, because it is a
great power which the executive can neither create nor con-
trol. There is in imperial France a positive hatred against
the "tribune." Mr. Cousin, desirous of leading his readers
to compare the imperial system Avith that of the past govern-
ments, since the restoration, says of the Bourbons that, what-
ever it may be the fashion of saying of them, " they gave us
at any rate the tribune," (the public word,) while Mr. de
Morney, brother of Napoleon III., issued a circular to the
prefects, when minister of the interior, in 1852, in which the
publicity of parliamentary government is called theatricals.
It is remarkable that this declaration should have come from
a government which, above all others, seems, in a great mea-
sure, to rely on military and other shows.
Publicity begets confidence, and confidence is indispensable
for the government of free countries it is the soul of loyalty
in jealous freemen. This necessary influence is twofold con-
fidence in the government, and confidence of society in itself.
It is with reference to the latter that secret political societies
in free countries are essentially injurious to all liberty, in ad-
dition, that they prevent the growth and development of manly
character, and promote vanity ; that they are, as all secret
societies must inherently be, submissive to secret superior will
and decision, a great danger in politics, and unjust to the
rest of fellow-citizens, by deciding on public measures and men
without the trial of public discussion, and by bringing to bear a
secretly united body on the decision or election. Secret so-
cieties in free countries are cancers against which history
teaches us that men who value their freedom ought to guard
themselves most attentively. It would lead us too far from
our topic were we to discuss the important fact that mysteri-
ous and secret societies belong to paganism rather than to
Christianity, and we conclude these remarks by observing that
those societies which may be called doubly secret, that 'is to
AND SELF-GOVERNMENT. 139
say, societies which not only foster certain secrets and have
secret transactions, but the members of which are bound to
deny either the existence of the society or their membership,
are schools of untruth ; and that parents as well as teachers,
in the United States, would do no more than perform a solemn
duty, if they were using every means in their power to ex-
hibit to those whose welfare is entrusted to them, the despicable
character of the thousand juvenile secret societies which
flourish in our land and which are the preparatory schools for
secret political societies. 1
1 The following note consists of an article by Mr. James C. Welling,
of the National Intelligencer, Washington city. It appeared on the
30th of October, 1858, in consequence of some questions I had put re-
garding a previous article on my remarks on Publicity in the United
States. Mr. Welling had doubtless free access to the ample stores of
personal recollections possessed by the founders of that public journal.
The student of history will find it an instructive document, and I have
preferred to give the whole, even with the introduction on the early inter-
course between congress and the President of the United States, partly
on account of antiquarian interest, partly because it is not unconnected
with the publicity of debate in the senate.
Mr. Welling says that it has been remarked that the principle of pub-
licity seems to have so thoroughly pervaded all the politics of the United
States that the framers of our constitution never thought of it, or if they
did, they thought it hardly worth while to make special provision for it,
since none doubted its observance. While this statement has a deep
foundation in much of our civil history during the period of the revolu-
tion and the formation of our present constitution, it should not be for-
gotten that the sessions of our continental congress were held in secret,
and even after the formation of our present constitution, one branch of
the national legislature, for more than five years, sat with closed doors.
We allude to the senate, whose deliberations, unlike those of the house
of representatives, were conducted in secret during the whole of the first
and second congresses, and also during a part of the third. As the par-
ticulars connected with this fact in our parliamentary history arc perhaps
not familiarly known to every reader, we have thought it might not be
without interest to recall some of the reminiscences corroborative of a
statement which, at the present day, and with our established notions,
must seem not a little extraordinary and anomalous. In doing so, we
may take occasion to allude incidentally, by way of preface, to a few
subsidiary topics relating to the forms of official intercourse existing
140 ON CIVIL LIBERTY
between the executive and legislative departments of the government
during the earlier days of the republic.
The first session of the first congress of the United States held under
the constitution framed and submitted by the federal convention in
Philadelphia, was begun in the city of New York on the 4th of March,
1789. Neither house, however, could at once proceed to the transaction
of business from the want of a quorum, which was secured in the popular
branch only, on the 1st of April following, and in the senate on the 6th
of the same month. On that day the latter body, having elected a pre-
sident pro tern., proceeded, in the presence of the house of representa-
tives, assembled in the senate chamber by invitation, to count the votes
of the electors of the several states for President and Vice-President of
the United States, when it was found that George Washington was
unanimously elected to the former office by the voice of the eleven states
then composing the Union, (Rhode Island and North Carolina not hav-
ing yet adopted the constitution,) and that John Adams was chosen
vice-president by a majority of the votes cast for that office. The se-
nate thereupon appointed Mr. Charles Thomson (long the clerk of the
continental congress) to notify Gen. "Washington, and Mr. Sylvanus
Bourne to notify John Adams of their election to the offices for which
they had been respectively designated.
Mr. Adams took his chair as president of the senate on the 21st of the
same month, and on the 30th Gen. Washington received the oath of office,
as President of the United States, in the senate chamber, in the pre-
sence of both houses of congress, assembled on the occasion to witness
the ceremonial. The oath was administered by the chancellor of the
State of New York, who proclaimed, as the same was accepted by the
president, "Long live George Washington, President of the United
States." The president then resumed the seat from which he had risen
to take the oath, and, after a short pause, rose and delivered before the
senate and house of representatives his inaugural address. On its con-
clusion, the president, the vice-president, the senate, and the house of
representatives proceeded to St. Paul's Chapel, in New York, where
divine service was performed by the chaplain' of congress, after which
the president was reconductcd to his house by a committee appointed
for that purpose.
After the celebration of these religious exercises the senate reassem-
bled and appointed a committee to prepare an " answer to the pre-
sident's speech." In the house of representatives a similar committee
was appointed on the following day. The reply of the senate was read
and adopted in that body on the 7th of May. and agreeably to previous
arrangement was delivered to the president at his own house on the
18th following, the senate waiting upon the president for this purpose
with the vice-president, their presiding officer, at their head. The pre-
AND SELF-GOVERNMENT. 141
sident, on receiving the address, made a brief and appropriate response.
The reply of the house of representatives was read and adopted on the
5th of May, and, by a similar pre-concert, was delivered to the president
on the 8th of the same month, in a room adjoining the representatives'
chamber, where the speaker, attended by the members of the house,
placed in the president's hands a copy of the address, for which the
president returned his thanks in a few appropriate remarks.
Such was the nature of the ceremonial observed in the official commu-
nications interchanged between the president and the two houses of
congress at the opening of every session of congress during the admi-
nistration of Washington and John Adams. On the accession of Mr.
Jefferson, the practice of delivering the annual presidential speech in
person before both houses of congress at its opening was superseded
by the present custom of sending a written message. And with this
change the habit of preparing a formal reply on the part of both houses
to the recommendations of the president fell into similar desuetude. Mr.
Jefferson, it is well known, was subsequently accustomed to point to this
change as one of the " reforms" he had effected in what he called the
" Anglican tendencies" and " royal usages" of our government under
the administration of the federalists.*
To resume the principal topic of remark in the present article, we re-
peat that the senate, in the earlier days of the government, sat with
closed doors, as well during its legislative as in its executive sessions.
Its debates, therefore, unlike those of the house of representatives,
were for a time held in secret ; but it was provided by a resolution passed
on the 19th of May, 1789, that one hundred and twenty copies of the
journal of the legislative proceedings of the senate should be printed
* It may not be uninteresting to add that President Jefferson, at the
time when this change was made, attributed it to other causes. His first
annual address to both houses of congress was sent in on the 8th of De-
cember, 1801, and was accompanied with the subjoined letter, addressed to
the presiding officer of each body :
DECEMHEK 8, 1801.
SIR: The circumstances under which we find ourselves at this place
[Washington] rendering inconvenient the mode heretofore practised, of
making by personal address the first communications between the legisla-
tive and executive branches, I have adopted that by message, as used on
all subsequent occasions through the session. In doing this 1 have hud
principal regard to the convenience of the legislature, to the economy of
their time, to their relief from the embarrassment of immediate answers on
subjects not yet fully before them, and to the benefits thence resulting to
the public affairs. Trusting that a procedure founded in these motives will
meet their approbation, I beg leave, through you, sir, to communicate the
enclosed message, with the documents accompanying it, to the honorable
the senate, and pray you to accept, for yourself and them, the homage of
my high respect and consideration.
The Hon. the President of the senate. Tn. JEFFERSON.
142 ON CIVIL LIBERTY
once a month for distribution among the members of the body, and, we
suppose, for partial dissemination among the public, since it was pro-
vided that each member should be furnished with but a single copy on
his own account.
At this distance of time we may not perhaps be able to understand or
state the reasons which determined .the senate to sit with closed doors
in all their deliberations, as still in those which pertain to executive
business. It is probable that the habit grew out of the fact that the
senate, in the original theory of its constitution, was regarded primarily
as a confidential and advisory council to the executive ; and, as is well
known, its earlier sessions were pre-eminently occupied in executive
business. In relation to measures of legislation it seems to have been
conceived that its function was mainly revisory and deliberative ; and
hence the greater prominence of the house in initiating and debating
not only " revenue bills," which it was provided by the constitution should
be originated only by the Representatives, but also other measures of
federal legislation. In evidence of this fact we may state that the se-
nate was wholly without standing committees until the year 1816, when
during the second session of the fourteenth congress it was determined
to provide for their appointment. In the house they had been raised
by a standing rule as early as the year 1799, although at first their num-
ber was restricted to five a committee respectively on elections, claims,
commerce, ways and means, and on revisal and on unfinished business.
The first executive business of the senate was transacted on the 25th
of May, 1789, when the president communicated for the advice and con-
sent of the senate certain treaties made with the northern and north-
western Indians. At subsequent sessions he sent in by letter his nomi-
nations for various offices appointed to be filled with the advice and
consent of the same body. The senate having refused to ratify the no-
mination of Mr. Benjamin Fishbourn as naval officer for the port of Sa-
vannah, President Washington, on the 7th of August, addressed a mes-
sage to the body vindicating his reasons for nominating that gentleman,
and suggesting to the senate the expediency of communicating to him
their views on occasions where the propriety of his nominations appeared
questionable to them.
Moved by this intimation of the president, the senate appointed a
committee to wait on him for the purpose of concerting a mode of com-
munication proper to be pursued between both parties in the formation
of treaties and making appointments to office. Accordingly it was re-
solved that, in conformity with the president's pleasure, he might make
his nominations to the senate either in writing or in person ; and it was
further provided that for this purpose he might wait on the senate in
their own chamber, (in which case he should occupy the chair of the
president of the senate,) or might summon the president of the senate
AND SELF-GOVERNMENT. 143
and the senators to meet him at such place as he should designate. It
was provided, however, that all questions, whether in the presence or
absence of the President of the United States, should be put by the
president of the senate, and " that the senators should signify their as-
sent or dissent by answering, viva voce, aye or no." On the day follow-
ing the adoption of this minute, that is, on the 22d of August, 1789, it
appears from the journal that the President of the United States came
into the senate chamber, attended by General Knox, and laid before
the senate a statement of facts in reference to the negotiation of certain
treaties with various Indian tribes. Desiring to fix certain principles
on which the negotiations should be conducted, he reported to the se-
nate a series of questions, to each of which he requested a categorical
answer, to guide him in giving instructions to the commissioners appoint-
ed to treat with the Indians. The questions were seven in number, and
were considered throughout two daily sessions, in the presence of the
president, and, as appears from the journal, of General Knox.
How long the relations between the president and the senate re-
mained on this footing we are unable to say with any accuracy, though
the practice of his personal attendance during their sessions in execu-
tive business seems to have been abandoned after a time ; and authentic
tradition records that its disuse was hastened by the blunt speeches of
certain senators, who intimated that the presence of the president ope-
rated as a restraint on them in canvassing the merits of the candidates
submitted for their advice and consent. It soon became habitual for the
president to communicate all his nominations to the senate in writing.
As has been already stated, the proceedings of the senate, as well
legislative as executive, were conducted during the first session with
closed doors. During the second session of the first congress, which was
begun in New York on the 4th of January, 1790, the same custom was
retained, though, as appears from the journal, not without protest and
dissent on the part of some senators. For it appears that on the 29th of
April following it was moved " that the doors of the senate chamber
shall be open when the senate is sitting in their legislative capacity, to
the end that such of the citizens of the United States as may choose to
hear the debates of this house may have an opportunity of so doing."
This resolution, being postponed for consideration on the following day,
was then taken up, and, after debate, rejected.
At a third session of the first congress, begun in Philadelphia on the
6th of December, 1790, it was again proposed, on the 23d of February
following, "that it be a standing rule that the doors of the senate cham-
ber remain open whilst the senate shall be sitting in a legislative capa-
city, except on such occasions as, in their judgment, may require secrecy ;
and that this rule shall commence and be in force on the first day of the
next session of congress." And to this end it was proposed " that the
144 ON CIVIL LIBERTY
secretary of the senate request the commissioners of the city and county
of Philadelphia to cause a proper gallery to be erected for the accom-
modation of the audience." After debate, extending through two days,
the proposition was rejected by a vote of 9 yeas to 17 nays. The names
of those voting in the affirmative are Messrs. Butler, Foster, Gunn, Haw-
kins, King, Lee, Maclay, Monroe, and Schuyler. Those voting in the
negative were Messrs. Bassett, Carroll, Dalton, Dickinson, Ellsworth,
Elmer, Few, Henry, Johnson, Johnston, Izard, Langdon, Morris, Bead,
Stanton, Strong, and Wingate.
The first session of the second congress was begun at Philadelphia on
the 24th of October, 1791. On the 26th of March following a few
weeks before the adjournment of congress at that session a resolution
identical in terms with that rejected at the last session of the first con-
gress was moved by Mr. Monroe and seconded by Mr. Lee, both of Vir-
ginia. The proposition met with the same fate, receiving fewer votes
than at the former session. Some days after the rejection of this reso-
lution it was moved " that when the senate are sitting in their legisla-
tive capacity the members of the house of representatives may be
admitted to attend the debates, and each member of the senate 'may
also admit a number not exceeding two persons ; provided the operation
of this resolution be suspended until the senate chamber is sufficiently
enlarged." This proposition also failed to be adopted, receiving only
six votes.
"We have recited these several and ineffectual attempts to procure the
abrogation of this established rule of the senate for the purpose of
showing that it did not grow up as an unregarded usage, but was founded
on considerations satisfactory to a majority of the senate at that day.
Nor does it appear to have been a question of party politics, since we
find federalists voting with republicans for its abolition, and republi-
cans voting with federalists for its retention.
The first session of the third congress of the United States, which
commenced at Philadelphia on the 2d of December, 1793, was destined
to witness the overthrow of the rule which had previously obtained on
this point. The senate was called at this session to consider and decide
a question which elicited a large share of public interest, because of the
political susceptibilities which had been awakened by its discussion. We
allude to the contest raised respecting the eligibility of Mr. Albert Gal-
latin as a member of the senate from the state of Pennsylvania. On
the first day of the session of that year a petition was presented by
Conrad Laub and others, representing that Mr. G. at the date of his
election had not been, as the constitution requires, " nine years a citizen
of the United States." The committee to which the whole subject was
referred, reported adversely to the claims of Mr. Gallatin on the 31st of
December, and the report, after being read and ordered to lie over for
AND SELF-GOVERNMENT. 145
future consideration, was taken up on the 9th of January following, and
discussed through several successive days, when, on the 13th of the same
month, the matter was re-committed to a special committee of elections
appointed for the purpose of hearing both parties to the contest. Before
this committee reported, and on the 16th of January, 1794, Mr. Martin,
of North Carolina, moved the adoption of the following formal resolu-
tions against the principles and policy of the existing regulations of the
senate in regard to the secrecy of its deliberations :
"Resolved, That in all representative governments, the representa-
tives are responsible for their conduct to their constituents, who are en-
titled to such information, that a discrimination and just estimate be
made thereof.
" Resolved, That the senate of the United States, being the represen-
tatives of the sovereignties of the individual states, whose basis is the
people, owe equal responsibility to the powers by which they are ap-
pointed, as if that body were derived immediately from the people, and
that all questions and debates arising thereupon in their legislative and
judiciary capacity, ought to be public.
" Resolved, That the mode adopted by the senate of publishing their
journals, and extracts from them, in newspapers, is not adequate to the
purpose of circulating satisfactory information. While the principles
and designs of the individual members are withheld from public view, re-
sponsibility is destroyed, which, on the publicity of their deliberations,
would be restored ; the constitutional powers of the senate become more
important, in being more influential over the other branch of the legis-
lature ; abuse of power, mal-administration of office, more easily detected
and corrected ; jealousies, rising in the public mind from secret legisla-
tion, prevented ; and greater confidence placed by our fellow-citizens in
the national government, by which their lives, liberties, and properties
are to be secured and protected.
" Resolved, therefore, That it be a standing rule that the doors of the
senate chamber remain open while the senate shall be sitting in a legis-
lative and judiciary capacity, except on such occasions as in their judg-
ment may require secrecy ; and that this rule commence on the day
of ."
These resolutions, being called up on the morrow, were postponed suc-
cessively from day to day, when, on the 10th day of February, the com-
mittee which had Mr. Gallatin's case in charge, made their report to the
senate, and a day was fixed for its consideration. Immediately on the
presentation of the report, it was moved by a member " that the doors of
the senate be opened and continued open during the discussion upon the
contested election of Albert Gallatin," which resolution was adopted on
the llth of February, 1794. Meanwhile the series of resolutions abolish-
ing the whole system of secrecy during legislative proceedings, was still
pending, and came up for consideration on the 19th of February, when
each resolution was finally rejected, and a substitute offered in the fol-
lowing terms :
" Resolved, That after the end of the present session of congress, and
so soon as suitable galleries shall be provided for the senate chamber,
10
146 ON CIVIL LIBERTY
the said galleries shall be permitted to be opened every morning, so long
as the senate shall be engaged in their legislative capacity, unless in
such cases as may, in the opinion of the senate, require secrecy, after
which the said galleries shall be closed."
This resolution was passed on the following day by a vote of nineteen
yeas to eight nays. Those who voted in the affirmative were Messrs.
Bradley, Brown, Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn,
Hawkins, Jackson, King, Langdon, Livermore, Martin, Monroe, Potts,
Taylor, and Vining. Those who voted in the negative were Messrs.
Bradford, Cabot, Frelinghuysen, Izard, Mitchell, Morris, Rutherfurd, and
Strong.
So this regulation of the senate was prospectively repealed and de-
clared inoperative " after the present session," as by a previous resolu-
tion it had been expressly suspended during the debate on the case of
Mr. Gallatin. Yet this step was not taken without reservation and cau-
tion, as is apparent from the fact that on the same day with the passage
of the prospective resolution, it was unanimously resolved " That, on a
. motion made and seconded to shut the doors of the senate, on the dis-
cussion of any business which may, in the opinion of a member, require
secrecy, the president shall direct the gallery to be cleared ; and that
during the discussion of such motion the doors shall remain shut."
It only remains for us to add, in conclusion, that on the day following
the passage of these resolutions, the case of Mr. Gallatin was debated in
open senate. The discussion extended through several days, and was
conducted in the form of a trial, Mr. Gallatin affirming his right to the
character of a citizen of the United States, and Mr. Lewis, a member of
the Pennsylvania bar, attended by Mr. Schmyser, a member of the state
senate of Pennsylvania, appearing as managers of the prosecution on the
part of the petitioners. The pleadings, opened on the 21st of February,
were closed on the 28th of the same month, when the senate decided that
the election of Mr. Gallatin was void, in consequence of his not having been
a citizen of the United States during the term of years required by the
constitution as a qualification for membership in the United States se-
nate. This case being settled, the doors of the senate were closed against
the public during the residue- of the session; but since that period, so far
as we can recall, the legislative deliberations of the body have been uni-
formly conducted in public, without any interruption other than that
which has sometimes arisen from the inadvertence of the senate, in re-
suming its legislative discussions after a secret session, and without think-
ing for a time to re-open the doors which had been closed during the
transaction of executive business.
We need hardly say that it has been frequently proposed to abolish the
secrecy of the senate even when called to sit in judgment on the treaties
formed, or the nominations submitted by the executive branch of the go-
AND SELF-GOVERNMENT. 147
vernment. But the propriety of such a reservation, made in behalf of
diplomatic negotiations not yet brought to a close, is too manifest to
need remark, while the freedom and independence which the senator
should enjoy in canvassing the propriety and character of the official ap-
pointments made with his advice and consent, plead perhaps with equal
force in favor of retaining the rule so far as it relates to this other branch
of executive business. The injunction of secrecy is from time to time re-
moved by resolution of the senate from all subjects of popular concern,
whose publication can no longer frustrate the ends of prudent legislation.
CHAPTER XIV.
SUPREMACY OF THE LAW. TAXATION. DIVISION OF POWER.
19. THE supremacy of the law, in the sense in which it has
already been mentioned, or the protection against the abso-
lutism of one, of several, or the people, (which, practically,
and for common transactions, means of course, the majority,)
requires other guarantees or checks of great importance.
It is necessary that the public funds be under close and
efficient popular control, chiefly, therefore, under the super-
vision of the popular branch of the legislature, which is like-
wise the most important branch in granting the supplies, and
the one in which, according to the English and American
fundamental laws, all money bills must originate. The Eng-
lish are so jealous of this principle, that the commons will not
even allow the lords to propose amendments affecting money
grants or taxation. 1
If the power over the public treasury, and that of imposing
taxes, be left to the executive, there is an end to public liberty.
Hampden knew it when he made the trifling sum of a pound
of unlawfully imposed ship-money a great national issue, and
our Declaration of Independence enumerates, as one of the
gravest grievances against the mother country, that England
" has imposed taxes without our consent."
One of the most serious mistakes of those who are not
versed in liberty is to imagine that liberty consists in withhold-
1 "While these sheets were passing through the press, (March, 1859,)
the house of representatives, at Washington, refused to consider certain
amendments, passed in the senate, for the purpose of raising the postage
on letters, the house declaring by resolution that these amendments in-
terfered with the constitutional and exclusive right of the house to origi-
nate bills affecting the revenue.
(148)
ON CIVIL LIBERTY. 149
ing the necessary power from government. Liberty is not
of a negative character. It does not consist in merely denying
power to government. Government must have power to per-
form its functions, and if no provision is made for an orderly
and organic grant of power, it will, in cases of necessity, ar-
rogate it. A liberty thus merely hedging in, would resemble
embankments of our Mississippi, without an outlet for freshets.
No one believes that there would be sufficient time to repair the
crevasse. This applies to all subjects of government, and es-
pecially to appropriations of money. Merely denying money
to government, or, still worse, not creating a proper organism
for granting it, must lead either to inanity or to executive
plundering ; but it is equally true that the strictest possible
limitation and hedging in by law, of the money grants, are as
requisite for the cause of liberty as the avoidance of the error
I have just pointed out. This subject is well treated in our
"Federalist," 1 and the insufficiency of our ancient articles of
confederation was one of the prominent causes which led our
forefathers to the adoption of the federal constitution. Lord
Nugent truly calls the power of granting or refusing supplies,
vested in parliament, but especially in the house of commons,
or, as he says, " the entire and independent control of parlia-
ment over the supplies," " the stoutest buttress of the English
constitution." 2
It is the Anglican rule to make but short appropriations,
and to make appropriations for distinct purposes. We insist
still more on this principle than the English, and justly de-
mand that appropriations be made as distinct and specific
as possible, and that no transfer of appropriations by the
executive take place ; that is to say, that the executive be
not authorized to use a certain appropriation, if not wholly
spent, partially for purposes for which another appropriated
sum has proved to be insufficient. It is not only necessary for
vigorous civil liberty that the legislature, and chiefly the popu-
1 " Federalist," No. xxx. and sequel, Concerning Taxation, and other
parts of that sage book.
2 " Memorials of John Hampden," vol. i. p. 212 ; London, 1832.
150 ON CIVIL LIBERTY
lar branch of it, keep the purse-strings of the public treasury ;
but also that the same principle be acted upon in all minor cir-
cles of the vast public fabric. The money of the people must
be under the control of the trustees of the people, and not at
the disposal of officials unconnected with the people, or at the
disposal of an irresponsible multitude, which, itself without
property, readily countenances those malappropriations of
money which we meet with in every democratic absolutism,
from the later times of Athens to the worst-governed large
cities of our own country.
The French imperial constitution decrees, indeed, that the
budgets of the different ministers must be voted by the depu-
ties, but they must be voted each as a whole ; no amendments
can be made either in the sums thus voted in the lump, or in
anything else proposed by the government, the government
alone having the initiative. All the deputies can do is to send
back a bill to the government, with remarks. The French
provision, therefore, is founded on a principle the very oppo-
site to that which we consider essential regarding money ap-
propriations.
The history of the control over the public funds, in grant-
ing, specifying and spending them, may well be said to be
a continuous index of the growth of English liberty. It
is this principle which has essentially aided in establishing
self-government in England ; and which has made the house
of commons the real seat of the national government as we
now find it. Everyone knows that the "supplies" are the
means by which the English effect in a regular and easy way
that which the Roman populus occasionally and not regularly
effected against the senate, by a refusal to enlist in the army
when war was at the gates of the city. 1
1 Chatham, when minister of the crown in 1759, and while Lord Clive
was making his great conquests in the East, said that neither the East
India Company nor the crown ought to have that immense revenue. If
the latter had it, it would endanger all liberty. Chatham's Correspond-
ence, vol. i. In the year 1858, however, the government of the East In-
dies was taken from the company and given to Ih'e crown. It would
AND SELF-GOVERNMENT. 151
The history of the British civil list, or the personal revenue
granted to the monarch at the beginning of his reign, is also
instructive in regard to this subject. In the middle ages the
monarch was the chief nobleman, and had, like every other
nobleman, his domains, from which he drew his revenue.
Taxes were considered extraordinary gifts. As the monarch,
however, wanted more money, either for just or unjust pur-
poses, loans were made, which were uever redeemed. Mr.
Francis correctly observes, that it is absurd to charge William
III. with having created a public debt, as Hume and so many
others have done. William III., on the contrary, was the
first monarch who treated loans really as loans, and provided
either for their repayment or the payment of interest. 1
As civil liberty advanced, all revenue of the monarch, in-
dependent of the people, was more and more withdrawn from
him, and crown domains were more and more made public
domains, until we see George III. givingupall extra-parliament-
ary revenue. The monarch was made dependent on the civil
list exclusively.
20. It is further necessary that the power of making war
essentially reside with the people, and not with the executive.
In England, it is true, the privilege of making war and con-
cluding peace is called a royal prerogative, but as no war can
be carried on without the nervus rerum gerendarum, it is the
commons who decide whether the war shall be carried on or
not. They can grant or decline the authority of enlisting men,
and the money to support them and to provide for the war.
The Constitution of the United States decrees that congress
shall have power to make war, 2 and an American declaration
seem that the commons felt so secure, in the middle of the nineteenth
century, that they did not fear to have that vast eastern empire ruled
over, theoretically, by the monarch, in reality, by a minister responsible
to parliament.
1 Francis, Chronicles and Characters of the Stock Exchange.
2 It may as well be observed here that congress means the senate
and house of representatives. The president is not included in the
term. Parliament, on the other hand, means commons, lords, and king.
Practically speaking, the difference is not great; for, the president has
152 ON CIVIL LIBERTY
of war must be passed by congress, like any other law. A
declaration of war by the United States is a law.
Where the executive has not only the nominal, but the real
power of declaring war, we cannot speak of civil liberty or of
self-government ; for that which most essentially affects the
people in all their relations, is in that case beyond their con-
trol. Even with the best contrived safeguards, and a deeply
rooted tradition, it seems impossible to guard against occa-
sional high-handed assumption of power by the executive in
this particular. Whatever our late Mexican war ultimately be-
came in its character, there is probably now no person who will
deny that, in its beginning, it was what is called a cabinet
war. It was commenced by the cabinet, which, after hostili-
ties had begun, called on congress to ratify its measures.
It has already been stated (paragraph 13) that a perfect
dependence of the forces npon the civil power is an indispen-
sable requisite and element of civil liberty.
21. The supremacy of the law and that unstinted protec-
tion of the individual as well as of society, in which civil
liberty essentially consists, require on the one hand the fullest
possible protection of the minority, and, on the other hand, the
security of the majority that no factious minority or cabal shall
rule over it.
The protection of the minority leads to that great institu-
tion, as it has been boldly but not inappropriately called the
opposition. A well organized and fully protected opposition,
in and out of the legislature a loyal opposition, by which is
meant a party which opposes, on principle, the administration
or the set of men who have, for the time being, the govern-
ment in their hands, but does so under and within the common
fundamental law, is so important an element of civil liberty,
whether considered as a protecting fence or as a creative
the veto power, of which he makes occasional use, while the King of
England has not made any use of it for about a century. The English
administration would resign before it would become necessary in their -
eyes to veto a bill. But the King of England has the greatest of all
veto powers he can dissolve parliament, which our executive cannot do.
AND SELF-GOVERNMENT. 153
power, that it would be impossible here to give to the subject
that space which its full treatment would require. I have
attempted to do so, and to sketch its history, in my Political
Ethics.
The elaboration of that which we call an opposition, is an
honor which belongs to the English, and seems to me as great
and as noble a contribution to the treasures of civil freedom,
as the development of the power of our supreme courts (of
the United States and of the different states) to declare, upon
trial of specific cases, a law passed by the legislature uncon-
stitutional and void. They are two of the noblest acquisitions
in the cause of liberty, order and civilization.
22. The majority, and through it the people at large, are
protected by the principle that the administration is founded
upon party principles, or, as it has been called, by a govern-
ment by party, if by party we mean men who agree on cer-
tain "leading general principles in government" 1 in opposi-
tion to others, and act in unison accordingly. If by party be
understood a despicable union of men, to turn out a certain
set of office-holders merely to obtain the lucrative places, and,
when they are obtained, a union to keep them, it becomes an
odious faction of placemen or office-hunters, the last of those
citizens to whom the government ought to be entrusted. The
ruinous and rapidly degrading effect of such a state of things
is directly contrary to sound liberty, and serves as a fearful
encouragemet to those, who, politically speaking, are the most
worthless. But freedom of thought and action produces con-
tention in all spheres, and, where great tasks are to be per-
formed and where weighty interests are at stake, those who
agree on the most important principles, will unite and must do
so in order to be sufficiently strong to do their work. With-
out party administration, and party action, it is impossible that
the majority should rule, or that a vigorous opposition can rise
to a majority and rule in turn. Liberty requires a parliamen-
tary government, and no truly parliamentary government can
be conceived of without the principle of party administration.
1 Burke.
154 ON CIVIL LIBERTY
It became fully developed under George I., or we should
rather say under Sir Robert Walpole. Under the previous
governments mixed cabinets of whigs and tories were common,
when court intrigues and individual royal likings and dislikes
had necessarily often a greater effect than national views and
interests, to which it is the object of party administration to
give the sway. We have to deal with parties, in this place,
only as connected with civil liberty.
For their dangers, their affinity to faction as well as their
existence in the arts, sciences, religion and even in trades in
fact, wherever free action is allowed ; for the public inconveni-
ence, and indeed danger in having more than two parties ; the
necessity that political parties should be founded upon broad,
comprehensive and political principles, for the galling inso-
lence to which parties in power frequently rise, even in coun-
tries as ours, and for the fact that, in England at least, there
is a manifest disposition to treat measures and politics in gene-
ral, as far as possible without reference to mere party politics,
as well as for many other important matters connected with
the subject of parties, I must refer to other places. 1
23. A principle and guarantee of liberty, so acknowledged
and common with the Anglican people, that few think of its
magnitude, yet of really organic and fundamental importance,
is the division of government into three distinct functions, or
rather the keeping of these functions clearly apart.
It is, as has been mentioned, one of the greatest political
blessings of England, that from a very early period her courts
of justice were not occupied with " administrative business,"
for instance, the collection of taxes, and that her parliament
became the exclusive legislature, while the parliaments of
France united a judicial, legislative and administrative cha-
racter. The union of these functions is absolutism, or despotism
on the one hand, and slavery on the other, no matter in whom
1 These subjects have been considered at length in the Political
Ethics. The reader will peruse with advantage the chapter on Party
in Lord John Russell's Essay on the History of the English Govern-
ment and Constitution, 2d edit. London, 1823.
AND SELF-GOVERNMENT. 155
they are united, whether in one despot or in many, or in the
multitude, as in Athens after the time of Cleon the tanner.
The English political philosophers have pointed out long ago 1
the necessity of keeping the three powers separate in a " con-
stitutional" government. Those, however, who have no other
definition of liberty than that it is equality, discard this
division, except, indeed, so far as the mere convenience of
transacting business would require.
We have seen already that a distinguished French publicist,
Mr. Girardin, declares himself for an undivided public power. 2
Unite* du pouvoir is the watchword of the French republicans,
and it is the very principle with which Louis Napoleon check-
mated them. It belongs to what may well be called Rousseau-
ism. Rousseau is distinctly against division of power. His
Social Contract became the political bible of the convention-
men, and it has ever since kept a firm hold on the mind of a
very large part of the French people, probably of the largest
portion. Indeed we may say that the two great types of
government now existing among the civilized and striving por-
tion of mankind are representive (or, as the French choose to
1 For instance, Locke. Montesquieu, at a later period, is generally
considered the political philosopher who first distinctly conceived the
necessity of the division of power. The English practised it earliest
and established it most clearly ; and the French have again given it up,
for a time at least, ever since the revolution of 1848, nor has it ever
been properly carried out by them, their principle of centralization pre-
venting it. See Pol. Ethics, book ii. c. xxiii.
2 He has repeatedly given his views, but especially in an elaborate
and brilliantly written, but, according to our opinion, superficial paper
on the question, why the republic (of 1848) came to a fall. Mr. Girardin
and all the French who believe that liberty exists in the right of choosing
the ruler, although once elected he be absolute, seem entirely to forget
that all the generals of the monastic orders are elective ; that, in many
orders, even in those of nuns, for instance in the Ursuline order, the supe-
riors are elected by universal suffrage, but that no person has ever
claimed the possession of liberty for the monks or nuns. Indeed their
very vow is against it. But "republicanism" has actually been vindi-
cated for the monastic orders. In the same way Rome might be con-
sidered a republic because the pope is elective.
156 ON CIVIL LIBERTY
call it, parliamentary) government, which is essentially of a
co-operative character it is the government of Anglican
liberty ; and unity of power, the Gallican type. The French
people themselves are divided according to these two types.
Mr. Guizot may perhaps be considered as the French repre-
sentative of the first type. A pamphlet, on the other hand,
on government, and generally ascribed to Louis Napoleon,
published not long before the explosion of the republic, for
which it was evidently intended to prepare the public mind,
advocates the unity of power in the last extreme, and as a
truly French principle.
It may be granted that when French publicists and histo-
rians speak with undisguised praise of the introduction of
centralization and unity of power as one of the greatest
blessings, they may at times mean an organized and uniform
government, as opposed to merely specific protection in an-
tiquity and the middle ages, where tribunes, jurats and other
officers were appointed to protect certain interests or classes,
somewhat like foreign ministers or consuls of the portions of
society, in times of peace it is possible that they occasionally
mean something of this sort, without being quite conscious of
the difference; but, as matters stand, we who love Anglican
liberty, believe what is now and emphatically called unity of
power, is unvarnished absolutism. It is indifferent who wields
it. We insist upon the supremacy, not the absolutism, of the
legislature. We require the harmonious union of the co-ope-
rative whole, but abhor the unity of power.
What the French republicans demand in the name of the de-
mocracy, kings insist upon in the name of divine right. Both
loudly protest against the " division of sovereignty," which
can only mean a clear division of power ; for what in a philo-
sophical sense can truly be called sovereignty, can never be
divided, and its division need not, therefore, be guarded
against. Sovereignty is the self-sufficient source of all power
from which all specific powers are derived. It can dwell,
therefore, according to the views of freemen, with society, the
nation only ; but sovereignty is not absolutism. It is remark-
AND SELF-GOVERNMENT. 157
able how all absolutists, monarchical or democratic, agree on
the unity of poAver. 1
Power, according to its inherent nature, goes on increasing
until checked. The reason is not that power is necessarily of
an evil tendency, but because without it, it would not be
power. 2 Montesquieu says : " It is a lasting experience that
every man who has power is brought to the abuse of it. He
goes on until he finds its limits." 3 And it is so with "every
man," because it lies in the very nature of power itself. The
reader is invited to reperuse the "Federalist" on this weighty
subject. 4
The unity of power doubtless dazzles, and thus is the more
dangerous. The French ought to listen to their own great
countryman. He says : " A despotic government (and all unity
of power is despotic) strikes the eye, (saute pour ainsi dire aux
yeux ;) it is uniform throughout : as it requires nothing but
passions to establish it, all sorts of people are sufficiently good
for it." 5
Our own Webster, in his speech on the presidential protest,
delivered the following admirable passage on the subject of
1 Innumerable official instances might be cited. The King of Prus-
sia, when, in May, 1847, he delivered his first throne speech to the united
committees of the provincial estates, which were to serve as a substitute
for the expected estates general, " appealed in advance to his people, 1 '
against everything we are accustomed to call constitutional. "My peo-
ple does not want a participation of representatives in ruling nor
the division of sovereignty, nor the breaking up of the plenitude of royal
power," etc. General Bonaparte wrote to the Directory, May 14, 1796 :
" One bad general is even better than two good ones. War is like go-
vernment, it is a matter of tact" words which Mr. Girardin quotes with
approval, and as an authority for his theory of the best government
consisting in a succession of perfectly absolute single rulers to be ap-
pointed, and at pleasure recalled by universal suffrage.
2 This I have endeavored plainly to show in the Political Ethics.
8 Esprit des Loix, xi. 5.
4 Mr. Madison's paper on The Meaning of the Maxim, which requires
a Separation of the Departments of Power, examined and ascertained.
Federalist, No. xlvii. and sequ.
5 Esprit des Loix, book v. c. 14.
158 ON CIVIL LIBERTY
which we treat, and on liberty in general a passage which I
give entire, in spite of its length, because I cannot find the
courage to mutilate it. I have tried to select some sentences,
but it seemed to me like attempting to break off some limbs of
a master-work of sculpture which has happily come down to
us entire. 1
Mr. Webster said : " The first object of a free people is the
preservation of their liberty, and liberty is only to be pre-
served by maintaining constitutional restraints and just di-
visions of political power. Nothing is more deceptive or more
dangerous than the pretence of a desire to simplify government.
The simplest governments are despotisms ; the next simplest
limited monarchies ; but all republics, all governments of law,
must impose numerous limitations and qualifications of au-
thority, and give many positive and many qualified rights.
In other words, they must be subject to rule and regulation.
This is the very essence of free political institutions.
" The spirit of liberty is, indeed, a bold and fearless spirit ;
but it is also a sharp-sighted spirit; it is a cautious, saga-
cious, discriminating, far-seeing intelligence ; it is jealous of
encroachment, jealous of power, jealous of man. It demands
checks ; it seeks for guards ; it insists on securities ; it en-
trenches itself behind strong defences, and fortifies itself with
all possible care against the assaults of ambition and passion.
1 The speech was delivered in the Senate of the United States on the
7th of May, 1834. If I might place myself by the side of these men I
would refer the reader to the Political Ethics, where I stated that des-
potism is simple and coarse. It is like a block of granite, and may last
in its unchanging coarseness- a long time ; but liberty is organic with
all the delicate vitality of organic bodies, with development, growth and
expansion. Despotism may have accretion, but liberty widens by its
own vital power, and gains in intensity as it expands. The long duration
of some despotisms decides nothing. Longevity of states is indeed a
requisite of modern civilization, but if we must choose, who would not
prefer a few hundred years of Roman liberty to the thousands of Chinese
dreary mandarinism and despotism ? Besides, we must not forget that
a shoe once trodden down to a slipper, will always serve longer in its
slipshod capacity than it did as a shoe.
AND SELF-GOVERNMENT. 159
It does not trust the amiable weaknesses of human nature, and
therefore it will not permit power to overstep its prescribed
limits, though benevolence, good intent and patriotic purpose
come along with it. Neither does it satisfy itself with flashy
and temporary resistance to its legal authority. Far other-
wise. It seeks for duration and permanence. It looks before
and after ; and, building on the experience of ages which are
past, it labors diligently for the benefit of ages to come.
This is the nature of constitutional liberty ; and this is our
liberty, if we will rightly understand and preserve it. Every
free government is necessarily complicated, because all such
governments establish restraints, as well on the power of
government itself as on that of individuals. If we will
abolish the distinction of branches, and have but one branch ;
if we will abolish jury trials, and leave all to the judge ; if we
will then ordain that the legislator shall himself be that judge ;
and if we place the executive power in the same hands, we
may readily simplify government. We may easily bring it to
the simplest of all possible forms, a pure despotism. But a
separation of departments, so far as practicable, and the
preservation of clear lines of division between them, is the
fundamental idea in the creation of all our constitutions ; and,
doubtless, the continuance of regulated liberty depends on
maintaining these boundaries." 1
Unity of power, if sought for in wide-spread democracy,
must always lead to monarchical absolutism. Virtually it is
such ; for it is indifferent what the appearance or name may
be, the democracy is not a unit in reality ; yet actual absolut-
ism existing, it must be wielded by one man. All absolutism
is therefore essentially a one-man government. The ruler may
1 Page 122, vol. iv. of the Works of Daniel Webster. I have not
transcribed this long passage without the permission of those who have
the right to give it.
To my mind it appears the most Demosthenian passage of that orator.
Perhaps I am biased, because the extract maintains what I have always
asserted on the nature of liberty, and what has shown itself with such
remarkable clearness and undraped nakedness in the late French affairs.
160 ON CIVIL LIBERTY
not immediately take the crown ; the pear may not yet be
ripe, as Nopoleon said to Sieyes ; but it soon ripens, and then
the avowed absolute ruler has far more power than the king
whose absolute power is traditional, because the tradition itself
brings along with it some limitations by popular opinion. Of
all absolute monarchs, however, it is true that " it is the vice
of a pure (absolute) monarchy to raise the power so high and
to surround it with so much grandeur that the head is turned
of him who possesses it, and that those who are beneath him
scarcely dare to look at him. The sovereign believes himself
a god, the people fall into idolatry. People may then write on
the duties of kings and the rights of subjects ; they may even
constantly preach upon them, but the situations have greater
power than the words, and when the inequality is immense, the
one easily forgets his duties, the others their rights." 1 Change
1 Guizot, Essais, sur 1'Histoire de France, p. 359.
General Rapp, first aid of Napoleon, gives a good picture of the false
position of an absolute monarch, in his Memoirs, Paris, 1832, ch. 2. He
says that " whenever Napoleon was angry, his confidants, far from ap-
peasing him, increased his anger by their representations. ' Yonr
majesty is right,' they would say : ' such a person has merited to be
shot, or disgraced, or discarded. ... I have long known him to be your
enemy. Examples are necessary ; they are necessary for the maintenance
of tranquillity.' When it was required to levy contributions from the
enemies' country and Napoleon would perhaps ask for twenty thousand,
he was advised to demand ten more. If it was the question to levy two
hundred thousand men, he was persuaded to ask for three hundred
thousand ; in liquidating a debt which was indisputable, they would
insinuate doubts on its legitimacy, and would often cause him to reduce
to a half, or a third, and sometimes entirely, the amount of the demand.
If he spoke of making war, they would applaud the noble resolution :
war alone would enrich France ; it was necessary to astonish the world
in a manner suitable to the power of the great nation. Thus it was that
in provoking and encouraging expectations, and uncertain enterprises,
he was precipitated into continual wars. Thus it is that they succeeded
in giving to his reign a character of violence which did not belong to
him. His disposition and habits were altogether good-natured. Never
a man was more inclined to indulgence and more awake to the voice of
humanity. I could cite thousands of examples."
Whether Napoleon was good-natured or not need not be discussed
AND SELF-GOVERNMENT. 161
the terms, and nearly every word applies to absolute democra-
cies with equal truth. Aristotle says that the perfected de-
mocracy (what we would call democratic absolutism) is equal
to the tyrannis (monarchical absolutism.) 1 This is true, yet
we must add these modifications : The power of the absolute
monarch, though centered in one man, according to theory
is lent to him by those over whom he rules ; he may be brought
to an account ; but the power of an absolute democracy is fear-
ful reality, with which there is no reckoning. It strikes, and
the strikers vanish. Where shall they be impeached? Even
he who led them is shielded by the inorganic multitude that
followed him. It is felt to be heroic to oppose the absolute
monarch ; it is considered unpatriotic or treasonous to oppose
the absolute democracy, or those people who call themselves
the people.
Absolute monarchs, indeed, often allow free words. The
philosopher Kant uttered remarkable political sentiments under
Frederic the Great, and Montesquieu published his Spirit of
Laws under the auspices of Madame de Tincin, the chanoiness
mistress of the Duke of Orleans, regent of France, and succes-
sively mistress of many others. Montesquieu was favored by
these persons ; for nothing is more common than that sprightly
people have a sentimental love for the theory of liberty. But
neither Kant nor Montesquieu would have been suffered to
utter their sentiments had there been any fear whatever that
they might pass into reality. There is an immense difference
between admiring liberty as a philosophical speculation, loving
her like an imaginary beauty by sonnet and madrigal, and
uniting with her in real wedlock for better and for worse. Li-
berty is the loved wife and honored companion, through this
earthly life, of every true American and Englishman, and no
mistress for sentimental sport or the gratification of spasmodic
here, nor is it important to state that he was not so weak as represented
by Kapp ; but it is instructive to see how a man like Rapp, an uncom-
promising absolutist, unawares lays bare his own opinion of the cha-
racter of an absolute monarch, because he is absolute.
1 Pol. v. 9, 6 ; vi. 2, 12.
11
162 ON CIVIL LIBERTY.
passion, nor is she for them a misty nymph with whom a mor-
tal falls in consuming love, nor is she the antiquated portrait
of an ancestor, looked upon with respect, perhaps even with
factitious reverence, but without life-imparting actuality. l
1 Since the foregoing chapter was originally written, history has fur-
nished us with many additional and impressive illustrations of some of
its contents. Numerous French writers, anxious to vindicate for France
the leadership in the race of civilization, yet sadly aware that liberty ex-
ists no more in France, have declared that the essence of liberty exists
simply in universal suffrage, or, if they abandon even the name of liberty,
that the height of political civilization consists in two things universal
suffrage and the code Napoleon, with the proclamation of which it has
been stoutly maintained a French army would find the conquest of Eng-
land and the regeneration of Italy an easy matter. Once the principle
of universal suffrage established, the French statesmen of the imperial
school demand that everything flowing from it, by what they term severe
or uncompromising logic, must be accepted. This peculiar demand of
severe logic is, nevertheless, wholly illogical, for politics are a means to
obtain a high object, and the application to certain given circumstances
is of paramount importance. We do not build houses, cure or sustain
our bodies, by logic ; and a bill of rights is infinitely more important and
intrinsically true, than the most symmetrically logical rights of men.
The "severe logic" leads, moreover, different men to entirely different
results, as, for instance, Mr. Louis Blanc on the one hand, and the im-
perial absolutists on the other ; and, if universal suffrage, without guaran-
teeing institutions, is the only principle of importance, the question pre-
sents itself immediately, Why appeal to it on rare occasions only, perhaps
only once in order to transfer power, and what does universal suffrage
mean if not the ascertaining of the opinion of the majority ? If this be
the object, then we must further ask, Why is discussion necessary
to form the opinion suppressed, and how could Mr. de Montalembert
be charged with, and tried for, having attacked the principle of universal
suffrage in a pamphlet, the whole object of which could not be anything
else than influencing those who, under universal suffrage, have to give
their votes. This is not " severe logic."
If much has happened and been written since the original penning of
this chapter to illustrate the utter falsity of universal suffrage, naked and
pure, we must not omit to mention, on the other hand, works of merit
which have been written in a very opposite train of thought, by men of
great mark, of whom Mr. de Tocqueville deserves particular mention on
account of his Ancien Regime.
CHAPTER XV.
RESPONSIBLE MINISTERS. COURTS DECLARING LAWS UNCON-
STITUTIONAL. REPRESENTATIVE GOVERNMENT.
24. IT is not only necessary that every officer remain indi-
vidually answerable for his acts, but it is equally important that
no act be done for which some one is not responsible. This
applies in particular, so far as liberty is to be protected, to that
branch of government which directs the military. It is import-
ant, therefore, that no decree of government go forth without
the name of a responsible person ; and that the officers, or single
acts of theirs, shall be tried, when trial becomes necessary, by
regular action at law, or by impeachment ; and that no positive
order by the supreme executive, even though this be a king, as
in England, be allowed as a plea for impunity. A long time
elapsed before this principle came clearly to be established in
England. Charles I. reproved the commons for proffering their
loyalty to his own person, while they opposed his ministers, and
measures which he had personally ordered. England in this, as
in almost all else that relates to constitutional liberty, had the
start of the continent by two hundred years and more. The
same complaints were heard on the continent of Europe when
lately attempts were made to establish liberty in monarchies ;
and more will be heard when the time of new attempts shall
have arrived. Responsible ministers, and a cabinet dependent
upon a parliamentary majority, were the objects of peculiar
distaste to the present emperor of the French, as they have
been to all absolute monarchs. His own proclamations dis-
tinctly express it, and his newspapers continue to decry the
servile position of government when ministers are "in the ser-
(163)
164 ON CIVIL LIBERTY
vice of a house of representatives," 1 which means dependent
on a parliamentary majority.
In unfree countries, the principle prevails that complaints
against the act of an officer, relating to his public duty, must
be laid before his own superiors. An overcharge of duty on
imported goods cannot there be tried before a common court,
as is the case with us.
25. As a general rule, it may be said that the principle
prevails in Anglican liberty, that the executive may do that
which is positively allowed either by the fundamental or other
law, and not all that which is not prohibited. The royal pre-
rogatives of the English crown doubtless made the evolution
of this principle difficult, and may occasionally make clear
action upon it still so; but the modern development of liberty
has unquestionably tended more and more distinctly to establish
the principle that for everything the executive does there must
be the warrant of the law. The principle is of high importance,
and it need hardly to be added that it forms one of the promi-
nent elements of American liberty. Our presidents, indeed,
have done that for which many citizens believed they had no
warrant in law, for instance, when General Jackson removed
the public deposits from the bank of the United States ; but the
doubt consisted in the question whether the law warranted the
1 It is sufficiently remarkable to be mentioned here, that Napoleon III.,
when the sanguinary coup d'ttat had been perpetrated, supported his de-
mand of a cabinet exclusively dependent upon the chief of the state, by
the example of the American president, not seeing or not mentioning
that congress has a controlling power.
The following extract of a letter, written by Lord Liverpool to Lord
Castlereagh, (October 23, 1818,) and taken from Correspondence, De-
spatches, and other Papers of Viscount Castlereagh, second Marquis of
Londonderry, 12 vols., London, 1853, is interesting, if we consider how
thorough a tory minister Lord Liverpool was :
" Bathurst's despatch and letter of Tuesday, and my letter of to-day,
will put you entirely in possession of our sentiments upon the present
state of the negotiations. The Russians must be made to feel that we
have a parliament and a public to which we are responsible, and that we
cannot permit ourselves to be drawn into views of policy which are wholly
incompatible with the spirit of our government.
" Ever sincerely yours, LIVERPOOL."
AND SELF-GOVERNMENT. 165
measure or not. It was not claimed that he could do it he-
cause it was nowhere prohibited. The Constitution of the
United States declares that " the powers not delegated to the
United States by the constitution, nor prohibited by it to the
states, are reserved to the states, respectively, or to the peo-
ple ;" and the principle which I have mentioned may be con-
sidered as involved in it ; but in the different states, where the
legislature certainly has the right, as a general rule, to do all
that seems necessary for the common welfare and is not speci-
fically prohibited, the mentioned principle prevails regarding
the executive. 1
1 I have already mentioned the judgment given by the French court,
with reference to the opening of letters by the police, in order to find out
the traces of offences. I now give an extract, and shall italicize those
passages which bear upon the subject above :
" Considering that if, by the terms of existing legislation, and particu-
larly by art. 187 of the penal code, functionaries and agents of the go-
vernment, and of the post-office administration, are forbidden either to
suppress or to open letters confided to the said administration, this dis-
position cannot reach the prefect of police, acting by virtue of powers
conferred upon him by art. 10 of the Code of Criminal Instruction :
" Considering that the law, in giving to him the mission to investigate
offences, to collect evidence in support of them, and to hand their authors
over to the tribunals charged with punishing them, has not limited the
means placed at his disposition for attaining that end :*
"That, in fact, the right of perquisition in aid of judicial instructions
is solemnly affirmed by numerous legal dispositions, and that it is of
common law in this matter :
" That the seizure in question was made in order to follow the trace
of an offence ; that it resulted in the discovery of useful and important
facts ; that, finally, the authors of the said letters have been prosecuted
in a court of justice :
" Considering, moreover, that the court is not called upon to inquire
into the origin of documents submitted to its appreciation; that its mis-
sion is merely to establish their authenticity or their sincerity ; that, in
fact, the letters in question are not denied by their authors :
* Does not this argument, from the absence of restriction, remind the
reader of that Baron Viereck, who consented to his daughter's marrying the
King of Denmark, the undivorced queen living, and who replied to an ex-
postulating friend that he could find no passage in the bible prohibiting
kings of Denmark from having two wives?
166 ON CIVIL LIBERTY
26. The supremacy of the law requires that where enacted
constitutions 1 form the fundamental law there be some autho-
rity which can pronounce whether the legislature itself has or
" For these reasons the letters are declared admissible as evidence," etc.
It is pleasing to read by the side of this remarkable judgment so simple
a passage as the following, which was contained in an English paper at
the same time that the French judgment was given. It relates to a Lon-
don police regulation concerning cabmen :
" Now, we have no wish to palliate the bad conduct of a class who at
least furnish amusing topics to contemporaries. By all means let the evils
be remedied, but let the remedy come within the limits of law. It will be
an evil day for England when irresponsible legislation and police law,
even for cabmen, are recognized and applauded by a certain public be-
cause in a given example it happens to be convenient to them. If the
ordinary law is not sufficient, let it be reformed ; but do not leave the
making of penal laws to the police, and the execution of those laws to
the correctional tribunal of the same authority." Spectator, April 2,
1853.
1 They are generally called written constitutions ; but it is evident
that the essential distinction of constitutions, derived from their origin,
is not whether they are written or 'unwritten, which is incidental, but
whether they are enacted or cumulative. The English constitution, that
is the aggregate of those laws and rules which are considered of funda-
mental importance, and essential in giving to the state and its govern-
ment those features which characterize them, or those laws and institu-
tions which give to England her peculiar political organic being, consist
in cumulated usages and branches of the common law, in decisions of
fundamental importance, in self-grown and in enacted institutions, in com-
pacts, and in statutes embodying principles of political magnitude. From
these the Americans have extracted what has appeared important or appli-
cable to our circumstances; we have added, expanded and systematized,
and then enacted this aggregate as a whole, calling it a constitution
enacted, not by the legislature, which is a creature of this very constitu-
tion, but by the people. Whether the constitution is written, printed,
carved in stone, or remembered only, as laws were of old, is not the dis-
tinctive feature. It is the positive enactment of the whole at one time,
and by distinct authority, which marks the difference between the origin
of our constitutions and those of England or ancient Rome. Although
the term written constitution does not express the distinctive principle,
it was nevertheless natural that it should have been adopted, for it is
analogous to the term lex scripta, by which the enacted or statute law
is distinguished from the unenacted, grown and cumulative common
law.
AND SELF-GOVERNMENT. 167
has not transgressed it in the passing of some law, or whether
a specific law conflicts with the superior law, the constitution.
If a separate body of men were established to pronounce upon
the constitutionality of a law, nothing would be gained. It
would be as much the creature of the constitution as the legis-
lature, and might err as much as the latter. Quis custodet
custodes ? Tribunes or ephori ? They are apt to transgress
their powers as other mortals. But there exists a body of
men in all well-organized polities, who, in the regular course
of business assigned to them, must decide upon clashing in-
terests, and do so exclusively by the force of reason, according
to law, without the power of armies, the weight of patronage
or imposing pomp, and who, moreover, do not decide upon
principles in the abstract, but upon practical cases which in-
volve them the middle men between the pure philosophers
and the pure men of government. These are the judges
courts of law.
When laws conflict in actual cases, they must decide which
is the superior law and which must yield ; and as we have seen
that according to our principles every officer remains answer-
able for what he officially does, a citizen, believing that the
law he enforces is incompatible with the superior law, the con-
stitution, simply sues the officer before the proper court as
having unlawfully aggrieved him in the particular case. The
court, bound to do justice to every one, is bound also to decide
this case as a simple case of conflicting laws. The court does
not decide directly upon the doings of the legislature. It
simply decides, for the case in hand, whether there actu-
ally are conflicting laws, and if so, which is the higher law
that demands obedience, when both may not be obeyed at the
same time. As, however, this decision becomes the leading
decision for all future cases of the same import, until, indeed,
proper and legitimate authority should reverse it, the question
of constitutionality is virtually decided, and it is decided in a
natural, easy, legitimate and safe manner, according to the
principle of the supremacy of the law and the independence
of justice. It is one of the most interesting and important
168 ON ClVIL LIBERTY
evolutions of the government of law, and one of the greatest
protections of the citizen. It may well be called a very jewel
of Anglican liberty, one of the best fruits of our political
civilization. 1
27. Of all the guarantees of liberty there is none more im-
portant, and none which in its ample and manifold develop-
ment is more peculiarly Anglican, than the representative
government. Every one who possesses a slight acquaintance
with history, knows that a government by assembled estates
was common to all nations arising out of the conquests of the
Teutonic race; but the members of the estates were deputies
or attorneys sent with specific powers of attorney to remedy
specific grievances. They became nowhere, out of England
and her colonies, general representatives that is, representa-
tives for the state at large, and with the general power of
legislation. This constitutes one of the most essential differ-
ences between the deputative medieval estates, and the modern
representative legislatures a government prized by us as one
of the highest political blessings, and sneered at by the ene-
mies of liberty on the continent, at this moment, as " the
unwieldy parliamentary government." I have endeavored
thoroughly to treat of this important difference ; of the fact
that the representative is not a substitute for something which
would be better were it practicable, but has its own substan-
tive value ; of political instruction and mandates to the re-
presentatives, and of the duties of the representative, in the
Political Ethics, to which I must necessarily refer the reader.
With reference to the great subject of civil liberty, and as
one of the main guarantees of freedom, the representative
government has its value as an institution by which public
opinion organically passes over into public will, that is law;
1 The ancient justicia of Aragon had the power of declaring laws
unlawful or unconstitutional, as we call it, against the king and estates,
but it was done without the trial of a specific case and specific persons.
He was therefore simply in these cases above king and estates, that is,
king himself, and it became necessary in course of time to suppress this
feature. See Pol. Ethics, vol. ii. p. 281.
AND SELF-GOVERNMENT. 169
/
as one of the chief bars against absolutism of the executive
on the one, and of the masses on the other hand ; as the only
contrivance by which it is possible to induce at the same time
an essentially popular government and the supremacy of the
law, or the union of liberty and order; as an invaluable high
school to teach the handling and the protection, and to instil
the love of liberty ; as the organism by which the average
justice, on which all fair laws must be based, can be ascer-
tained ; as that sun which throws the rays of publicity on the
whole government with a more penetrating light the more
perfect it becomes ; and as one of the most efficacious pre-
ventives of the growth of centralization and a bureaucratic 1
government as that institution without which no clear divi-
sion of the functions of government can exist.
Before we consider the most prominent points of a repre-
sentative government, so far as it is a guarantee of liberty, it
may be proper to revert to two subjects just mentioned.
There was a time when, it seems, it was universally be-
lieved, and many persons believe still, that a representative
1 The term bureaucracy is called by many barbarous, nor has it, so
far as I know, been introduced into dictionaries of great authority. Be
it so ; but while we have innumerable words, compounded of elements
which belong to different languages, a term for that distinct idea which
is designated by the word Bureaucracy has become indispensable in the
progress of political science, because the thing which must be named
has distinctly developed itself in the progress of centralization com-
bined with writing. In spite, therefore, of the want of lexical authority,
it is almost universally used ; for necessity presses. I am under this
necessity, and shall use it until a better and more acceptable term be
proposed. Mandarinism would not be preferable. Mandarinism would
express indeed a government by mandarins, by officials, but it would
not designate the characteristics which it is intended to point out by the
term bureaucracy, namely, a government carried on, not only by a hier-
archy of officials, but also by scribbling bureaus. All bureaucracies
must be mandarinisms, I take it ; but every raandarinism need not be a
bureaucracy. I observe that the French, from whom indeed the term
has been received, freely use it, even in their best writings. It is to be
regretted that we Americans frequently use the French term Bureau for
the old term Board. There are different associations of ideas connected
with each of these words.
170 ON CIVIL LIBERTY
government is indeed a very acceptable substitute, yet only a
substitute, for a state of things which would be the perfect
one, but which it is physically impossible to obtain at pre-
sent, namely, the meeting of the people themselves, instead
of an assembly of their representatives. A secondary value
only is thus allowed to the representative system. This is a
grave error. Even were it physically or locally possible to
assemble the entire American people, and rule by the Athe-
nian pebble or procheironia, (the show of hands,) we must
still cling to the representative system as a substantive insti-
tution. The market government belongs to antiquity the
period of city-states not to our period of national states ; and
national states have not only a meaning relating to physical
extent of country.
It has been observed that the period of nationalization of
tribes toward the close of the middle ages, is one of the most
important in the progress of civilization and modern political
development, as a period of medieval disintegration and divi-
sion would be the necessary effect of denationalization. Rome
perished of a political bankruptcy, because the ancient city-
state was incompatible with an extensive empire. A represen-
tative government could alone have saved it ; for its recollec-
tions and forms of liberty prevented a full-blown centralization,
the only other form which could have given it a Russian
stability. Constantine, indeed, established a centralized court
government ; but it was then too late. The decree had gone
forth that the vessel should part amidst the breakers.
The market democracy is irreconcilable with liberty as we
love it. It is absolutism which exists wherever power, un-
mitigated, undivided and unchecked, is in the hands of any
one or any body of men. It is the opposite of liberty. The
people, which means nothing more than an aggregate of men,
require fundamental laws of restraint, as much as each com-
ponent individual does. Unless we divide the power into two
parts into the electing power, which periodically appoints
and recalls, and into the power of elected trustees appointed
to legislate, and, as trustees, are limited in their power, abso-
lutism is unavoidable. Absolutism is the negation of protec-
AND SELF-GOVERNMENT. 171
tion ; protection in its highest sense is an essential element of
liberty. 1 It is the trusteeship that gives so high a value to
the representative government. When the Athenians, trying
the unfortunate generals after the battle of Argenusae, were
reminded that they acted in direct contradiction to the laws,
they exclaimed that they were the people ; they made the laws,
why should they not have the privilege of disregarding them ?
Every one feels his responsibility far more distinctly as
trustee than otherwise. Let a man in an excited crowd be
suddenly singled out, and made a member of a committee to
reflect and resolve for that crowd, and he will feel the differ-
ence in an instant. How easy it would be to receive the most
lavish and most dangerous money grants from an undivided
and absolute multitude ! Is it necessary to remind the reader
that liberty has been lost quite as often from false gratitude
toward a personally popular man as from any other reason ?
Trustees, carefully looking around them, and conscious that
they have to give an account of themselves, are not so easily
swayed by ravishing gratitude. The trusteeship in the repre-
sentative government is the only means yet discovered to
temper the rashness of the democracy and to overcome the
obstinacy of monarchs.
How necessary for modern liberty a national 2 representa-
1 To refer to books on such a subject is very difficult ; for it almost
comprehends the whole history of modern liberty.
1 have treated on many points connected with the representative sys-
tem, in the Political Ethics. The reader will peruse with interest M.
Guizot's Histoire des Origines du Gouvernement Representatif en
Europe, Paris, 1851. It is interesting to learn the views of a French-
man of such celebrity on a subject of vital interest to us. Regarding
the deputative principle, the Histoire de la Formation et des Progres
du Tiers Etat, by Augustin Thierry, Paris, 1853, is instructive. I am
sorry that I have not been able to read Mr. George Harris's True
Theory of Representation in a State, London, 1852.
2 I take here the term National in the sense of relating to an entire
society spread over the territory of an extensive state ; and as contra-
distinguished from what belongs to a city-state, or from the system of
the middle ages, which was deputative, on the one hand, (see my Political
Ethics on Representative System,) and a system of juxtaposition rather
than of pervading organization, like the Chinese language compared to our
172 ON CIVIL LIBERTY
tive government is a representative system comprehending
the whole state, and throwing liberty over it broadcast will
appear at once, if we remember that local self-government
exists in a very high degree in many Asiatic countries, where,
however, there is no union of these many insulated self-
governments, and no state self-government, and therefore no
liberty. We shall also presently see that where there is only
a national representative government without local self-go-
vernment, there is no liberty as we understand it.
Nor must we forget two facts, which furnish us with an im-
portant lesson on this subject. Wherever estates or other
bodies have existed, no matter how great their privileges were
or how zealously they defended their liberties, civil liberty has
not been firmly established ; on the contrary, it has been lost
in the course of time, unless the estates have become united
into some national or state representative system. Where are
the liberties of Aragon, and where is the freedom of the
many Germanic polities ? It was one of the greatest political
blessings of England that favorable circumstances promoted
an early national fusion of the estates into two houses. On
the other hand, we find that those governments which can no
longer resist the demand of liberty by the people, yet are bent
on yielding as little as possible, always have tried as long as was
feasible to grant provincial estates only. Some monarchs of
this century have shown a real horror of national representa-
tion, and would rather have periled their crown than granted
it ; yet some of these monarchs have readily granted an
urban self-government of considerable extent. Their minis-
ters and servants have frequently gone so far as to extol local
self-government and to proclaim the idea that liberty consists
far more in the "administration" being left to the people,
than in any general representative government. In doing so,
grammatical languages. In this sense, then, the government of Vir-
ginia or New York would be national, although we use the word in
America as synonymous with federal. It were well if we could adopt a
distinct term for national in the first sense. See the note at the end of
this chapter.
AND SELF-GOVERNMENT. 173
they pointed to countries in which the latter, existing alone,
had brought no real liberty. Asia, as was before stated, fur-
nishes us with innumerable instances of local self-government,
which are there neither a source nor a test of liberty. 1 True
liberty stands in need of both, and of a bona fide representa-
tive government largely and minutely carried out. 2
1 A curious picture of Asiatic local self-government, without any
liberty, has lately been given to the public, in Lieutenant-colonel C. G.
Dixon's Sketch of Maiwara, giving a brief Account of the Origin and
Habits of the Mairs, etc., London, 1851.
2 National representation is closely connected with the idea of coun-
try, indispensable for high modern civilization. Nations and Countries
appear to me so much elements of modern civilization and of modern
liberty that I may be permitted to give an extract relating to this topic,
from my Inaugural Speech in 1858 :
" Our government is a federal union. We loyally adhere to it and
turn our faces from centralization, however brilliant, for a time, the
lustre of its focus may appear, however imposingly centred power, that
saps self-government, may hide for a day the inherent weakness of mi-
litary concentrated polities. But truths are truths. It is a truth that
modern civilization stands in need of entire countries ; and it is a truth
that every government, as indeed every institution whatever, is, by its
nature, exposed to the danger of gradually increased and, at last, exces-
sive action of its vital principle. One-sidedness is a universal effect of
man's state of sin. Confederacies are exposed to the danger of sejunc-
tion as unitary governments are exposed to absorbing central power
centrifugal power in the one case, centripetal power in the other. That
illustrious predecessor of ours, from whom we borrowed our very name,
the United States of the Netherlands, ailed long with the paralyzing
poison of sejunction in her limbs, and was brought to an early grave
by it, after having added to the stock of humanity the worshipful
names of William of Orange, and de Witt, Grotius, de Ruyter and Wil-
liam III.* There is no German among you that does not sadly remember
* Every historian knows that William of Orange, the founder of the Nether-
lands' republic, had much at heart to induce the cities of the new union
to admit representatives of the country; but the "sovereign" cities would
allow no representatives to the farmers and landowners, unless noblemen,
who, nevertheless, were taking their full share in the longest and most san-
guinary struggle for independence and liberty; but the following detail,
probably, is not known to many. The estates of Holland and West Fries-
land were displeased with the public prayers for the Prince of Orange, which
some high-calvanistic ministers were gradually introducing, in the latter
half of the seventeenth century, and in 16C3 a decree was issued ordaining
174 ON CIVIL LIBERTY.
that his country, too, furnishes us with bitter* commentaries on this
truth ; and we are not exempt from the dangers common to mortals.
Yet as was indicated just now, the patria of us moderns ought to con-
sist in a wide land covered by a nation, and not in a city or a little
colony. Mankind have outgrown the ancient city-state. Countries are
the orchards and the broad acres where modern civilization gathers her
grain and nutritious fruits. The narrow garden-beds of antiquity suf-
fice for our widened humanity no more than the short existence of
ancient states. Moderns stand in need of nations and of national lon-
gevity, for their literatures and law, their industry, liberty and patriot-
ism ; we want countries to work and write and glow for, to live and to
die for. The sphere of humanity has steadily widened, and nations
alone can now-a-days acquire the membership of that great common-
wealth of our race which extends over Europe and America. Has it
ever been sufficiently impressed on our minds how slender the threads
are that unite us in a mere political system of states, if we are not tied
together by the far stronger cords of those feelings which arise from the
consciousness of having a country to cling to and to pray for, and un-
impeded land and water roads to move on ?
Should we, then, not avail ourselves of so well proved a cultural
means of fostering and promoting a generous nationality, as a compre-
hensive university is known to be ? Shall we never have this noble
pledge of our nationality ? All Athens, the choicest city-state of anti-
quity, may well be said to have been one great university, where masters
daily met with masters ; and shall we not have even one for our whole
empire, which does not extend from bay to bay like little Attica, but
from sea to sea, and is destined one day to link ancient Europe to still
older Asia, and thus to help completing the zone of civilization around
the globe? All that has been said of countries and nations and a
national university would retain its full force even if the threatened
cleaving of this broad land should come upon us. But let me not enter
on that topic of lowering political reality, however near to every citizen's
heart, when I am bidden by you to discourse on political philosophy,
and it is meet for me not to leave the sphere of inaugural generalities.
to pray first of all "for their noble high mightinesses, the estates of Hol-
land and West Friesland, as the true sovereign, and only sovereign power
after God, in this province ; next, for the estates of the other provinces,
their allies, and for all the deputies in the assembly of the States General,
and of the Council of State."
"Separatismus," as German historians have called the tendency of the
German princes to make themselves as independent of the empire as pos-
sible, until their treason against the country reached " sovereignty," has
made the political history of Germany resemble the river Rhine, whose glo-
rious water runs out in a number of shallow and muddy streamlets, having
lost its imperial identity long before reaching the broad ocean.
CHAPTER XVI.
REPRESENTATIVE GOVERNMENT CONTINUED. BASIS OF PRO-
PERTY. DIRECT AMD INDIRECT ELECTIONS.
28. THE prominent points of a national representative
government, considered as a guarantee of liberty, consist in
the representative principle, that is, the basis of representation
and the right of voting for the representative, in the election
laws, in the fact that those who have the right to vote do vote,
(hence the importance, and, I believe, the necessity of regis-
tration laws,) and in the organization of the representative
legislature, with its own protection and liberties.
All that we can say regarding the requirements of Anglican
liberty with reference to the principle of representation, is that
it be a broad or popular one. Universal suffrage cannot be
said to be an Anglican principle,' whatever the American view,
of which we shall treat by and by, may be. The application
of the principle of a wide popular representation, however, or
an extensive right of voting, has constantly though slowly ex-
panded in England, and continues to be expanding. 1
The English, not allowing universal suffrage or indeed a
representation based upon numbers alone, require some limit
beyond which the right of voting shall no.t go. This limit is,
as a general rule, which has however its exceptions, indicated
either by property or by a certain annual expense which
usually designates the amount of income over which man may
dispose, namely, house-rent. Hence it is often said that pro-
perty is the basis of representation in England. This is not
correct. Property, or the enjoyment of a certain revenue
1 For the historic development of the English representative govern-
ment it will hardly be necessary to refer the reader to Hallam's History
of the English Constitution.
(175)
176 ON CIVIL LIBERTY
either from acquired property or from an industrial occupa-
tion, gives the right of voting, but it is not the basis of repre-
sentation.
When it is maintained in modern times that property ought
to be the basis of representation, or it is asserted that the
English constitution is founded on property, an inappropriate
term is used, which carries along with it erroneous associations,
in almost all discussions on this subject. When we say that
population is the basis of representation, we mean indeed that
one representative is chosen for a distinct number of repre-
sented citizens, and that therefore a large population should
have more representatives than a small one; but when it is
said that property is or ought ' to be the basis of representa-
tion, we mean in almost all cases nothing more than that a
certain amount of property or revenue is required to entitle a
man to vote. The Roman constitution ascribed to Servius
Tullius was really founded upon property, because the six
classes of citizens actually took a share in the government of
the state in proportion to the property they held. Thus like-
wise there is a partial representation of property prescribed
by the constitution of South Carolina, for the composition of
the state senate, inasmuch as the small but wealthy divisions
of the lower part of the state elect a number of senators
disproportionately large compared to the number of senators
sent from the upper districts of the state, which are very
populous and possessed of proportionately less property. This
was at least the case when the constitution was adopted. 1
What is really meant when it is said that a constitution
ought to be founded on property, is this : that a minimum
amount of property ought to be adopted as the last line be-
yond which no suffrage ought to be granted, but not that a
capital of a million or the possession of a thousand acres of
land ought to be entitled to a greater share in government
than the possession of a few thousand dollars. It is meant
1 Those votes which are given in England, according to rate-paying, in
local matters, are indeed votes founded on property and industrial pur-
suits.
AND SELF-GOVERNMENT. 177
that we seek for a criterion which will enable us to distinguish
those who have a fair stake in the welfare of the state from
those who have not. But here occurs at once the question :
Is this criterion in our age any longer safe, just, and natural,
which it may be supposed to have been in former ages ? Are
there not thousands of men without property who have quite
as great a stake in the public welfare as those who may. possess
a house or enjoy a certain amount of revenue ? This criterion
becomes an actual absurdity when by property landed pro-
perty only is understood. It was indeed in the middle ages
almost the exclusive property of lasting and extensive value ;
but nothing has since changed its character more than pro-
perty itself. This whole question is one of vastest extent,
and emphatically belongs to the science of politics and real
statesmanship. In regard to the subject immediately in hand,
we have only to repeat that an extensive basis of representa-
tion is doubtless a characteristic element of Anglican liberty.
29. As important as the basis of representation indeed,
in many cases more important is the question whether there
shall be direct elections by the people, or whether there shall
be double elections ; that is to say, elections of electors by the
constituents, which electors elect the representative. It may
be safely asserted that the Anglican people are distinctly in
favor of simple elections. Elections by electing middle men
deprive the representation of its directness in responsibility
and temper ; the first electors lose their interest, because they
do not know what their action may end in ; no distinct candi-
dates can be before the constituents, and be canvassed by
them, and, inasmuch as the number of electors is a small one,
intrigue is made easy.
The fact that a double or mediate election foils in a great
degree the very object of a representative government, is so
well known by the enemies of liberty, that despotic govern-
ments, unable to hold their absolute power any longer, have
frequently struggled hard to establish universal suffrage with
double election. An intention to deceive, or a want of ac-
quaintance with the operation of the principle must explain
12
178 ON CIVIL LIBERTY
the measure. 1 I believe that neither American nor English-
man would think the franchise worth having were double
elections introduced, and so decidedly is the simple election
ingrained in the Anglican character, that in the only notable
case in which a mediate election is prescribed in America,
namely, the election of the President of the United States,
the whole has naturally and of itself become a direct election.
The constitution is obeyed, and electors are elected, but it is
well known for which candidate the elector is going to vote,
before the people elect him. There is but one case of old
date in which an elector, elected to vote for a certain candi-
date for the presidency, voted for another, and his political
character was gone for life ; while in the month of November,
1856, the legislature of South Carolina, the only legislature
in the United States which has retained for itself the election
of presidential electors, actually "instructed" the electors to
vote for Mr. Buchanan, and in the state of Pennsylvania
committees belonging to different parties or sections of parties
agreed upon certain "Union Electoral Tickets" for the elec-
tion of electors, to satisfy the claims of the different voters.
These instances, and many more might be given, show how
the principle of a double election has been wholly abandoned
in the election for the president, although the form still exists.
Civil liberty demands a fair representative system; the
latter requires that the representatives really represent the
people, which is by no means necessarily obtained by simple
universal suffrage. Indeed it is one of the highest problems
of political philosophy on the one hand and of genuine states-
manship on the other, to establish, combine, and, as circum-
stances may require, to change the basis of representation.
In England we find that a large number of persons lately
urged an additional " representation of education." Essential
representation requires a fair representation of the minority, 2
1 According to the present constitution of Prussia (1859) there is
universal suffrage for the election of a certain number of electors, and
in addition a graduated property qualification for the election of other
electors, who with the former elect representatives.
2 See Political Ethics on Opposition and Representatives.
AND SELF-GOVERNMENT. 179
which, until now, has been obtained, in the system of Anglican
liberty, by making election districts sufficiently small, so that
persons of different political opinions would be elected, and by
discountenancing "general tickets." It might be supposed
that the most consistent method, opposite to the "general
ticket," would be to make election districts so small that each
elects but one person, as the present constitution of the state
of New York prescribes ;* but practice, it seems, does not bear
out this supposition in the mentioned state. When election
districts are very small, many citizens whom it is most desira-
ble to see in the legislature decline contending with paltry
local interests and jealousies. And here it maybe mentioned,
that a marked difference between England and America con-
sists in the fact, that in the first-mentioned country voters
may take their representative from any portion of the coun-
try, while in America the principle prevails, we believe uni-
versally, that the representative must be a resident in his
constituency, which is an additional reason that election dis-
tricts ought not to be too narrow.
But the idea of representing the minority in a . more direct
manner, than by a minority in the house of representatives,
has been much discussed of late in England, and, to judge
from the journals of the day, there seem to be many persons,
who believe that this could best be obtained, by obliging each
voter to vote for a number of representatives, less than the whole
number, to be sent to parliament, for instance, for two mem-
bers, if three are to be sent three, or for three, if five are to be
sent. This novel feature seems to have been actually adopted
in some colonial constitutions. No one is able to say how such
a principle may operate in certain conditions of the voters,
but, as a general principle, it would seem injudicious, inope-
rative toward the desired object, and not Anglican. 2 Another
1 1859.
2 This principle has been adopted in oar country for the purpose of
electing election managers, where the very purpose is to elect two men
of opposite parties. The Pennsylvania election law of 1839 decrees :
Section 4: Each of such qualified citizens shall vote for one person as
judge, and also for one person as inspector of elections, and the person
180 ON CIVIL LIBERTY
method was adopted to secure the representation of the mino-
rity, in the so-called Ruatan Warrant, in 1856. In this
instrument every voter received the right to give, if four re-
presentatives are to be elected, all four votes to one person,
or three to one and one to another, or to cast his four votes in
equal halves for two persons. 1 This is legalizing, and indeed
intensifying, the voting of " plumpers," 2 as it is vulgarly called
having the greatest number of votes for judge shall be publicly declared
to be elected judge ; and the two persons having the greatest number of
votes for inspectors shall, in like manner, be declared to be elected
inspectors of elections.
1 The queen's warrant for erecting the island of Ruatan and certain
other islands in the bay of Honduras into a colony, under the name of
Bay Islands has this provision :
" Every elector, qualified as aforesaid, shall be entitled to give three
votes, and shall be entitled at his discretion to give such three votes to
three separate candidates, or to give two of such votes, or all of them,
to one candidate." This, an English writer continues, " provides for a
full representation of a respectable minority in the colony." It seems,
on the contrary, that the effect would soon be of electing only one in-
stead of several representatives.
2 A plumper is a ballot with a less number of names, than places to
be filled. A relative and great advantage is thus given to the persons
voted for. As to the Ruatan principle, it can be easily shown that two
out of three representatives might be elected by the minority. Suppose
there are eleven voters, of whom 2 give " plumpers" for (opposition,)
2 the same for M (also opposition,) 6 regular tickets for 3 administra-
tion members each, and one voting 2 votes for and one for J/, we
would have
...... 8 votes.
M ...... 7 votes.
each majority member 6 votes.
The constitution proposed by the British ministers for Australia in
1858, has also the provision that in districts entitled to three members,
the elector shall vote for two candidates only ; if entitled to five mem-
bers, for three only ; and if entitled to seven members, for four only.
An uneven number of representatives is assigned to each district, for
this purpose. I cannot say whether this constitution has been adopted.
Two members might be elected by half a dozen of votes, in districts all
but unanimous.
This principle will probably attract much attention for some time to
come, and it may be sufficiently interesting, therefore, to record that, in
AND SELF-GOVERNMENT. 181
in this country, a kind of voting generally considered unfair
and dishonest, and which it would be just and right to provide
against by our constitutions. Each ballot ought to contain as
many names as representatives are to be voted for ; if not, it
ought to be thrown out.
It does not seem to be the Anglican principle to elect with
the representative, his substitute, in case of absence of the
former from the legislature. If a representative resigns or
dies, another is elected ; if he absents himself, the constituents
lose his vote. It seems that representation is considered too
direct a relation to admit of a substitute beforehand. Yet
for conventions it is customary in America to elect substitutes.
They do not allow of sufficient time for a new election. On
the continent of Europe, suppUans are immediately elected. 1
As a matter of historical curiosity I would direct attention
to the circuitous ways and multiplied elections by which it
was frequently attempted in the middle ages, to insure an
impartial or pure election. The master of the Knights of
Malta was elected by no less than seventeen consecutive elec-
tions of electors, each election connected with oaths ; 2 and the
Doge of Venice was elected by nine different acts, namely, five
England, it is ascribed to M. G. L. Craik, professor of history in Queen's
College, Belfast. He published his plan in 1836, in the Companion to
the Newspaper. Soon after he learned from Mr. Coleridge that Mr.
Praed had suggested a similar idea. The subject has since been dis-
cussed in the periodicals. In 1854 Mr. Craik published an interesting
Letter in the Belfast Mercury on the same subject.
It may be mentioned here that at this period (February, 1859.) when
a new Reform Bill is much discussed in England, some reformers pro-
pose as an enlargement of the franchise and an avoidance of universal
suffrage, of which they see such uninviting consequences in France, a
franchise on the rate-paying principle, which would give to some voters,
by way of franchise, more votes than to another a principle adopted in
the English town government.
1 We elect substitutes for executive officers. The Roman custom
was to take, in case of need, the predecessor of the failing incumbent, a
principle adopted, at least in former times, in Geneva and other cities.
2 Vertot's History of the Knights of Malta, folio edition, Londcn.
1728 ; vol. ii. Old and New Statutes.
182 ON CIVIL LIBERTY
elections alternating with four acts of drawing lots, 1 with the
addition of collateral votings.
30. The representative principle farther requires that the
management of the elections be in the hands of the voters, or
of a popular character ; that especially the government do not
interfere with them, either in the election bureau itself, or by
indecently proposing and urging certain candidates ; that the
house for which the candidates are elected be the sole judge of
the validity of the election, and that the opening of the poll
do not depend upon the executive, which by mere omission
might prevent the entire election in order to exclude a dis-
tasteful citizen from the house.
The beginning of an election, the appointment of managers,
the protection of the minority in this matter, and the con-
scientious counting of votes, where the ballot exists, are always
matters of much interest and of great practical difficulty, to
all those who have not traditionally learned it. Collections of
election laws are therefore very instructive ; and the labor of
giving birth to an election with nations unaccustomed to liberty
is very great. Mr. Dumont gives some instructive and amusing
anecdotes, relating to the first French elections, in his Memoirs
of Mirabeau.
The English law is that all the military must leave the
place where an election is going on, and can only enter it
when called in by the town authorities or the justices of the
peace, in case of riot.
The British house of commons is the sole judge of the
validity of elections ; and the same is declared for the house of
representatives by the American constitution. 2
One of the gravest charges against the Duke of Polignac
and his fellow-members of the cabinet, when they were tried
for their lives after the revolution of 1830, was that they had
1 Daru, Histoire de Venise ; Paris, 1821, vol. i.
* A full statement of all the laws relating to these guarantees in Eng-
land will be found in Stephens's De Lolme, Rise and Progress of the
British Constitution ; and Story's Commentaries on the Constitution of
the United States gives our constitutional law on these subjects.
AND SELF-GOVERNMENT. 183
allowed or induced Charles X. to influence certain electors, by
letter, to elect government candidates ; while the government
under the late so-called republic openly supported certain
persons as government candidates, and bishops wrote then, and
have since sent solemn pastoral letters, calling on their flocks
to elect men of certain political color. It is wholly indifferent
to decide here whether peculiar circumstances made this inter-
ference necessary. I simply maintain that it is not liberty.
31. Representative bodies must be free. This implies that
they must be freely chosen, neither under the threat or violence
of the executive, nor of the rabble or whatever portion of the
people; 1 that when met, they are independent of the threat
or seduction of the executive, or of the mob, armed or not
armed ; that they are protected by the law as a representative
body ; and that a wise parliamentary law and usage protect,
within the body, the rights of each representative and the
elaboration of the law.
Representative legislatures cannot be truly the organisms
through which public opinion passes into public will, nor can
they be really considered representative bodies, if the mem-
bers, or at least the members of the popular branch, be not
elected for a moderately short period only ; if the legislature
does not sit frequently; if the elections for the popular branch
are not for an entire renewal of the house ; and if the member
is made answerable for what he says in the house to any one
or any power besides the house to which he belongs.
1 Fearful cases to the contrary have happened in France and our own
country. In the former country a court of justice decided against a
person, because not being the government candidate he had dared to
print and distribute his own ticket. Mr. de Montalembert made a speech
against the abuse, whereupon the minister of the Interior, Mr. Billault,
formerly a socialist, issued a circular to the prefects, instructing them,
April, 1857, how to conduct themselves regarding the distribution of
election tickets. In our country sanguinary troubles have occurred in
New Orleans and Baltimore, in October, 1857, which called forth pro-
clamations of the governors that revealed a frightful state of things.
And these crimes at elections were not restricted to the two mentioned
cities.
184 ON CIVIL LIBERTY
What a moderately short period, or the frequency of sessions
means, cannot, as a matter of course, be absolutely stated.
Fairness and practice, as well as the character of the times,
must necessarily settle these points. England had a law
that, from the year 1696, each parliament should not last
longer than three years, but in 1716, the septennial bill was
carried, under a whig administration, forced to do it by the
intrigues of the tories, who were for bringing back the
Stuarts. This law has ever since prevailed, but even Pitt
called it, in 1783, one of the greatest defects in the sys-
tem of popular representation. Chatham, his father, had
expressed himself against it 1 before him, and it would really
seem that England will return, at no distant time, to a shorter
period of parliaments. 2
When Count Villele, in 1824, was desirous of diminishing
the liberal spirit of the French charter, he introduced and
carried a septennial bill, which was, however, abolished in 1830
by the "July Revolution." Parliaments for too short a pe-
riod would lead to a discontinuous action of government, and
unsettle instead of settling ; hence, they would be as much
against liberty as too long ones. In America, two years has
become a pretty generally adopted time for the duration of
legislatures. It is a remarkable fact that the people in
America feel so perfectly safe from attacks of the executive
that, in several states, where the constitutions have been
revised, a fundamental law has been enacted that the legisla-
ture shall not meet more often than every two years. This
is to avoid expense and over-legislation. The general principle
remains true that "parliaments ought to be held frequently,"
as the British Declaration of Rights and Liberties enacts it.
The Constitution of the United States makes the meeting and
dissolution of congress entirely independent of the executive,
1 Volume ii. page 174, of Correspondence of William Pitt, Earl of
Chatham.
2 I have given a sufficiently long account of the Septennial Bill, under
this head, in the Encyclopaedia Americana.
AND SELF-GOVERNMENT. 185
and enacts that congress shall meet at least once in every
year, on the first Monday in December, and that the house of
representatives shall be entirely renewed every second year.
As to the irresponsibility of members for their remarks in
parliament, the declaration of rights enacts " that the freedom
of speech, and debates or proceedings in parliament, ought not
to be impeached or questioned in any court or place out of
parliament." This was adopted by the framers of our con-
stitution, in the words that " for any speech or debate in either
house, they (senators and representatives) shall not be ques-
tioned in any other place." 1
32. A farther and peculiar protection is granted to the
members of the legislature, both in the United States and in
England, by protecting them against arrest during session, ex-
cept for certain specified crimes. The English house of com-
mons " for the first time took upon themselves to avenge their
own injury, in 1543, " 2 when they ordered George Ferrers, a
burgess who had been arrested in going to parliament, to be
released, and carried their point. " But the first legislative
recognition of the privilege was under James I." 3 The Con-
stitution of the United States enacts that senators and repre-
sentatives shall " in all cases, except treason, felony, and
breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in
going and returning from the same."
1 Free discussion on all things, appearing important to the represen-
tatives, is a right which was obtained after hard struggles, and only in
comparatively recent times. Elizabeth repeatedly warned the commons
in no gentle terms, not to meddle with high matters of state, which they
could not understand. James I. and Charles I. did the same.
A similar spirit is now visible on the continent of Europe in unfree or
half-free countries. In the bed of justice, held in 1602, Louis XIV. then
fourteen years old, forbade his parliament to deliberate on government
and finances or upon the conduct of the ministers of his choice, and for-
bade its members to assume too sumptuous habits in the palaces of the
great. Chevenix, on Nat. Charact, vol. ii. p. 510.
2 Hallam, Hist, of English Constitution, 5th edit. vol. i. p. 268.
3 Ibidem, vol. i. p. 303,
186 ON CIVIL LIBERTY
33. It is farther necessary that every memher possess the
initiative, or right to propose any measure or resolution. This
is universally acknowledged and established where Anglican
liberty exists, not by enactment, but by absence of prohibition,
and as arising out of the character of a member of the legis-
lature itself. In most countries, not under the aegis of Angli-
can liberty, this right of the initiative has been denied the
members, and government, that is, the executive, has reserved
it to itself. So has the so-called legislative corps of the
present French empire no initiative. Napoleon III. took it
to himself exclusively, immediately after the coup d'e'tat.
The French legislative corps has indeed not even the privi-
lege of amendment; it has not the right of voting on the
ministerial estimates, except on the whole estimate of one
ministry at once. 1 In some countries, as in France under the
charter of the July revolution, the initiative is vested in the
houses and in government ; that is to say, the government, as
government, can propose a measure through a minister, who
is not a member of the house. In England no bill can be
proposed by the executive as such, but as every cabinet minis-
ter is either a peer or must contrive to be elected into the
commons, the ministers have of course the right of the initia-
tive as members of their respective houses. The Constitution
of the United States prohibits any officer of the United States
from being a member of either house, and the law does not
allow the members of the administration a seat and the right
to speak in the houses. Some think that a law to that effect
ought to be passed. The representatives of our territories are
in this position ; they have a seat in the house of representa-
tives, and may speak, but have no vote. A minister had the
right to speak in either house, under the former French char-
ters, in his capacity of cabinet minister, whether he was a
member of the house or not. Whenever the executive of the
United States is desirous to have a law passed, the bill must
1 Why, indeed, it is called legislative corps does not appear. Legis-
lative corpse would be intelligible.
AND SELF-GOVERNMENT. 187
be proposed by some friend of the administration who is a
member of one or the other house.
It has been mentioned already that the initiative of money
bills belongs exclusively to the popular branch of the legisla-
ture, both in the United States and in England, by the
constitution in the one, and by ancient usage, which has
become a fundamental principle, in the other.
CHAPTER XVII.
PARLIAMENTARY LAW AND USAGE. THE SPEAKER. TWO
HOUSES. THE VETO.
34. IT is not only necessary that the legislature be the sole
judge of the right each member may have to his seat, but
that the whole internal management and the rules of proceed-
ing with the business belong to itself. It is indispensable that
the legislature possess that power and those privileges which
are necessary to protect itself and its own dignity, taking
care, however, that ' this power may not, in turn, become an
aggressive one.
In this respect are peculiarly important the presiding officer
of the popular branch or speaker, the parliamentary law, and
the rules of the houses.
The speaker of the English commons was in former times
very dependent on the crown. Since the revolution of 1688,
his election may be said to have become wholly independent.
It is true, that the form of obtaining the consent of the mo-
narch is still gone through, but it is a form only, and a change
of the administration would unquestionably take place, were
the ministers to advise the crown to withhold its consent.
Were the refusal insisted on, disturbances would doubtless
follow, which would end in a positive declaration and distinct
acknowledgment on all hands, that the choice of the speaker
"belongs, and of right ought to belong," to the house of com-
mons. There is no danger on that score in England, so long
as a parliamentary government exists there at all. The
growth of the commons' independence in this respect is as
interesting a study as it is historically to trace step by step
any other expanding branch of British liberty.
(188)
ON CIVIL LIBERTY. 189
The Constitution of the United States says that " the house
of representatives shall choose their speaker and other offi-
cers," and so chosen, he is speaker, without any other
sanction.
The charter granted by Louis XVIII. of France, pre-
scribed that "the president of the chamber of deputies is
nominated by the king from a list of five members presented
by the chamber." This was altered by the revolution of
1830, and the charter then adopted decreed that "the presi-
dent of the chamber of deputies is to be elected by the
chamber itself at the opening of each session." It need not
be added that, according to the " constitution of the empire,"
the emperor of the French simply appoints the president of
the "legislative corps." In all the states of the Union the
speakers are within the exclusive appointment of the houses.
In the British colonial legislatures, the speaker must be con-
firmed by the governor, but, as was observed of the speaker
of the commons, if consent be refused it would be a case of
disagreement between the administration and the legislature,
which must be remedied either by a new administration or a
new house that is, new elections.
The presiding officer of the upper house is not made thus
dependent upon it. In England, the chief officer of the law,
the lord chancellor or keeper of the seals, 1 presides over the
1 A keeper of the seals, whom usage does not require to be a peer, is
now appointed as the chief officer of the law, only when for some reason
or other no lord chancellor is appointed. The keeper of the seals, never-
theless, presides in the house of lords, or " sits on the woolsack." The
chancellor is now always made a peer if he is not already a member of
the house of lords, and he is always a member of the cabinet. This
mixture of a judicial and political character is inadmissible according to
American views ; yet it ought to be remembered as an honorable fact,
that no complaint of partiality has been made in modern times against
any lord chancellor in his judicial capacity, although he is so deeply
mixed up with politics. Lord Eldon was probably as uncompromising,
and, perhaps, as bigoted a politician as has ever been connected with
public affairs, but I am not aware that any suspicion has existed on this
ground against his judicial impartiality. There is at present a traditional
190 ON CIVIL LIBERTY
house of peers. There seems to be a growing desire in Eng-
land wholly to separate the lord chancellor from the cabinet
and politics. At present he is always a member of the
administration, and, of course, leaves his office when the cabi-
net to which he belongs goes out. It will be an interesting
subject to determine who shall preside over the lords, if the
change thus desired by many should take place.
The United States senate is presided over by the Vice-
President of the United States, who is elected by the Union
at large, as the president is. It must be observed, however,
that neither the chancellor on the woolsack, nor the Vice-
President of the United States, as president of the senate,
exercises any influence over their respective legislative bodies,
that can in any degree be compared to that of the speakers
over their houses. The American senate and the British
house of lords allow but very little power in regulating and ap-
pointing, to the presiding officer, who interferes only when
called upon to do so. 1
The power of the houses of parliament over persons that
are not members, or the privileges of parliament, or of either
house, so far as they affect the liberty of individuals and the
support of their own power, constitute what is called parlia-
mentary law an important branch of the common law. Like
all common law, it consists in usage and decisions ; there are
fund of uncompromising judicial rectitude in England which has never
been so great at any other period of her own history, or excelled in any
other country.
1 This difference in the position of the presiding officers appears, among
other things, from the fact that the members of the house of lords ad-
dress "My lords," and not the chancellor, while usage and positive rules
demand that the member of the other house who wishes to speak, shall
address " Mr. Speaker," and receive " the floor" from him. The chan-
cellor would only give the floor if appealed to in case of doubt. In the
United States senate, the president of the senate is, indeed, directly ad-
dressed, although occasionally "senators" have been addressed in the
course of a speech. That body, however, appoints its committees, and
leaves little influence to the presiding officer, who, it will be remembered,
is not a member of the senate, and has a casting vote only.
AND SELF-GOVERNMENT. 191
doubtful points as well as many firmly settled ones. It
must be learned from works such as Hatsell's Precedents, etc.,
Townsend's History of the House of Commons, and others.
As a general remark, it may be stated that, with the rise of
liberty in England, the jealousy of the house of commons also
rose, and continued during the period of its struggle with the
executive ; and that, as the power of the house has become
confirmed and acknowledged, the jealousy of the house has
naturally abated. I very much doubt whether at any earlier
period the committee of privileges would have made the same
declaration which it made after Lord Cochrane, in 1815, had
been arrested by the marshal of the king's bench, while sitting
on the privy councillor's bench in the . house of commons,
prayers not yet having been read. The committee declared
that "the privileges of parliament did not appear to have
been violated so as to call for the interposition of the house." 1
The two American houses naturally claim the " power of
sending for persons and papers and of examining upon oath,"
and they have also exercised the power of punishing disturb-
ances of their debates by intruders, and libellers of members
or whole houses. But no power to do so is explicitly conferred
by the Constitution of the United States. 2
1 I would refer the general reader, on this and kindred subjects, to the
article Parliament, in the Political Dictionary; London, 1846.
2 This is not the place for discussing the doubts which some have en-
tertained regarding the power of the houses of congress to do that which
is possessed by every court of justice, though the lowest, namely, to arrest
and punish disturbers. The doubt is simply on the ground that it has
not been conferred. But there are certain rights which flow directly
from the existence of a thing itself, and some that are the necessary
consequence of action and life, and without which neither can manifest
itself. A legislative body without the power of sending for persons to
be examined by committees, would be forced to legislate, in many cases,
in the dark. It is true, that legislative bodies have become tyrannical ;
but it must not be forgotten that wherever, in the wide range of history,
any struggle for liberty has taken place, we find that a struggle to esta-
blish the habeas corpus principle has always accompanied it, and that
this struggle for securing personal liberty is always against the execu-
192 ON CIVIL LIBEKTY
Of far greater importance is the body of the rules of
procedure and that usage which has gradually grown up as a
part of common law, hy which the dispatch of parliamentary
business and its protection against impassioned hurry are
secured, and by which the order and freedom of debate,
fairness, and an organic gestation of the laws are intended to
be obtained. The development of parliamentary practice, or
rules of proceeding and debate, such as it has been developed
by England, independently of the executive, and like the rest
of the common law, been carried over to our soil, form a most
essential part of our Anglican constitutional, parliamentary
liberty. This practice, as we will call it for brevity's sake, is
not only one of the highest importance for legislatures
themselves, but serves as an element of freedom all over the
country, in every meeting, small or large, primary or not. It
is an important guarantee of liberty, because it serves, like
the well-worn and banked bed of a river, which receives the
waters that, without it, would either lose their force and use, by
spreading over plains, or become ruinous by their impetuosity
when meeting with obstruction. Every other nation of
antiquity and modern times has severely suffered from not
having a parliamentary practice such as the Anglican race
possesses, and no one familiar with history and the many
attempts to establish liberty on the continent of Europe or in
South America, can help observing how essentially important
that practice is to us, and how it serves to ease liberty, if we
may say so. 1
live. I do not remember a single case of an established and separate
guarantee of personal liberty against parliamentary violence.
The reader is referred to Mr. Justice Story's Comm. on the Const.
U. S., chap, xii., and to Chancellor Kent's Commentaries.
1 The ancients had no parliamentary law and usage.. The Greek agora
could of course not have it. Mass meetings cannot debate ; they can only
ratify or refuse proposed measures. It is the same in the democratic
Swiss cantons, where the people meet in primary assemblage. See Po-
litical Ethics. In the Roman senate was no debating proper. There
was rather a succession of set speeches, and I may be permitted to state
here that in debating oratory, in replying on the spot, vigorously and
AND SELF-GOVERNMENT. 193
It is not a French "reglement," prescribed by the execu-
tive with but little room for self-action; nor does it permit
legislative disorder or internal anarchy. It has been often
observed that the want of parliamentary practice created infi-
nite mischief in the first French revolution. Dumont mentions
that there was not even always a distinct proposition before
the convention; and the stormiest sessions, which frequently
ended by the worst decrees the dtcrets d' acclamation were
those in which there were speeches and harangues without
propositions. Sir Samuel Romilly 1 says : " If one single rule
had been adopted, namely, that every motion should be reduced
into writing in the form of a proposition before it was put from
the chair, instead of proceeding, as was their constant course,
by first resolving the principle as they called it (decreter le
principe,) and leaving the drawing up of what they had so
resolved (or, as they called it, la redaction) for a subsequent
clearly to an adversary, the best orators of the last and present centuries
are greatly superior to the ancients.
Since the publication of the first edition, an American senator, Mr.
Edward Everett, has added his testimony to the vital importance of An-
glican parliamentary rules. On December 8, 1853, when resolutions
with reference to the late Yice-President of the United States, (and,
therefore, presiding officer of the senate,) W. Eufus King, were under
discussion, Mr. Everett observed, in the course of his remarks :
"In fact, sir, he was highly endowed with what Cicero beautifully
commends as the boni Senatoris prudentia, the ' wisdom of a good sena-
tor ;' and in his accurate study and ready application of the rules of par-
liamentary law, he rendered a service to the country, not perhaps of the
most brilliant kind, but assuredly of no secondary importance. There
is nothing which so distinguishes the great national race to which we
belong, as its aptitude for government by deliberative assemblies ; its
willingness, while it asserts the largest liberty of parliamentary right, to
respect what the senator from Virginia, in another connection, has called
the self-imposed restrictions of parliamentary order ; and I do not think
it an exaggeration to say that there is no trait in their character which
has proved more canducive to the dispatch of the public business, to the
freedom of debate, to the honor of the country I will say even which
has done more to establish and perpetuate constitutional liberty."
1 He was himself of unmixed French descent, as Lord Brougham ob-
serves, although his family had resided for generations in England.
13
194 ON CIVIL LIBERTY
operation, it is astonishing how great an influence it would
have had in their debates and on their measures." 1
The great importance of the subject and the general
superiority of the English parliamentary practice have been
acknowledged by French writers, practically acquainted with
it ; especially by the author of a work the full title of which I
shall give in a note, because it shows its interesting contents. 2
Foreigners frequently express their surprise at the ease with
which, in our country, meetings, societies, bodies, communities,
and even territories 3 self-constitute and organize themselves ;
and transact business without violence, and without any force
in the hands of the majority to coerce the minority, or in the
hands of the minority to protect itself against the majority.
One of the chief reasons of this phenomenon is the universal
familiarity of our people with parliamentary practice, which
may be observed on board of any steamboat where a number
of persons, entire strangers to one another, proceed to pass
some resolution or other, and which they learn even as chil-
1 Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit. vol. i. p. 103.
2 A Treatise on the Formation of Laws, (Traite de la Confection des
Lois,) or an Inquiry into the Rules (Reglements) of the French Legisla-
tive Assemblies, compared with the Parliamentary Forms of England,
the United States, Belgium, Spain, Switzerland, etc., by Ph. Vallette,
Advocate, etc., and Secretary of the Presidency of the Chamber of Depu-
ties, and by Benat Saint-Martin, Advocate, etc., 2d edit., Paris, 1839 ;
with the words of Mr. Dupin, who long presided over the chamber, as
motto, " The excellence of laws depends especially upon the care taken
in the elaboration of the bills. The drawing up of laws constitutes a
large share of their efficiency."
8 As a striking instance may be mentioned the whole procedure of the
people of Oregon, when congress omitted to organize the territory, and
ultimately " Organic Laws" were adopted "until such time as the United
States of America extend their jurisdiction over us." They were printed
by the senate, May 21, 1846, and, although consisting of a few pages only,
form a document of great interest to the political philosopher in more
than one respect. A French statesman of mark wrote to the author,
years ago, from Algeria : " I wish your way of organizing distant terri-
tories, or of allowing themselves to organize, could be transplanted to
this colony." Justice requires to add now (1859) that our Kansas
troubles had not then occurred.
AND SELF-GOVERNMENT. 195
dren. There are few schools the members of which have not
formed some debating society, in which parliamentary forms
are observed, and in which the rigorously enforced fine im-
presses upon the boy of ten or eleven years the rules which
the man of forty follows as naturally as he bows to an ac-
quaintance. 1
The Constitution of the United States says that " each house
may determine the rules of its proceedings, punish its members
for disorderly behavior, and, with the concurrence of two- thirds,
expel a member." If, however, the parliamentary practice had
not already been spread over the colonies, like the common
law itself, this power, justly and necessarily conferred on each
house, would have been of comparatively little advantage.
Parliamentary practice that ars obstetrix animarum, as Mr.
Bentham calls it, although it ought to be called the obstetric
art of united bodies of men, for in this lies the difficulty is
not a thing to be invented nor to be decreed, but must be
developed. 2
1 An excellent book of its kind is the small work of Judge L. S. Gush-
ing, Rules of Proceeding and Debate in Deliberative Assemblies, Boston,
Mass. It has gone through many editions. The same author published
in 1855, Law and Practice of Legislative Assemblies in the United
States.
2 Mr. Jeremy Bentham's Tactique des Assemblies Legislative, edited
by E. Dumont, Geneva, 1816, is no pure invention, and could have been
written by an Englishman or American only.
See also Mr. Jefferson's Manual of Parliamentary Practice for the use
of the senate of the United States.
There is a very curious book, Parliamentary Logic, etc., by Right
Hon. W. Gerard Hamilton, (called in his time Single-Speech Hamilton,)
with considerations on the Corn Laws, by Dr. Samuel Johnson ; London,
1808. The copy which I own belonged to Dr. Thomas Cooper. That
distinguished man has written the following remark on the fly-leaf:
" This book contains the theory of deception in parliamentary debate :
how to get the better of your opponent, and how to make the worse ap-
pear the better reason. It is the well-written work of a hackneyed poli-
tician The counterpart to it is the admirable tract of Mr.
Jeremy Bentham on Parliamentary Logic, the book of Fallacies. No
politician ought to be ignorant of the one book or the other. They are
well worth (not perusing, but) studying. T. C."
196 ON CIVIL LIBERTY
It is not only a guarantee of the free share of every repre-
sentative in the legislatio n of his country, but it is also, as has
been indicated, a guarantee, for the people, that its legislature
remain in its proper bounds, and that the laws be not decreed
as the effects of mere impulse or passion.
It is a psychological fact that whatever interests or excites
a number of separate individuals will interest or excite them
still more when brought together. They countenance one
another ; and that psychical reduplication which, for bad or
good, produces so great an effect wherever individuals of the
same mind or acting under the same impulse come in close
contact, must be guarded against in representative assemblies.
Parliamentary practice, as we possess it, is as efficient a means
to calm and to regulate these excitements, as the laws of evi-
dence and the procedure of courts are in tempering exciting
trials and impassioned pleadings.
These remarks may fitly conclude with the words of Judge
Story, which he uttered when he left the speaker's chair of the
Massachusetts house of representatives, to take his seat on
the bench of the supreme court of the United States. They
ought to be remembered by every one on both sides of the
Atlantic that prizes practical and practicable liberty :
" Cheered, indeed, by your kindness, I have been able, in
controversies, marked with peculiar political zeal, to appreciate
the excellence of those established rules which invite liberal
discussions, but define the boundary of right, and check the
intemperance of debate. I have learned that the rigid enforce-
ment of these rules, while it enables the majority to mature
their measures with wisdom and dignity, is the only barrier of
the rights of the minority against the encroachments of power
and ambition. If anything can restrain the impetuosity of
triumph, or the vehemence of opposition if anything can
awaken the glow of oratory, and the spirit of virtue if any-
thing can preserve the courtesy of generous minds amidst the
rivalries and jealousies of contending parties, it will be found
in the protection with which these rules encircle and shield
every member of the legislative body. Permit me, therefore,
AND SELF-GOVERNMENT. 197
with the sincerity of a parting friend, earnestly to recom-
mend to your attention a steady adherence to these venerable
usages." 1
35. If parliamentary practice is a guarantee of liberty by
excluding, in a high degree, impassioned legislation, and aiding
in embodying, in the law, the collective mind of the legislature,
the principle of two houses, or the bicameral system, as
Mr. Bentham has called it, is another and no less efficient
guarantee.
Practical knowledge alone can show the whole advantage of
this Anglican principle, according to which we equally discard
the idea of three and four estates, and of one house only.
Both are equally and essentially un-Anglican. Although,
however, practice alone can show the whole advantage that
may be derived from the system of two houses, it must appear,
nevertheless, as a striking fact to every inquirer in distant
countries, that not only has the system of two houses histo-
rically developed itself in England, but it has been adopted
by the United States, and all the states as well as by the
single territories, and by all the British colonies, where
local legislatures exist. We may mention even the African
state of Liberia. The bicameral system accompanies the
Anglican race like the common law, 2 and everywhere it suc-
ceeds ; while no one attempt at introducing the unicameral
system, in larger countries, has so far succeeded. France,
Spain, Naples, Portugal, in all these countries it has been
tried, and everywhere it has failed. The idea of one house
flows from that of the unity of power, so popular in France.
The bicameral system is called by the advocates of democratic
unity of power an aristocratic institution. This is an utter
mistake. In reality it is a truly popular principle to insist on
1 Life and Letters of Joseph Story ; Boston, Mass., 1851, vol. i. p. 203.
2 No instance illustrating this fact is perhaps more striking than the
meeting of settlers in Oregon territory, when congress had neglected
to provide for them, as has been mentioned in a previous note. The
people met for the purpose of establishing some legislature for them-
selves, and at once adopted the principle of two houses. It is to us as
natural as the jury.
198 ON CIVIL LIBERTY
the protection of a legislature divided into two houses ; and as
to the historical view of the question, it is sufficient to state
that two houses have been insisted upon and rejected by all
parties, aristocratic and popular, according to the circum-
stances of the times. In this the principle resembles the
instruction of the representative by his constituents. This
too has been insisted on and rejected by all parties at different
periods.
Attempts were made in our earlier times to establish a sin-
gle house, for instance in Pennsylvania, 1 but the practical and
sober sense of the Anglican people led them back to the two
houses. The danger was perhaps not trifling. " During the
American revolution, there grew up a party in every state
who, ignorant of this great political truth, opposed the notion
that our state constitutions should be conformed to the English
model. No less a person than Dr. Franklin was of this party.
And through his influence, in a great measure, Pennsylvania
adopted a government of a single legislative assembly. When
he went to Paris, he took with him the different American
constitutions. Mr. Turgot, to whom he showed them, disre-
garding, as Dr. Franklin had done, the voice of history, ap-
proved that of Pennsylvania, and condemned those framed
after the English constitution. In a letter to Dr. Price of
England, Mr. Turgot says : ' I am not satisfied with the
constitutions which have hitherto been formed for the different
states of America. By most of them, the customs of England
are imitated without any particular motive. Instead of col-
lecting all authority into one centre, that of the nation, they
established different bodies, a body of representatives, a coun-
cil, and a governor, because there is in England, a house of
commons, a house of lords, and a king. They endeavored to
balance three different powers, as if this equilibrium, which in
1 It was at the period when Dr. Franklin asked why people would
put horses not only before, but also behind the wagon, pulling in oppo-
site directions? The true answer would have been, that whenever a
vehicle is pulled down an inclined plane we actually do employ an
impeding force to prevent its being dashed to pieces.
AND SELF-GOVERNMENT. 199
England may be a necessary check to the enormous influence
of royalty, could be of any use in republics founded upon the
equality of all the citizens, and as if establishing different
orders of men was not a source of divisions and disputes.'
This notion of a single national assembly began to gain
ground so rapidly in America, that the elder Adams, in order
to counteract it, in the beginning of the year 1787 published
his Defence of the American Constitutions. In the September
of the same year, the national convention changed the federal
constitution from the single assembly of the confederacy, to a
government formed after the English model. Pennsylvania
changed her government also ; and all the states and territo-
ries of this vast confederacy have now governments framed on
the plan of the English." 1
Mr. de Lamartine pronounced the true reason why -we
ought to hold fast to the bicameral system, although he spoke
against it. When in the last French constituent assembly
Mr. Odillon Barrot had urged with ability the adoption of two
houses, Mr. de Lamartine replied that the great principle
of unity (he meant, no doubt, of centralization) required the
establishment of one house, and that, unless the legislature
was vested in one house alone, it would be too difficult to make
it pass over from a simple legislature to an assembly with
1 I have quoted this long passage from the First Report of the Com-
missioners, appointed by the General Assembly of Maryland, to revise,
simplify and abridge the Rules of Practice, Pleadings, etc. in the courts
of the State, Frederic City, Md., 1855 a work important also with
reference to the subject of codification. This first report is believed to
have been written by Mr. Samuel Tyler, one of the commissioners, a
gentleman alike distinguished as advocate and writer on philosophy.
His last work on the Progress of Philosophy in the Past and the Future,
entitles, him to a place among the profoundest writers on philosophy.
His friend, the late Sir William Hamilton, acknowledged his great
merits.
The reader is referred to de Tocqueville's Ancien Regime for nume-
rous passages, showing how general the error of Turgot was in France,
and how sincerely the Anglican diversity, necessarily accompanying
self-government, was disrelished by the French, profoundly worshipping,
not only unity of power, but also uniformity of action.
200 ON CIVIL LIBERTY
dictatorial power. This is precisely the danger to be avoided. 1
Parliamentary practice and the two-house system are subjects
of such magnitude that it is impossible here, where they are
mentioned as gurantees, to enter upon details; but I cannot
dismiss them without recommending them to the serious and
repeated attention of every one who may have looked upon
them as accidents rather than essentials. The French acknow-
ledge as the first thing to be obtained, power, force ; and their
philosophical writers, such as Rousseau, seek, almost exclu-
sively, a philosophical or legitimate source of that power.
Hence their view of universal suffrage, and the power, be that
of an all-powerful Caesar, or of a concentrated single cham-
1 The speech was delivered on the 27th September, 1848. Mr.de La-
martine speaks of a division of the sovereignty into two parts, by two
houses ! Poor sovereignty ! What strange things have been imagined
under that word ! If the reader can find access to that speech, I advise
him to peruse it, for it is curious from beginning to end, especially as
coming from a person who for a time was one of the rulers of France.
His exact words are these. Speaking of domestic dangers, he says : " To
such a danger you must not think of opposing two or three powers.
That which ought to oppose it, is a direct dictatorship, uniting within its
hand all the powers of the state." He adds more of the kind, but this
extract will suffice.
Mr. Lamartine committed another grave error. He said that two
houses in the United States were natural, because we are a confederacy,
and the senate was established to represent the states as such. But he
seems not to have been aware that all our states, in their unitary cha-
racter, have established the same system, and that it is as natural to
the men on the shores of the Pacific as to those in Maine, or to the
settlers on the Swan River.
I ought in justice to add, however, that in 1850 Mr. de Lamartine
said, in his Counsellor of the People, that he was now for two houses,
and that he had been for one house in 1848 because he wanted a dicta-
torial power ; and, added he, La dictature ne se divise pas. But how
can a dictatorship be called undivided, when it belongs to a house com-
posed of eight hundred members? And must not, in the nature of
things, a division of execution always take place? It is surprising that
something temporarily desired for a dictatorship should have been in-
sisted upon by Mr. Lamartine with so much vehemence as an integral
part of the fundamental law, or was peradventure the constitution of
1848 intended not to last?
AND SELF-GOVERNMENT. 201
ber, all-providing and all-penetrating, when once established,
arising out of it. Hence the prosecution of Mr. de Monta-
lembert, as having attacked the legitimate power of the empe-
ror, when he had written against the French view of universal
suffrage. The Anglicans seek, first of all, for freedom, for
self-government; and then for guarantees of these.
Experience has proved to the English and Americans that
to have a measure discussed entirely de novo by a different
set of men, with equal powers, and combined upon a different
basis that this, and the three readings, with notice and leave
of bringing in, and the going into committee before the third
reading, have a wonderful effect in sifting, moderating, dis-
covering, and in enlightening the country. Take the history
of any great act of parliament or congress, and test what has
been asserted. This effect of two houses, and the rules of
procedure just mentioned, are indeed like so many pillars to
the* fabric of liberty.
The question has been asked, why should there be two
chambers ? What philosophical principle is there enshrined
in this number ? All we would answer is, that it has been
found that more than one house is necessary, and more than
two is too many. Three and even four houses belong to the
.medieval estates and to the deputative, not to the modern na-
tional representative system. The mischief of three houses is
as great as that of three parties. The weakest becomes the
deciding one by a casting vote. And one house only belongs
to centralization. It is incompatible with a government of a
co-operative or concurrent character, which we hold to be the
government of freedom.
I cannot agree with the opinion expressed by Lord Broug-
ham in his work on Political Philosophy, that it is essentially
necessary that the composition of the two houses should be
based upon entirely different principles, meaning that the one
ought not to be elective, and that it ought to represent
entirely different interests. A thorough discussion of this
subject belongs to the province of politics proper, but I ask the
reader's indulgence for a few moments.
202 ON CIVIL LIBERTY
If the two houses were elected for the same period, and by
the same electors, they would amount in practice to little more
than two committees of the same house ; but we want two
bona fide different houses, representing the impulse as well as
the continuity, the progress and the conservatism, the onward
zeal and the retentive element, innovation and adhesion, which
must ever form integral elements of all civilization. One house,
therefore, ought to be large; the other, comparatively small,
and elected or appointed for a longer time. Now, as to the
right of sitting in the smaller or upper house, of longer dura-
tion, there are different modes of bestowing it. It may be
hereditary, as the English peers proper are hereditary; or the
members may have seats for life, and in their personal capa-
city, as the French peers had under the charter. This is pro-
bably the worst of all these methods. It gives great power to
the crown and keeps the house of peers in a state of submission,
which hereditary peers generally do not know. Or, again, the
members may be elected for life by a class, as Scottish repre-
sentative peers are elected by the Scottish nobility for the
British house of peers ; or the members may be similarly elected
for one parliament alone, as the Irish peers are that sit in par-
liament ; or the people may elect senators for life, or for a shorter
time, as the senators of Belgium, and all the senators in our
state, are ; or, lastly, the members of the house we are speaking
of may be elected, not by the people in their primary capacity,
but by different bodies, such as our senators of congress are.
The senators of the United States are elected by the states, as
states, consequently an equal number of representing senators
is given to each state irrespective of its size or population.
It would be very difficult to pronounce the one or the other
principle absolutely the best, without references to circum-
stances, and we are sure that Lord Brougham would be the
last man that would maintain the absolute necessity of having
a hereditary peerage wherever two houses exist. As to the dif-
ferent classes, or interests, however, which ought to be repre-
sented, I would only state that the idea belongs to the middle
ages, and, if adopted, would lead at once to several estates
AND SELF-GOVERNMENT. 203
again. It is hostile to the idea of two houses only. Why re-
present the different interests of the nation in two houses ?
Are there not more broad, national interests ? It would be
difficult indeed to understand why the land-owner in present
England should have his house and not the manufacturer, the
merchant, the wide educational interest, the sanitary interest,
the artisan, the literary interest, with the journalism. The ex-
cellence of the bicameral system in our representative (and not
deputative) government does not rest on the representation of
different interests, but on the different modes of composing
the houses and their different duration.
On the other hand, we may observe that, when in 1848 the
French established a legislature of "one house, they found
themselves obliged to establish, by the constitution, a council
of state, as the Athenians established the council (boule) to aid
the general assembly (ecclesia.) The French know, instinc-
tively if not otherwise, that a single house of French repre-
sentatives would be exposed to the rashest legislation. The
council of state, however, is not public, the members are ap-
pointed by the executive ; in one word, what was gained ?
Much indeed was lost.
Whether the representative is the representative of his
immediate constituents or of the nation at large, whether he
ought to obey instructions sent him by his constituents on
these and other subjects connected with them I have treated
at great length in my Political Ethics. I shall simply men-
tion here the fact that civil liberty distinctly requires that the
representative be the representative of his political society at
large, and not of his election district. The idea that he
merely represents his immediate constituents is an idea which
belongs to the middle ages and their deputative system, not
to our far nobler representative system. The representative
is not a deputy sent with simple powers of attorney, as the
deputy of the middle ages was.
36. I hesitate whether I ought to enumerate the Veto as an
Anglican guarantee of liberty. I hold it to be in our political
system a check upon the legislature, and therefore a protec-
204 ON CIVIL LIBERTY
tion of the citizen ; one that can be abused, and probably has
been abused; but everything intrusted to the hands of man
may be abused. The question concerns its probable average
operation.
Although the veto is thus acknowledged to be an important
part of our polity, it may be said no longer to exist in England.
It has been mentioned before, that should parliament pass a
bill from which the ministers believe the royal assent ought to
be withheld, they would not, according to the present usage,
expose the king to an open disagreement with the lords and
commons, but they would resign, upon which an administra-
tion would be formed which would agree with parliament ; or
parliament would be dissolved, and an " appeal to the coun-
try" would be made.
Yet we have received the veto from England, and it is all
these considerations which make me hesitate, as I said before,
to call the veto an Anglican guarantee.
The use of the veto can become very galling, and at such
times we often find the party whose favorite measure has been
vetoed vehemently attacking the principle itself. It was thus
the whigs in the United States that earnestly spoke and wrote
against the principle, when General Jackson declined giving
his assent to some measures they considered of great import-
ance, and the democrats were loud in favor of the veto power
because it had been used by a president of their own party.
In treating this whole subject much confusion has arisen
from the ill-chosen word veto, after the term used by the Ro-
man tribune. The veto of the Roman tribune and the so-
called modern veto are not the same. The tribune could veto
indeed. When a law was passed he could wholly or partially
stop its operation, by the tribunitial auxiHum, the personal
prevention of the action of magistrates in particular cases. To
this was added, at a later period, the intercessio, by which the
tribune could prevent a decree of the senate or a rogation be-
fore the comitia from becoming a law. The dispensatory power
claimed by the Stuarts would have been the full veto power.
The chief of the state in the United States or England, how-
AND SELF-GOVERNMENT. 205
ever, has no such power. The law, so soon as it is law, says to
every one : Hands off. What we call the veto power, is in re-
ality a power of an abnuent character, and ought to have been
called the declinative. But this declinative is possessed in a
much greater degree by each house against the other. To
make a bill a law the concurrence of three parties is re-
quired that of the two houses and the executive, and this
concurrence may be withheld as a matter of course, otherwise
it would not be concurrence.
It is a wise provision in our constitution which directs that
a bill not having received the president's approval, neverthe-
less passes into a law if two-thirds of congress adhere to the
bill. Many of our state constitutions do not require the con-
currence of the executive. This is not felt in many cases as
an evil, because the action of the states is limited, but in my
opinion it would be an evil day when the veto should be taken
from the President of the United States. It would be the
beginning of a state of things such as we daily observe with
our South American neighbors. The American conditional
veto is in a great measure a conciliatory principle with us, as
the refusal of supplies is of an eminently conciliatory character
in the British polity.
The only case in which our executives have a real vetitive
power, is the case of pardon, and most unfortunately it is
used in an alarming degree, against the supremacy of the law
and the stability of right both essential to civil liberty. I
consider the indiscriminate pardoning, so frequent in many
parts of the United States, one of the most hostile things,
now at work in our country, to a perfect government of law.
In the only case, therefore, in which we have a full veto power,
we ought greatly to modify it. 1
1 I shall append a paper on pardoning a subject which has become
all-important in the United States.
CHAPTER XVIII.
INDEPENDENCE OF THE JUDICIARY. THE LAW, JUS, COMMON
LAW.
37. ONE of the main stays of civil liberty, and quite as im-
portant as the representative principle, is that of which the
independence of the judiciary forms a part, and which we shall
call the independence or the freedom of the law of jus and
justice. 1 It is a great element of civil liberty and part of a
real government of law, which in its totality has been developed
by the Anglican tribe alone. It is this portion of freemen
only, on the face of the earth, which enjoys it in its entirety.
In the present case I do not take the term law in the sense
in which it was used when we treated of the supremacy of the
law. I apply it now to everything that may be said to belong
to the wide department of justice. I use it in the sense in
which the Anglican lawyer takes it when he says that an
opinion, or decision, or act is or is not law, or good law an
adaptation of the word peculiar to the English language. It
is not the author's fault that Law must be taken in one and
the same essay, in which philosophical accuracy may be ex-
pected, in two different meanings.
The word law has obtained this peculiar meaning in our
language, otherwise so discriminating in terms appertaining
to politics and public matters, chiefly from two reasons. The
1 The lack of a proper word for jus, in the English language, induced
me to use it on a few occasions in the Political Ethics. The Rev. Dr.
W. Whewell, some years later, seems to have felt the same want, adopt-
ing in his work on the Elements of Morality, including Polity, London,
1845, the vrordjural, first used in the Political Ethics, where a note ex-
plains why I was compelled to form the word.
(206)
ON CIVIL LIBERTY. 207
first is the serious inconvenience, arising from the fact that
our tongue has not two terms for the two very distinct ideas
which in Latin are designated hy Lex and Jus, in French by
Lois and Droit, in German by Gesez and Recht ; the second is
the fact, of which every Anglican -may be proud, that the
English jus has developed itself as an independent organism,
and continues to do so with undiminished vitality. It is based
upon a common law, acknowledged to be above the crown in
England, and to be the broad basis of all our own constitu-
tions a body of law and " practice," in the administration
of justice, which has never been deadened by the superinduc-
tion of a foreign and closed law, as was the case with the
common law of those nations that received the civil law in a
body as authority for all unsettled cases. The superinduction
of the Latin language extinguished, in a manner not wholly
dissimilar, the living common languages of many tribes, or
dried up the sources of expansive and formative life contained
in them.
The independence of the judges is a term happily of old
standing with all political philosophers who have written in our
language; but it will be seen that the independence of the
judiciary, by which is meant generally a position of the judge
independent of the executive or legislative, and chiefly, his
appointment for life, or immovability by the executive, and
frequently, the prohibition of a decrease or increase of his
salary after his appointment has taken place that this inde-
pendence of the judiciary forms but a part of what I have been
obliged to call the far more comprehensive Independence of
the Law. 1
i When therefore I published a small work on this subject, during my
visit to Germany, in 1848, 1 called it Die Unabhangigkett der Justiz
oder die Freiheit des Rechts, Heidelberg, 1848. Literally translated,
this would be The Independence of Justice and Freedom of the Law.
Justiz in German, however, does not mean the virtue justice, but the
administration of justice ; and Recht means, in this connection, jus, not
a single jus, but the body of rights and usages, laws and legal practice
of a people.
208 ON CIVIL LIBERTY
The independence of the law, or the freedom of the jus, in
the fullest and widest sense, requires a living common law, a
clear division of the judiciary from other powers, the public
accusatorial process, the independence of the judge, the trial
by jury, and an independent position of the advocate, These
subjects will be treated in the order in which they have been
enumerated here.
A living common law is, as has been indicated, like a living
common language, like a living common architecture, like a
living common literature. It has the principle of its own or-
ganic vitality, and of formative as well as assimilative
expansion within itself. It consists in the customs and usages
of the people, the decisions which have been made accordingly
in the course of administering justice itself, the principles
which reason demands and practice applies to ever-varying
circumstances, and the administration of justice which has
developed itself gradually and steadily. It requires, there-
fore, self-interpretation or interpretation by the judiciary
itself, the principle of the precedent and "practice" ac-
knowledged as of an authoritative character, and not merely
winked at; and, in general, it requires the non-interference
of other branches of the government or any dictating power.
The Roman law itself consisted of these elements and was
developed in this manner so long as it was a living thing.
The common law acknowledges statute or enacted law in
the broadest sense, but it retains its own vitality even with
reference to the lex scripta in this, that it decides by its own
organism and upon its own principles, on the interpretation of
the statute when applied to concrete and complex cases. All
that is pronounced in human language requires constant
interpretation, except mathematics. 1 Even if the English
law should be codified, as at this moment the question of
codification has been brought before parliament, the living
1 Hence the peculiar power and the peculiar narrowness of the branch.
I have treated of this subject, and the unceasing necessity of interpreta-
tion, at the beginning of my Principles of Interpretation and Construc-
tion in Law and Politics, Boston, 1839.
AND SELF-GOVERNMENT. 209
common law would lose as little of its own inherent vigor and
expansiveness, as it has lost in Massachusetts or New York by
the "Revised Statutes" of those states. The difference be-
tween such a code in England and the codes which have
been promulgated on the continent of Europe, would .always
consist in this, that the English digest would have a retro-
spective character. It would be the garnering of a crop ; but
the living orchard is expected to bear new fruits, while it was
the pronounced intention of the promulgators of continental
codices to prevent interpretation, for which end it was ordained
analogously to the rule of the civil law, that recourse should
be had in all doubtful cases to the legislator, that is, to the
emperor or king, or to the officer appointed by the monarch
for that purpose. 1
1 I cannot avoid referring again to my work on the Principles of
Interpretation and Construction in Law and Politics, where this subject
is repeatedly treated of, as it forms one of vital importance in all law.
liberty, politics and self-government. I have given there instances of
prohibited commenting and even lecturing, in the universities, on the
codes. This is the pervading spirit of the civil law as it was adopted
by modern nations. It is a necessary and combined consequence of the
principle contained in the Justinian code itself, namely, that the emperor
is the executive, legislator and all ; that, therefore, no self-development
of the law, such as had indeed produced the Roman jus, could any longer
be allowed ; and of the fact that the Roman law was adopted as a finished
system from abroad. The principle of non-interpretation by the courts
prevails for the same reasons in the canon law. I give the following as
an interesting instance :
The bull of Pope Pius IV., 26 January, 1564, sanctioning and pro-
claiming the canons and decrees of the Council of Trent, contains also
the prohibition to publish interpretations and dissertations on these
canons and decrees. The words of the bull, which correspond exactly
to the authority reserved by government concerning the understanding
of the law, where codes have been introduced, and the common law
principle is not acknowledged, are these :
" Ad vitandam praiterea perversionem et confusionem, (\ux oriri pos-
set, si unicuique liceret, prout ei liberet, in decreta Concilii commen-
taries et interpretationes suas edere, Apostolica auctoritate inhibemus
omnibus ne quis sine auctoritate nostra audeat ullos commentaries,
glossas, admonitiones. scholia, ullumve interpretationis genus super
14
210 ON CIVIL LIBERTY
Judge Story has very clearly expressed what a code, with
reference to the English law, ought to be. He says : "Not-
withstanding all that is said to the contrary, I am a decided
friend to codification, so as to fix in a text the law as it is,
and ought to he, as far as it has gone, and leave new cases to
furnish new doctrines as they arise and reduce these again at
distant intervals into the text." 1
Locke, on the other hand, expresses the view which is almost
ipsius Concilii decretis, quocunque modo, edere, aut quidquam quocun-
que nomine, etiam sub praetexta majoris decretorum corroberationis, aut
executionis, aliove quaeestio colore, stattiere."
The papal bull goes on declaring that if there be any obscurity in the
decrees the doubter shall ascend to the place which the Lord has ap-
pointed, viz., the apostolic see, and that the pope will solve the doubts.
1 Life and Letters of Judge Story, vol. i. p. 448. The necessity of
proper codification has appeared more and more clearly to the English
mind, since the work was first published, and many preparatory steps
have been taken. In the month of August Lord Chancellor Cranworth
presented a report to the lords of which he said, that in the first place,
a list had been prepared of all the statutes not obsolete, nor for tem-
porary and local but for general purposes, which have been passed since
Magna Charta. The number is 16,000; but, taking away 5300 repealed
or virtually repealed, a number besides those which relate to Scotland or
Ireland exclusively, and 3900 which the commissioners have not determined
on, there remain, say 2500 acts for consolidation ; and these have been
analyzed. As there is some difference of opinion as to the best mode
of consolidation, specimens on different principles had been prepared ;
and one of these, a digest of the law of distress for rent, was in the re
port. Mr. Coode, he says, has completed a digest of the poor-laws. What
Lord Cranworth then proposed was to see whether the whole of the
provisions relating to one subject might not be put into one statute.
Each of the commissioners had been requested to take a subject and
frame a scheme of consolidation with that view.
A very interesting speech on this and cognate topics, was made in
February, 1856, in the house of commons, by Mr. Napier, attorney-
general of Ireland, on the introduction of his motion :
" That, in the opinion of this house, as a measure of administrative
reform, provision should be made for an efficient and responsible depart-
ment of public justice, with a view to secure the skilful preparation and
proper structure of parliamentary bills, and promote the progressive
amendment of the laws of the United Kingdom."
AND SELF-GOVERNMENT. 211
always taken by philosophers who stop short with theory and
do not add the necessary considerations of the statesman and
friend of practical liberty, when he proposed the following
passage in the constitution he drew up for South Carolina :
" Since multiplicity of comments as well as of laws have great
inconvenience, and serve only to obscure and perplex, all
manner of comments and expositions, on any part of these
fundamental constitutions, or on any part of the common or
statute laws of Carolina, are absolutely prohibited." 1
This is quite as strong as the Bavarian code or the pope's
decree, mentioned in a previous note. The fact is simply
this : on the one hand analyzing and systematizing are at-
tributes of humanity, and development, growth, assimilation
and adaptation are the very elements of life. Man has to lay
out his road between the two, and will, naturally, incline more
to the one or the other according to the bias of his mind or
the general course of reasoning common to his peculiar science
or profession.
If interpretation, which takes place when the general rule
is applied to a real case, is not left to the law itself, the
law ceases to have its own life, and the citizen ceases strictly
to live under the law. He lives under the dictating or inter-
fering power, because each practical case, that is, each time
that the rule passes over from an abstraction into a reality, is
subject to that power, be it, as it generally is, the execu-
tive or the legislative. This does not exclude what is called
authentic interpretation, or interpretation by the legislature
itself, for future cases. Accurately speaking, authentic inter-
pretation is no interpretation, but rather additional legislation.
We would distinctly exclude, however, retrospective authentic
interpretation ; for this amounts, indeed, to an application of
the law by the legislature, and is incompatible with a true
government of law. It is obvious that the same holds with
reference to all power, whether monarchical or popular. The
Locke's Constitution for South Carolina, 1669, paragraph 80.
212 ON CIVIL LIBERTY
law must be the lord and our "earthly god," and not a man,
a set of men, or the multitude.
As to the principle of the precedent, it is one of the ele-
ments of all development, contradistinguished from dictation and
mere command. Everything that is a progressive continuum
requires the precedent. A precedent in law is an ascertained
principle applied to a new class of cases, which in the variety
of practical life has offered itself. It rests on law and reason,
which is law itself. It is not absolute. It does not possess
binding power merely as a fact, or as an occurrence. If that
were the case, Anaximander would have been right when he
said that Themis was standing by the throne of Alexander to
stamp with right and justice whatever he did. Nor is it un-
changeable. A precedent can be overruled. But again, it
must be done by the law itself, and that which upsets the pre-
cedent cannot otherwise than become, in the independent life
of the law, precedent in turn. 1
The continental lawyers have a great fear of the precedent,
but they forget that their almost worshipped Roman law itself
was built up by precedent. Indeed, they do not comprehend
the nature of the precedent, its origin and its power, as an
element of a free jus. They frequently point to the fact that
the most tyrannical acts of the Stuarts were founded upon
real or presumed precedents, and that crown lawyers helped
in the nefarious work ; but they forget that British liberty was
also rescued from despotism in a great measure by lawyers
resting on the common law. Nothing gave to the popular
party more strength than the precedent. On this particular
subject, and on the nature of the precedent and the distinction
of the legal from the executive precedent, as well as the emi-
nent danger of regarding a mere fact as a precedent, I have
1 Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of
Cases overruled, doubted, or limited in their application, taken from
American and English Reports. Several subsequent editions liave been
published, with additions, for which Dr. Greenleaf, however, has declared
himself irresponsible.
AND SELF-GOVERNMENT. 213
fully treated in two other works. 1 The present work does not
permit me to enter more fully on the subject, or to repeat what
I have there said. A truth of the weightiest importance it
remains, that liberty and steady progression require the prin-
ciple of the precedent in all spheres. It is one of the roots
with which the tree of liberty fastens in the soil of real life,
and through which it receives the sap of fresh existence. It
is the weapon by which interference is warded of. The princi-
ple of the precedent is eminently philosophical. The English
constitution would not have developed itself without it. What
is called the English constitution consists of the fundamentals
of the British polity laid down in custom, precedent, deci-
sions, and statutes ; and the common law in it is a far greater
portion than the statute law. The English constitution is
chiefly a common law constitution, and this reflex of a con-
tinuous society in a continuous law is more truly " philosophi-
cal," than the theoretic and systematic but lifeless constitutions
of recent France.
Every idea has its caricature, and the more unfailingly so,
the more actively and practically the idea is working in real
life. It is, therefore, natural that we should meet with cari-
catures of the precedent especially in England, as the English
have been obliged to build up slowly and gradually that system
of liberty and the independence of the law, which we have
carried over to this country in a body, and which we have far-
ther developed. When we read that at every opening of a new
parliament a committee of the commons proceeds lantern in
hand to the cellar under the house, to see whether no modern
Guy Fawkes has collected combustibles there for the purpose of
exploding parliament, because the thing had been done under
James I., we must acknowledge the procedure more pitiful,
though far more innocent, than Alexander's dragging the body
of the gallant Beds at the wheels of his chariot round the
walls of Gaza, in order to follow the precedent of his progen:-
tor Achilles. But this is caricature, and it is unphilosophical
1 In my Ethics, and especially in my Principles of Legal and Politi-
cal Interpretation and Construction.
214 ON CIVIL LIBERTY
to point at the case, in order to prove the futility or mischief
of the precedent. It is a proper subject for Punch to exter-
minate such farces, not for us to discuss them, any more than
seriously treating the French publicist, who, speaking of the
intrigues of the legitimists, lately said that the elder Bour-
bons should remember that Louis Napoleon had created for
himself a formidable precedent, in the spoliation of the Orleans
branch. Nero's fiddle might at this rate legalize the senti-
mental burning of any capital.
The precedent has been called judge-made law, and as such
deprecated. A more correct term would be court-evolved
law. If the precedent is bad, let it be overruled by all means,
or let the legislature regulate the matter by statute. Bacon's
dictum, already quoted, that the worst of things is the apo-
theosis of error, applies to the bad precedent as forcibly as to
any other error, but the difficulty is not avoided by simply
disavowing the precedent. Some one must decide. Now is it
better that government or a "minister of justice" shall lay
down a rule in the style of the civil law, or that the principle
shall be decided in court by the whole organism established to
give reality and practical life to justice, and in the natural
course of things ?
Continental jurists, when they compare the civil law with the
common law, always commit this error, that they merely com-
pare the contents of the two great systems of law, on which I
shall presently say a few words ; whilst they invariably forget
to add to the comparisons this difference, that the civil law,
where it now exists, has been introduced as a dead and foreign
law ; it is a matter of learned study, of antiquity ; whereas the
common law is a living, vigorous law of a living people. It is
this that constitutes more than half its excellence ; and though
we should have brought from England all else, our liberty, had
we adopted the civil law, would have had a very precarious
existence. Judge Story relates " as perfectly well authenti-
cated, that President (John) Adams, when he was Vice-Presi-
dent of the United States, and Blount's conspiracy was before
the senate, and the question whether the common law was to be
AND SELF-GOVERNMENT. 215
adopted was discussed before that body, emphatically exclaimed,
when all looked at him for his opinion as that of a great lawyer,
that if he had ever imagined that the common law had not by
the revolution become the law of the United States under the
new government, he never would have drawn his sword in the
contest. So dear to him were the great privileges which that
law recognized and enforced." 1
A common law, to be a real advantage to the people, must
be a general law, and the judicial organism must contain that
organic arrangement by which confusion and consequent inse-
curity is prevented. Without it the common law, as any other
system of law, ceases proportionately to be a protection of the
citizen ; while the gradual generalization of the law, in the re-
spective countries occupied by our race, as well as the steady
extension and internal growth of international law, form one of
the most important topics of that portion of our history which,
for want of better terms, may be called the nationalization and
uniformation of our race, in governments, languages, litera-
ture and law systems.
The civil law excels the common law in some points. Where
the relations of property are concerned, it reasons clearly and
its language is admirable, but as to personal rights, the free-
dom of .the citizen, the trial, the independence of the law, the
principles of self-government, and the supremacy of the law,
the common law is incomparably superior. 2
1 Page 299, vol. i., Life and Letters of Joseph Story.
J The civil law, a law of wisdom bat of servitude ; the law of a great
commercial empire, digested in the days of Justinian, and containing all
the principles of justice and equity suited to the relations of men in
society with each other; but a law under which the head of govern-
ment was "Imperator Augustus, legibus solutus." John Quincy Adams,
seventh President of the United States, in a letter to Judge Story, page
20, vol. ii., Life and Letters of Judge Story.
The young American reader is recommended to peruse a letter to a
young friend, by Mr. Legare, first published in the National Intelligencer,
in which he urges the study of the Civil Law as one of the best means of
mental legal training. That distinguished advocate told the author that
whenever he was peculiarly complimented on an argument in civil suits
216 ON CIVIL LIBERTY
Nor has the civil law remained without its influence, but it
never superseded the common law. The common law remained
a living system, and it assimilated to itself parts of the civil
law as it assimilates any other element. For instance, Judge
Story, in one of his essays, says : The doctrine of bailments,
too, was almost struck out at a single beat by Lord Holt, 1 who
had the good sense to incorporate into the English code that
system which the text and the commentaries of the civil law
had already built up on the continent of Europe. 2
The common law is all the time expanding and improving.
I have given a very interesting instance of this fact, in the
law of whalers, which has developed itself among the hardy
hunters of the Pacific, 3 and has been acknowledged, when the
proper occasion offered itself, in the courts of Massachusetts. 4
or had gained a very difficult case, he could trace the reason to his having
thoroughly studied the civil law in his younger days in Europe. Mr. Le-
gar6 also wrote an extensive article on Roman Law and Legislation in
the Southern Review.
1 The case of Coggs vs. Bernard, 2 ed. Raym. R. 909 note by Judge
Story.
2 Story's Miscellaneous "Writings, p. 224.
8 In a similar, though in a far less interesting way, I observe that a
whole code has established itself for the extensive sale of books at auc-
tion in London. It is a real specimen of the genius of one part of com-
mon law.
4 See Article Common Law, in the Encyclopaedia Americana. It was
written, as many others on subjects of law, by my lamented friend, Judge
Story. An opportunity has never offered itself to me publicly to ac-
knowledge the great obligation under which I am to that distinguished
jurist, for the assistance he most readily and cheerfully gave me in edit-
ing the Americana. I shall never forget the offer he made to contribute
some articles when I complained of my embarrassment as to getting
proper articles on the main subjects of law, for my work intended for
the general reader. Many of them were sent from Washington, while
he was fully occupied with the important business of the supreme court.
He himself made out the list of articles to be contributed by him, and
I do not remember ever having been obliged to wait for one. The only
condition this kind-hearted man made was that I should not publish the
fact that he had contributed the articles in the work until some period
subsequent to their appearance. They have met with much approba-
tion, and I hope I am not guilty of indiscretion, if I state here that
AND SELF-GOVERNMENT. 217
The idea of a common law, with its own inherent vitality
and independence is, as a matter of course, wholly disavowed
by those who follow the French views, and who, as we have
seen, strive above all for union of force, and who consider the
essence of democracy to consist in absolute equality concen-
trated in absolute dominion, whether of the majority, or of one
to whom the majority has transferred the absolute power the
democratic Caesar. Those American writers, therefore, who
take this Gallican or Rousseau's view of democracy, share with
the French this hostility to the common law. It was rifest at
the time of the French revolution, since which time I believe
it may be affirmed that it has greatly subsided. Yet it sub-
sists still, and is occasionally uttered with an energy which
surprises those who believe that the severest lesson taught by
the first half of the nineteenth century, is, perhaps, that abso-
lute democracy has no connection with liberty. 1
another friend, a distinguished orator and lawyer, the Hon. "William C.
Preston, has repeatedly expressed his admiration of them.
The contributions of Judge Story to the Americana " comprise more
than 120 pages, closely printed in double columns. But a higher interest
than that growing out of their intrinsic worth belongs to them. They
were labors dedicated purely to friendship, and illustrate a generosity
which is as beautiful as it is rare/' To these words, copied from p. 27,
vol. ii. of Life and Letters of Joseph Story, where a list of all his con-
tributions may be found, I may add that Judge Story made his offer at
a time when he to whom it was made was known to very few persons in
this country, and had but lately arrived here ; and that Judge Story
took at once the liveliest and most active interest in the whole enter-
prise, and contributed much to cheer on the stranger in his arduous task.
1 Theory of Politics : An Inquiry into the Foundations of Govern-
ments, and the Causes and Progress of Political Revolutions. By
Richard Hildreth, author of "The History of the United States of
America," etc. ; New York, 1853. In this work the reader will find
the opinion maintained that the practical working of a democratic
government in our own country is obstructed by several disturbing
causes, of which the greatest is the common law " a scheme directly
hostile to the spirit of democracy," and therefore, " under an enlightened
democratical government, entirely out of place."
CHAPTER XIX.
INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW CON-
TINUED. ACCUSATORIAL AND INQUISITORIAL TRIALS. IN-
DEPENDENCE OF THE JUDGE.
38. THE practice or usage of the administration of justice
belongs of right to the development of that administration
itself, avowedly so, and not merely by indulgence or con-
nivance. 1
In countries in which this important principle is not acknow-
ledged, certain changes, produced by "practice," were and are,
nevertheless, winked at, and happily so, because legislation has
neglected to make the necessary changes, and humanity will
not be outraged. Thus, in German countries, practice had
abolished the application of the torture and fearful punishments,
demanded by positive law, long before they were abolished by
law. But it was an exception only demanded by common sense
and by a general feeling of humanity.
The common law of the Anglican race, however, assigns the
right of development to the courts. It is part and parcel of
the common law. Innumerable instances and of almost daily
occurrence might be given.
The following instance is given here simply because the
writer happens to think of it, and because it seems to be an
apt illustration.
1 Lord Mansfield, in a note to a Scottish judge, who had asked his
advice as to the introduction of trial by jury in civil cases into Scot-
land, has this remark : " Great alterations in the course of the admi-
nistration of justice ought to be sparingly made and by degrees, and
rather by the court than by the legislature." Lord Campbell's Chief
Justices of England, vol. ii. p. 554.
(218)
ON CIVIL LIBERTY. 219
When a court is directed to sit two weeks, and a jury, being
summoned to act for the first week of the term, and having re-
7 O
tired to consider of their verdict before midnight of Saturday,
in the first week, return into court after midnight, and before
daylight of Sunday ; shall or shall not their verdict be received
and published? Shall it be rejected on the ground that Sun-
day is a dies nonjuridicus ? This question was lately decided
in South Carolina, not by applying for information to a "minis-
ter of justice," or "the emperor," as the civil law directs, but
by itself, upon the principle of vital self-sufficiency, by inquiry
into its own principles, and an examination of precedents in
the whole range of English law, and of statute laws, if there
were any exactly applying to the case under consideration. 1
This principle of self-development is important likewise with
reference to a clear division of the judiciary from other branches
of the public power. The law is not independent, and conse-
quently the citizen not free, where aught else than the admi-
nistration of justice belongs to the court, and where anything
that belongs to the administration of justice is decided by any
one but the courts; where things are decided by aught else
than the natural course of law, and where, as has been stated,
interpretation or application belongs to any one else than to
the judiciary. 2 Hence there ought to be no pressure from
without, either by a Stuart sending for the judges to tamper
1 The learned " opinion" of the court of errors was delivered by Judge
Wardlaw, Hiller vs. English, 4 Strokhart's Reports, Columbia, S. C. 1850.
While I was writing this, the supreme court of Massachusetts decided
that the " squeeze of the hand" of a dying person, unable to speak, but
having been made aware of the fact that the pressure would be taken
as an affirmative, may be taken as " a dying declaration," though with
caution. National Intelligencer, Washington, May 21, 1853.
2 Even the Constitution of the French Republic of 1848 said, arti-
cle 89 :
' ; Conflicts of privileges and duties between the administrative and
judicial authority shall be regulated by a special tribunal composed of
members of the court of cassation and of counsellors of state, to be
appointed, every three years, in equal number, by the respective bodies
to which they belong. This tribunal shall be presided over by the
minister of justice."
220 ON CIVIL LIBERTY
with them, or to ask them how they would decide a certain
case if brought before them, or by a multitude assuming the
name of the people. No judge ought to give his opinion be-
fore the practical case has come on and been discussed accord-
ing to law, either to monarch, political party, or suitor 1 . He
is an integral part of the law, but only a part, which must not
be disconnected from the law. There must not be what are
called in France jugements administratifs, nor any exraordi-
nary or exceptional courts, as has been mentioned; no judg-
ments by extraordinary commissions, nor any decisions by the
executive regarding the application of the law. The following
instance is here given, not because the case is of itself important,
but because it exhibits the principle with perfect clearness, and
because it refers to a royal proclamation an executive act.
The English government had published in 1852 a proclamation
against the public appearance of Roman catholics in their re-
ligious vestments ; and the well-known father Newman asked
the secretary for the home department whether this royal pro-
clamation must be considered as directed also against the
wearing of "cassocks and cloaks" in the streets of Birming-
ham, where the Roman catholics had been in the habit of ap-
pearing thus "under legal advice" for full four years. The
answer of secretary Walpole, one of the ministers, was this :
" I am to inform you, that her majesty's proclamation is di-
rected against all violations of the 26th section of the statute
10th George IV. c. 7, and that if you feel any difficulty in
the construction of the enactment, your proper course will be
to consult your legal adviser. The secretary of state would
not be justified in pronouncing an opinion on the question sub-
mitted to him ; for if any doubt exists on the point, the de-
cision of it must rest with the courts of law, and not with the
government." 1
There is no country except ours and England where a simi-
lar answer would, or indeed could, have been given. Every-
where else it would have been called a destruction of the prin-
The letter is dated June 24, 1852. London Spectator, July 3, 1852.
AND SELF-GOVERNMENT. 221
ciple of unity in the government. We call it a small but choice
cabinet specimen of a most noble principle, forming an element
of our very polities. Nor must it be forgotten that it was a
tory government which made this exclusively Anglican reply.
The reader will remember the directly opposite principle de-
clared in the bull of Pope Pius IV., quoted before, as well as
Locke's provision in his constitution of South Carolina.
39. The public accusatorial 1 trial is another element of the
independence of the law, as it is one of the efficient protections
of the citizen. By accusatorial process is understood here, not
what is generally understood by the term of trial by accusation,
(that is, individual accusation,) 2 but that penal trial which
places the court wholly above the two parties in criminal mat-
ters, as the judge is everywhere placed, at least theoretically
so, in civil cases ; although the two parties be the prosecuting
state or government on the one hand, and the indicted person
on the other. The accusatorial trial is thus contradistinguished
from the inquisitorial trial, which came into use through the
canon law, and especially through the unhallowed witch-trials.
In it, the judge inquires, investigates, in one word, is the pro-
secuting party as well as the judging, and in some cases he is
even expected to be likewise the protecting party of the in-
dicted prisoner, thus uniting a triad of functions within himself
which amounts to a psychological incongruity. 3
It may be said that the public accusatorial trial has prevailed
or been aimed at by all free nations, modern and ancient. We,
1 The trial by accusation has a distinct meaning in the English law ;
still I have adopted the term Accusatorial Trial, in conformity to con-
tinental lawyers. A distinct term in contradistinction to the Inquisi-
torial Trial is necessary, and I prefer Accusatorial to Litigious Trial,
which I observe Mr. Stephen uses in an interesting paper on English
Criminal Law in the collection of articles published from time to time
by former students of the two English universities, Oxford and Cam-
bridge respectively.
2 There was no public prosecutor in Rome. An individual appeared
as accuser, and formed throughout the trial, the prosecuting party. See
article Criminal Law, in the Encyclop. Americ.
3 See Feuerbach on the Jury.
222 ON CIVIL LIBERTY
the English, the Netherlander, the Norwegians, the Swedes,
the French, since the first revolution, 1 the Germans in the
earlier times, the Greeks and Romans all have or had it, but
it has nowhere been carried out with that consistency which we
find in the Anglican penal trial.
The penal trial or procedure is quite as important as the
criminal law itself, and with reference to protection, to liberty,
to a pervading consciousness of manly rights, it is even more so.
This is the chief reason which explains why the English, the
freest nation of Europe, endured so long one of the worst and
most unphilosophical bodies of criminal laws so sanguinary
in its character that the monstrosity came to pass, of calling
all punishments not capital, secondary punishments, as if death
were the current penal coin, and the rest of punishments merely
the copper to make small "change." The English public ac-
cusatorial process, since the expulsion of the Stuarts, contained
great guarantees of public security, even while those deficien-
cies yet existed which have been remedied of late, thanks to
Sir Samuel Romilly and Sir Robert Peel. For a long time
the English judge was the short bridge of fairness, such as even
that was in earlier times, between the cruel treatment of pri-
soners before and after the trial, for it was only in 1774 that,
at the earnest solicitation of Howard, parliament passed an act
according to which jailors should be paid from public funds,
and not, as theretofore, by fees of the prisoners, so that per-
sons found not guilty should no longer be returned to prison,
there to be kept until they could pay the jailor. 2
We consider that the accusatorial procedure, carried out with
consistency and good faith, requires that the accusation itself
be not made by the executive, but upon information, by whom-
1 Under the present absolutism, the trial is of course at the mercy of
the executive, if the government lias any interest in the matter ; that is,
punishments are inflicted without trial, and certain offences are punished
summarily, although punishable with severe visitation of the law.
2 Such fearful inconsistencies are almost bewildering, but Woe to the
penally indicted, was the word of the law on the whole continent. There
are similarly glaring and cruel inconsistencies still existing in our proud
race.
AND SELF-GOVERNMENT. 223
soever made, through an act, which itself includes a guarantee
against frivolous or oppressive accusation ; for, as has been
stated, trial itself, though followed by acquittal, is a hardship.
Hence the importance of a grand jury. The Constitution of
the United States ordains that "no person shall be held to
answer for a capital or otherwise infamous crime unless on a
presentment or indictment of a grand jury." The French penal
trial contains no such guarantee, but it has passed over into the
fundamental laws of all our states. It is farther necessary
that the whole trial be bona fide public and remain bona fide
accusatorial. Hence there ought to be no secret examina-
tions of the prisoner by the public prosecutor before the trial,
the results of which are to be used at the trial, as this actually
forms part of the French penal trial. On the other hand, the
judge should remain, during the trial, mere judge, and never
become inquirer or part of the prosecution, as this is likewise
the case in France. Nor must the prisoner be asked to incri-
minate himself. All this belongs to the inquisitorial trial.
The indictment must be clear, and the prosecuting officer must
not be allowed to influence the jury by an address before the
witnesses are examined, nor be allowed to bring in irrelevant
matter. Lastly, full scope must be given to counsel for pri-
soner. In all these details most of the accusatorial trials, ex-
cept the Anglican, are more or less, and some sadly deficient.
40. The independence of the law or administration of justice
requires the independence of the judge. All the guarantees
we have mentioned support the judge in his independence, and
are requisite for it. He cannot be so without a distinct sepa-
ration of the judiciary from the other branches of the govern-
ment, without a living, self-sustaining jus, or without the accu-
satorial procedure. But more is necessary.
The appointment, the duration in office and the removal,
must be so that the judge feels no dependence upon any one
or anything, except the law itself. This ought to be the case
at least in as high a degree as it is possible for human wisdom
to make it, or for human frailty to carry out. 1 Where there
See " Federalist," No. Lxxviii. and scqu.
224 ON CIVIL LIBERTY
is a pervading publicity in the political life, an independent
bar and self-sustaining jus and administration of justice, with
responsible ministers of the executive or a responsible chief
magistrate, carefully limited in his power, there is probably as
little danger of having bad judges, in giving the appointing
power to the executive, especially if, as is the case with us, the
senate must confirm the appointment, as in any other mode of
appointing indeed, far less danger than in those other modes
which so far have been adopted in most of our states. Where
peculiar fitness, peculiar skill and learning, and peculiar apti-
tude are requisite, it is for many psychological reasons the best
to throw the responsibility of appointing, on a few or one, so
that it be concentrated, provided these few or the one are made
to feel by a proper organization that they are responsible to
the public. It is unwise to give such appointments to irre-
sponsible bodies, or to numerous bodies, which, according to
the universal deception of a divided responsibility, are not apt
to feel the requisite pressure of responsibility, and necessarily
must act by groups or parties. If it be done, that hallowed
character a wise and upright judge, a type of humanity, which
antiquity and modern times, paganism, mohametanism, the old
and new testaments, and the most revered passages of civil
history, have ever held as one of the highest and most worthy,
soon fades away in the forgetfulness of one of the most import-
ant elements of all that is right, honorable, and civilized. 1
1 Hard as the task of recording the following occurrence may be, it is
better that the distemper be known, so that its cure may become possible.
In the year 1857, after the Police Law had long been resisted by the
mayor of the city of New York, .and after the supreme court of the state
had declared it constitutional, a convention of one of the largest parties
was held in that state, in order to nominate proper candidates for the vari-
ous offices to be filled by the approaching election. When the judge of
the supreme court, who belonged to the same party, and who, on the bench,
had decided for the constitutionality of the Police Law, came to be nomi-
nated, the nomination was opposed by the person who had been mayor of
New York, in a public speech, on the avowed ground that judges had been
made elective by the party, although he himself had been adverse to it ;
that therefore the judges had been drawn into the sphere of party poli-
AND SELF-GOVERNMENT. 225
Laws ought to be the result of mutually modifying compro-
mise; many appointments ought not. Election in such cases,
by a large body, would lead to few efficient and truly service-
able ambassadors, and it has long been settled by that nation,
which probably knows most about efficient appointment of uni-
versity professors, the Germans, that their appointment by
election, either by a numerous corporation or by the profes-
sors of a university themselves, ought to be discarded. 1
If the appointment of judges ought not to be vested in legis-
latures, far less ought the people at large to burden themselves
with the election of j udges. The election of judges by the people
themselves, which has now been established in many of the
United States, is founded, in my opinion, on a radical error
the confusion of mistaking popular power alone for liberty,
and the idea that the more the one is increased, in so much a
higher degree will the other be enjoyed. As if all power, no
matter what name be given to it, if it sways as power alone,
tics. The party had voted against the Police Law, and the judge had
declared it constitutional, therefore he ought not to be nominated for re-
election. The worst of the Stuarts never said anything worse concern-
ing judges, and the painful account has been given here to show to the
younger students of this work how fearfully rapid the decline of national
sentiment is. Not more than ten years ago, such sentiments, publicly
avowed, would have created universal abhorrence. May my younger
readers remember that the curses pronounced on unjust judges extend to
those who appoint judges known to be unjust, or adopt a system which
must make them so ; be they monarchs or the people execrations and
blessings make no distinction between them. That judges ought to judge
by the law alone, has been often felt even by absolute monarchs. Fre-
deric II. of Prussia, wrote a letter to the supreme court of his kingdom,
enjoining the members to be faithful to their oath, and to do justice in
spite of royal demand. The court ordered the letter to be framed and
hung up in its hall. Louis XII. of France, in his edict of 1499, concern-
ing the parliaments or high courts of justice, ordained that the law should
always be followed, in spite of royal orders, which, as the ordinance says,
Importunity may have wrung from the monarch.
1 The remarks of that wise philosopher, Sir William Hamilton, on the
election of professors, in his minor works, apply, so far as I remember
them now, with equal force, and probably even with greater strength, to
the election of judges.
15
226 ON CIVIL LIBERTY
were not absolutism, and had not the inherent tendency, natu-
ral to all power whatever, to increase in absorbing strength !
All despotic governments, whether the absolutism rests with
an individual or the people, (meaning of course the majority,)
strive to make the judiciary dependent upon themselves. Louis
XIV. did it, Napoleon did it, and every absolute democracy has
done it. All essential, practical liberty, like all sterling law itself,
loves the light of common sense and plain experience. All abso-
lutism, if indeed we except the mere brutal despotism of the
sword, which despises every question of right, loves mysticism
the mysticism of some divine right. The monarchical abso-
lutists wrap themselves in it, and the popular absolutists do the
same. But there is no mystery about the word People. People
means an aggregate of individuals to each of whom we deny any
divine right, and to each of whom I, you, and every one in-
cluded we justly ascribe frailties, failings, and the possibility
of subordinating our judgment and virtue to passion and vice.
Each one of them separately stands in need of moderating and
protecting laws and constitutions, and all of them unitedly as
much as the individual. Where the people are the first and
chiefest source of all power, as is the case with us, the electing
of judges, and especially their election for a limited time, is
nothing less than an invasion of the necessary division of power,
and the submission of the judiciary to the influence of the
power-holder. It is therefore a diminution of liberty, for it is
of the last importance to place the judge between the chief
power and the party, and to protect him as the independent,
not indeed as the despotic organ of the law.
It has been repeated by some who, not long ago, urged an
elective judiciary, that an independent judiciary may be neces-
sary in order to stand between the crown and the people, but
that these two parties do not exist with us, and that therefore
the judges ought to be dependent on the people, whose simple
servants they are. Not to mention that the word people is
used in this fallacious argument, as it is often in other cases,
for a mysterious unit, which exists nowhere, it may suffice to
say that the English judge does not stand between the crown
AND SELF-GOVERNMENT. 227
and the people. The crown, opposite the people, is sufficiently
weak. The English judge stands between the crown and the
accused individual, while with us the judge stands between the
people and the individual, which creates a far greater difficulty.
To resist the crown is considered patriotic, heroic ; to resist the
people (and frequently, nay in most excited cases, this means
only a loud or impassioned portion of them,) is considered un-
patriotic, mean, and even treasonable.
An independent judiciary is one of the most indispensable
elements of self-government, for self-government always im-
plies mutual restraint. It is one of the wisest acts in a per-
fectly free people to establish the highest possible degree of
judicial independence, while they only act as all common power
acts, if they wish to retain absolute power. 1
Those of our states, which have of late given the appoint-
ment of judges to popular elections, labor under a surprising
inconsistency; for all those states, I believe, exclude judges
from the legislature. They fear "political judges," yet make
them elective. Now, everything electional within the state
becomes necessarily, in time, political. If the physician of a
hospital, the captain of a vessel, or the watchmaker to repair
our timepieces, were elected by the people, they would, to a
certainty, in most cases, be elected not according to their
medical, nautical, or horological skill and trustworthiness, but
on political grounds. There is nothing reproachful in this to
the people at large. It is the natural .course of things. Even
members of the French Academy have been elected on politi-
cal grounds, when the government has taken a deep interest
in the election.
The question whether judges ought to sit in the house of
commons was recently before parliament. 2 There are many
1 In 1774 parliament passed an act making the justices of the supreme
court of Massachusetts independent of the people for their salaries. The
grand jurors refused to serve. Paul Revere was one of the grand jury.
2 See Mr. Macaulay's speech in the commons, June 1, 1853, on a bill
to exclude judges from the house of commons. The chief question was
to exclude the vice-chancellor from a seat in the commons. Mr. Macau-
lay is decidedly in favor of letting judges sit in the commons.
228 ON CIVIL LIBERTY
English authorities on the American side of the question, at
least so far as the house of commons is concerned. Lords
Brougham and Langdale, Sir Samuel Romilly and Mr. Curran
may be mentioned as such. On the other hand, Mr. Bentham
was of opinion that there was so little legislative talent in
the world that no place fits so well for legislative business as
the bench, and that it was suicidal to exclude the judges.
The questions we have to answer are these: Does experience
teach us that judges, having a seat in the legislature, where
they needs must belong to one or the other party, allow them-
selves to be influenced on the bench? In England, there are
striking instances that, in modern times, they may resist their
own political bias, in Eldon, Thurlow, Mansfield, and Hard-
wicke. But this remark extends to common cases only. Were
they, or would they have been utterly unbiased in all those
trials that may be called political ? The pervading character
of self-government and independence of the law has certainly
given to the English bench a traditional independence. But
how long has this existed, and what times may not possibly
recur? It appears, throughout the Life and Correspondence
of Justice Story, that so soon as he was elevated to the bench
he not only avoided being mixed up with politics in any degree
whatsoever, but even the mere semblance of it. He seems to
have been peculiarly scrupulous on this point.
The second Question we must answer is this : How does the
judge get into the legislature ? Can he do so without elec-
tioneering ? The more popular a representative government
is, the more necessary the immediate contact between the
candidate and the constituents becomes. And who wishes to
see the judge, that ought to be the independent oracle of the
law, in this position ?
Mr. Bentham's observation regarding the general unfitness
of the world at large for legislative business, and the peculiar
fitness of judges for it, requires also some modification. How
is it with sanitary laws ? Few physicians sit in legislatures,
and those that have a seat are not placed there because they
are at the head of their profession. We must necessarily trust
AND SELF-GOVERNMENT. 229
to the general influence under which a legislature legislates.
As to the fitting of the bench for legislative business, it is un-
doubtedly true with regard to a large class of that business; but
we must not forget that the judge is and ought to be a peculiar
representative of conservatism ; which nevertheless unfits him,
in a measure, for all that business which is of a peculiarly pro-
gressive character. Almost all law reforms have originally
been resisted by the bench. It is not in all cases to be re-
gretted. The judges are the breaks which prevent the vehicle
from descending too fast on an inclined plane; but the retard-
ing force must be overcome in many cases, however serviceable
it may be that the action of overcoming the difficulty may have
been modified by the very process.
I cannot help believing, then, that upon the whole judges
ought to be excluded from the legislature ; they certainly
ought to be so with us. To allow them a seat in concentrated
governments as in France would be calamitous. But this
reason is, a fortiori, one why judges ought not to be elected
by the people.
We are frequently asked whether the elective judiciary
works badly ? The answer is, that a ball rolls awhile from
the first impulse given to it. So far old judges have generally
been elected under the new system ; and we would ask on the
other hand : Has the former system worked badly ? I be-
lieve, then, that elective judges are a departure from substan-
tial civil liberty, because it is a departure from the all-import-
ant independence of the law.
The foregoing paragraph was written in 1853; and 1 have
now to add, in 1859, that a judiciary elected by the people
seems to be, universally and unqualifiedly, considered a serious
failure. I state this, conscientiously to record facts concerning
so important a topic. The most attentive observation, exten-
sive perusal of public journals, consultation of lawyers and
statesmen, have not brought to my knowledge a single opinion
in favor of an elective judiciary. Everywhere it seems to be
acknowledged that it was introduced into our constitutions from
no dissatisfaction with the existing system, or with the judges,
230 ON CIVIL LIBERTY
but simply to satisfy the desire of increasing the power of the
power-holder to be subservient to the sovereign ; that in real-
ity it does not increase the power of the people, since persons,
if appointed by popular vote, are nominated by a small number
of so-called leading politicians, and the people at large can
discuss the matter as little as the ecclesia in the agora could
discuss ; that the confidence of the people in the judiciary has
been lessened, and through it the confidence even in the jury
system ; that if a possible increase of salary is believed to be
capable of influencing the judges, for which reason it is pro-
hibited by all our constitutions, it follows, a fortiori, that a re-
election by the people, or the losing it, must influence the judge
far more ; that instances of want of independence have occurred
in various states, and the lack of independence has especially
and sadly interfered with our penal trials and the salutary
operation of the law ; that it has in many cases elevated indi-
viduals to the bench who had no standing among their fellow
lawyers, and whom no governor would have dared to appoint,
feeling his responsibility as a trustee, while the electing people
are irresponsible, and that in several states it has actually oc-
curred that candidates for judicial seats have been asked in
the public journals how they mean to decide if certain questions
(e. g. the constitutionality of the New York liquor law) should
come before them, in the same way in which certain political
questions are put to candidates for the legislature. 1
It is necessary to appoint judges for a long period, and the
best is probably for life, with a proper provision which prevents
incapacity from old age. 2 The experience which is required,
and the authority he must have, although unsupported by any
1 The report of the Reform Committee of the New York legislature
reveals a state of things which reminds us of the worst state of Athens,
while the Louisiana papers copied the most important portions, with
strengthening commentaries and illustrations from their state. Numer-
ous individuals, judges, and lawyers, have publicly expressed their dis-
approbation. We trust so great an evil will soon be redressed.
2 See Political Ethics, under the heads of Judge, Independence of the
Judiciary.
AND SELF-GOVERNMENT. 231
material power, make this equally desirable, as well as the fact
that the best legal talents cannot be obtained for the bench if
the tenure amounts to a mere interruption of the business of
the lawyer. 1 The constitution of the French republic of 1848,
so democratic in its character, decreed the tenure of judicial
office to be for life. 2
It is for a similar reason of public importance that the salary
of the judges be liberal, which means that, combined with the
honor attached to a seat on the bench, it be capable of com-
manding the fairest legal talents. The judge must enjoy, as
has been stated, proper independence ; but he is dependent, and
in the worst degree so, if he is conscious that the best lawyers
before him are superior to him in talent, experience, learning and
character. None but such inferior men can be obtained for an
illiberal salary, according to the universal law that the laborer
is worthy of his hire, and that he will seek to obtain this hire
in the great market of labor and talent. Even the common
consideration that every private individual expects that his
affairs will be served best by an efficient clerk for a liberal
hire, and not by a poorly paid hireling whose incapacity can
command no higher wages, should induce us to pay judges, as
indeed every one who must be paid, and is worthy of being
paid at all, with a liberality which equally avoids lavishness
and penury. Liberal salaries are essential to a popular
government.
To make judges independent or remove from them the pos-
sible suspicion of dependence, it has been ordered in the Con-
stitution of the United States that the "judges of the supreme
and inferior courts shall hold their offices during good behavior,
and shall at stated times receive for their services a compen-
sation which shall not be diminished during their continuance
in office." This principle has been adopted in most, if not in
all our constitutions ; many have added that it shall not be
1 I would refer the reader, on all these subjects, to Judge Chambers's
Speech on the Judicial Tenure, in the Maryland convention, Baltimore,
1851.
2 This constitution will be found in the appendix.
232 ON CIVIL LIBERTY
increased either, during continuance in office. 1 But what is
the possible dependence feared from an increase or decrease of
salary compared to that unavoidable dependence which must
be the consequence of short terms of office, and of appoint-
ment by election ? It will hardly be necessary to mention
that a fixed salary, independent of fees and fines, is indispen-
sable for the independence of the judge and the protection of
the citizen. Even common decency requires it. Don Miguel
of Portugal made the judges who tried political offenders
depend upon part of the fines and confiscations they decreed,
and we know what was done under James II. and Lord Jef-
freys. The hounds receiving part of the hunted game sug-
gest themselves at once.
With a view of making the judiciary independent, the
removal of judges from office has been justly taken out of the
hands of the executive. The immovability of judges is an
essential element of civil liberty. Neither the executive nor
the sovereign himself ought to have the power of removing a
judge. He can therefore be removed by impeachment only,
and this requires, according to the Constitution of the United
States, two-thirds of the votes of the senate. In some states
they can be removed by two-thirds of the whole legislature. 2
Although the principle of arbitration cannot be called a cha-
racteristic of liberty, for as a characteristic it belongs rather
to the patriarchal government, and courts of arbitration may
nourish in despotic states, it will be necessary to consider this
topic in the present place. It is very possible that our people
would more readily give up an elective judiciary, where it has
been established, if the law or the state constitutions directed
or admitted of regular courts of arbitration. Wherever they
1 When it has become necessary to increase the salary of judges, the
difficulty has sometimes been avoided by the judges resigning, upon the
understanding that, after the legislature shall have increased the salary,
they should be re-appointed.
2 It seems to me a strange anomaly that, as it would seem by a late
resolution of the United States senate, the president has authority to re-
move judges in the " territories.' 1
AND SELF-GOVERNMENT. 233
have been tried in modern times, they have been found of
the greatest benefit to the people, for instance, in Prussia
and Denmark. Great efforts are made in England, by such
leading men as Lord Brougham, to introduce them in that
country of law. In England as well as in the United States
the law admits indeed of arbitration, but a single arbitration
though acknowledged by law, if certain prescribed conditions
have been fulfilled, differs in effect, and the advantage result-
ing from it, from a court of arbitration.
Where these courts now exist, the following are, I believe,
their characteristics :
The country is divided into certain arbitration districts, in
each of which the people elect several judges of arbitration, so
that the people may have a choice, because the whole business
transacted by them is an affair of confidence;
Parties must agree to go to arbitration, and select the
judge :
They must commence business by handing in a written de-
claration that they will abide by the decision of the judge,
without any appeal, and the decision of the judge has full
force in all courts ;
Going to arbitration is a purely voluntary matter ;
Parties must state their own cases, and no pleaders for others,
no lawyers are admitted;
There is no jury ;
The arbitration extends to civil cases only, as a matter of
course ;
The judges of arbitration are elected for a limited time ;
The judge decides on the common principles of fairness;
Great care is taken to establish, as the first step, that the
parties come into court, truly and verily, of their own accord
and free will.
The chief objections to Lord Brougham's repeated proposi-
tions to introduce courts of arbitration have been made by
professional lawyers, namely, that parties ignorant of their
full rights would expose themselves to great losses. The
statistics of those countries where these peculiar courts exist
234 ON CIVIL LIBERTY.
V
seem to prove the contrary. The number of cases decided by
them has been increasing from year to year, and is now, as
well as the amount of property upon which they have decided,
surprisingly large. Cases in which the disputed property
amounted to several hundred thousand dollars have been taken
before these courts, and it has repeatedly happened in Prussia,
that in a suit before the regular courts of law, the settlement
of portions of the suit have been taken, by common consent,
to arbitration, and the suit at law has proceeded with the deci-
sion of the court of arbitration. It is remarkable that the
amount of property at stake, thus taken out of the court of
law to the court of arbitration, has sometimes been very large.
The establishment of courts of arbitration has produced a
signal decrease of litigation and diminution of expenses.
Finally, it may be observed, that the fundamental idea of
courts of arbitration somewhat resembles, in one point, the
principle upon which, originally at least, 1 the house of lords,
decided as the last court of appeal, a principle which many of
our states had imitated, by giving the last appeal to the state
senates, and which, so far as my inquiry has led me to con-
clude, produced beneficial results. The introduction of courts
of arbitration, along with the abolition of elective judges, and
especially of judges elected for a short term, would produce
the best effects in our country. 2
1 At present, when the house of lords sits as a court of appeal, none
but the law lords are generally present.
1 In some manufacturing districts on the continent of Europe, for in-
stance in Rhenish Prussia, so called Manufactory Courts exist. They
consist of elected employers and employed, and judge of all the minor
difficulties which may arise between the employers and the employed out
of their immediate relation to one another. The common question, for
instance, whether the woven piece, returned by the weaver, contains all
the material given to him, or whether it be returned in a perfect state,
is adjudged by them. General satisfaction seems to prevail with these
courts, whose German name is Fabrik-Gerichte.
CHAPTER XX.
INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE
ADVOCATE.
41. THE judge cannot occupy a sufficiently independent posi-
tion between the parties by the accusatorial proceeding alone.
If there is not what may be called a division of the judicial
labor, separating the finding of guilt or innocence, or of the
facts, from the presiding over the whole trial and the applica-
tion as well as the pronouncing and expounding of the law,
the judge must still be exposed to taking sides in the trial.
This division of judicial labor is obtained by the institution of
the jury. This, it seems to me, is one of the most essential
advantages of this comprehensive, self-grown institution. It
is likewise a guarantee of liberty in giving the people a parti-
cipation in the administration of justice, without the ruin and
horrors of an administration of justice by a multitude, as it
was in Athens. The jury is moreover the best school of the
citizen, both for teaching him his rights and how to protect
them, and for practically teaching him the necessity of law and
government. The jury, in this respect, is eminently conserva-
tive. In this, as in many other respects, it is necessary that
the institution of the jury exist for the civil trial as well as
for the penal, and not, as in many countries, for the latter only.
The necessity of the jury does not militate against the arbi-
tration courts, which have proved, as has been stated, a great
blessing in all countries in which they have been properly es-
tablished, or against certain courts of minor importance which
may be advantageously conducted without a jury. 1
1 For the history of this institution in general, the reader is referred to
William Forsyth, History of the Trial by Jury ; London, 1852.
(235)
236 ON CIVIL LIBERTY
The results of trial by jury have occasionally been such
that even in England and here, voices have been raised against
it. Men feel the existing evil only ; they do not see those
evils that would result a hundredfold from an opposite state of
things. Nor are those, who feel irritated at some results of
the trial by jury, acquainted with the operation of trials with-
out jury. So is occasionally the publicity of trials highly
inconvenient; yet should we desire secret trials? Liberty, as
we conceive it, can no more exist without the trial by jury
that " buttress of liberty," as Chatham called it, 1 and as our
ancestors worshipped it than without the representative sys-
tem. But we must remember that in all spheres the exception
is patent ; the continuous operation of the rule is latent. 2
The Declaration of Independence specifies, as one of the
reasons why this country was justified in severing itself from
the mother country, that Americans have been " deprived in
many cases of the benefits of trial by jury."
1 Lord Erskine, when he was raised to the peerage, adopted the words
Trial by Jury, as the scroll of his coat of arms.
2 The laxity now, unfortunately so common, in the administration and
execution of the laws ; the crying evil that in our large cities numerous
idlers, of a low character, make their living, during court time, by being
ready to serve as jurymen when called upon, of which they are now very
sure, owing to the facility with which judges excuse citizens from serv-
ing ; the frequency of non-agreement and consequent new trials ; the
length to which the doctrine is carried that juries are judges of law as
well as fact ; and many other things, have induced several persons loudly
to call for the abolition of the jury. They do not seem to know much of
history, or they would know that courts without juries are, indeed, not
exempt from falling into abuses, or from becoming actual nuisances.
Let us imagine our present elective judges without jury, would that
mend matters ? The opposite is hardly ever the cure of an evil. A
glutton would not take the right step of amendment by the resolution of
starving himself to death. Our jury trials exhibit many deplorable facts,
in the present time, owing to the general spirit of disorder ; but the admi-
nistration of justice, it would seem, suffers far more from want of energy
in the judges. Let us fervently hope that the recuperative power which
has been shown by modern nations, and by modern nations alone, will
manifest itself also with us. At any rate, no good is done, when the ship
of state is in danger, by cutting away the very ribs of the ship.
AND SELF-GOVERNMENT. 237
It may not be improper here to enumerate briefly all the ad-
vantages of so great an institution, whether they are directly
connected with liberty or not.
The trial by jury, then, if properly and intelligently admi-
nistered, divides the labor of the administration of justice, and
permits each part quietly to find the truth in the sphere as-
signed to it ;
It allows the judge to stand, as the independent organ of
the law, not only above the parties, hostilely arraigned against
each other, but also above the whole practical case before the
court ;
It enables plain, common, and practical sense properly to
admix itself with keen professional and scientific distinction,
in each single case, and thus prevents the effect of that dispo-
sition to sacrifice reality to attenuated theory, to which every
individual is liable in his own profession and peculiar pursuit
the worship of the means, forgetting the end ;*
1 And this is the reason that nearly all great reforms have worked
their way from without, and from the non-professional to the profes-
sional, or from below upward.
I beg to arrest the reader's attention for a moment on this topic.
In all civilized countries it is acknowledged that there are some im-
portant cases, which on the one hand it is necessary to decide, for Mine
and Thine are involved, and which, on the other hand, are not of a cha-
racter that the lines of demarcation can be drawn with absolute distinct-
ness, in a manner which would make it easy to apply the law ; e.g. the
cases which relate to the imitation of a part of a work of art, of a pat-
tern, or the question of a bona fide extract from an author's work, which,
according to the Prussian copyright law, was decided by a jury of
" experts," long before the general introduction of the jury in that coun-
try. A similar case is presented when an officer is accused of unofficer-
like and ungentlemanly conduct. Now the question becomes : Are not
these cases far more frequent than it is supposed in the countries where
the trial by jury does not exist ? Are not almost all complex cases, such
as require in a high degree good strong common sense, the tact of prac-
tical life, together with the law, to be justly decided ? Are not, perhaps,
the greater part of civil cases such? The English and Americans seem
to believe they are. They believe that close logical reasoning is indeed
necessary in the application of the law, and they assign this to the law
officers, but they believe also that a high degree of plain good common
238 ON CIVIL LIBERTY
It makes a participation of the people in the administration
of justice possible without having the serious evil of courts,
consisting of multitudes or mobs, or the confusion of the
branches of the administration of justice, of judges and
triers ;
It obtains the great advantage of a mean of views of facts,
regarding which Aristotle said that many persons are more
just than one, although each of the many were less so than
sense, unshackled by technicalities, is necessary to decide whether,
" upon the whole," " taken all in all," the individual case in hand is such
as to bring it within the province of the specific law, with reference to
which it is brought before the court, and they assign this part of the
trial to the jury, that is, to non-professional citizens. The English, and
the people of some American states, do not only follow this view in the
first stage of a case, but, in order to avoid the evil of letting technicali-
ties get the better of essential justice, of letting the minds of profes-
sional lawyers, whose very duty it is to train themselves in strict,
uncompromising logic, decide complicated and important cases in the
last resort, they allow an appeal from all the judges to the house of
lords, or to the senate.
It appears to me an important fact, which ought always to be remem-
bered when the subject of trial by jury in general is discussed, that by
the trial by jury, the Anglican race endeavors, among other things, to
insure the continuous and necessary admixture of common sense, in
the decision of cases ; and who can deny that in all practical cases, in
all controversies, in all disputes, and in all questions which require
the application of general rules or principles to concrete cases, com-
mon sense is indispensable, that is, sound judgment, which avoids the
Nimium ? Who will deny that every one is liable to have this tact and
plain soundness of judgment impaired in that very line or sphere in
which his calling has made it his duty to settle general principles, to
find general rules, to defend general points ? The grammarian, by pro-
fession, frequently, perhaps generally, writes pedantically and stiffly;
the religious controversialist goes to extremes ; the philosopher, by
profession, is apt to divide, distinguish, and classify beyond what reality
warrants ; the soldier, by profession, is apt to sacrifice advantages to
his science. Dr. Sangrado is the caricature of the truth here maintained.
The denial of the necessity of profound study and professional occu-
pation would be as fanatical as the disregard of common sense would be
supercilious and unphilosophical. Truth stands, in all spheres, empha-
tically in need of both.
AND SELF-GOVERNMEXT. 239
the one ; without incurring the disadvantages and the injustice
of vague multitudes ;
It brings, in most cases, a degree of personal acquaintance
with the parties, and frequently with the witnesses, to aid in
deciding ;
It gives the people opportunities to ward off the inadmissi-
ble and strained demands of the government j 1
It is necessary for a complete accusatorial procedure ;
It makes the administration of justice a matter of the peo-
ple, and awakens confidence ;
It binds the citizen with increased public spirit to the
government of his commonwealth, and gives him a constant
and renewed share in one of the highest public affairs, the
application of the abstract law to the reality of life the ad-
ministration of justice ;
It teaches law and liberty, order and rights, justice and
government, and carries this knowledge over the land ; 2 it is
the greatest practical school of free citizenship ;
It throws a great part of the responsibility upon the people,
and thus elevates the citizen while it legitimately strengthens
the government;
It does not only elevate the judge, but makes him a popular
1 The whole history of the libel down to Charles Fox's immortal bill
may serve as an illustration.
2 Lord Chancellor Cranworth said, in February, 1853, in the house of
lords :
"There were many other subjects to be considered. Trial by judge
instead of by jury had been eminently successful in the county courts ;
but in attempting to extend this to cases tried in other courts, we must
not lose sight of the fact that we should be taking a step towards unfit-
ting for their duties those who are to send representatives to the other
house of parliament, who are to perform municipal functions in towns,
and who are to exercise a variety of those local jurisdictions which con-
stitute in some sort in this country a system of self-government. It
may be very dangerous to withdraw from them that duty of assisting in
the administration of justice. Mechanics' schools may afford valuable
instruction, but I doubt if there is any school that reads such practical
lessons of wisdom, and tends so much to strengthen the mind, as assist-
ing as jurymen in the administration of justice."
240 ON CIVIL LIBERTY
magistrate, looked up to with confidence and favor ; which is
nowhere else the case in the same degree, and jet is of great
importance, especially for liberty ;
It is the great bulwark of liberty in monarchies against the
crown ;
It stands, in republics, as a committee of the people, between
the accused and the people themselves, a more exacting king
when excited than one that wears a crown ;
It alone makes it possible to decide to the satisfaction of the
public those cases which must be decided, and which, never-
theless, do not lie within the strict limits of the positive law ;
It alone makes it possible to reconcile, in some degree, old
and cruel laws, if the legislature omits to abolish them, with
a spirit of humanity, which the judge could never do without
undermining the ground on which alone he can have a firm
footing ;
It is hardly possible to imagine a living, vigorous, and ex-
panding common law without it ;
It is with the representative system one of the greatest in-
stitutions which develop the love of the law, and without this
love there can be no sovereignty of the law in the true sense ;
It is part and parcel of the Anglican self-government ;
It gives to the advocate that independent and honored
position which the accusatorial process as well as liberty re-
quires, and it is a school for those great advocates without
which broad popular liberty does not exist.
Mr. Hallam, speaking in his work on the Middle Ages of
" the grand principle of the Saxon polity, the trial of facts
by the country," says, "from this principle (except as to that
preposterous relic of barbarism, the requirement of unanimity,)
may we never swerve may we never be compelled in wish to
swerve by a contempt of their oaths in jurors, a disregard
of the just limits of their trusts." To these latter words I
shall only add, that the fact of the jury's being called by the
law, the country, and of the indicted person's saying that
he will be tried by God and his country, are facts full of
meaning, and expressive of a great part of the beauty and the
AND SELF-GOVERNMENT. 241
advantages of the trial by jury. 1 There is, however, no
mysterious efficacy inherent in this or any other institution,
nor any peculiar property in the name. Juries must be well
organized, and must conscientiously do their duty. They be-
come, like all other guarantees of liberty, very dangerous in
the hands of the government, when nothing but the form is
left, and the spirit of loyalty and of liberty is gone. A cor-
rupt or facile jury is the most convenient agent for despotism,
or a sure road to anarchy.
The jury trial has been mentioned here as one of the gua-
rantees of liberty, and it might not be improper to add some
remarks on the question whether the unanimous verdict ought
to be retained, or whether a verdict as the result of two-thirds
or a simple majority of jurors agreeing, ought to be adopted.
This is an important subject, occupying the serious attention
of many persons. But, however important the subject may
be, and connected as I believe it to be with the very continu-
ance of the trial by jury as a wholesome institution, and with
the supremacy of the law, it is one still so much debated that
a proper discussion would far exceed the limits to which this
work is restricted ; and the mere avowal that it is my firm
conviction, after long observation and study, that the una-
nimity principle ought to be given up, would be of no value. 2
1 On all these subjects connected with the jury I must refer to the
Political Ethics.
2 My conviction has been much strengthened since the original writ-
ing of this work. The Scottish jury (consisting of fifteen members)
decides by majority. Our continued failures of verdicts would cease.
Whenever the jury is out more than half an hour, it is a pretty sure sign
that the unanimity is, after all, only one in form and not in truth. Per-
haps most professional men adhere to the unanimity principle, but
reforms very rarely proceed from the profession, in any sphere. It was
not the theologians of the pope from whom the reformation proceeded.
We can add, however, high authority in favor of our opinion. In
January, 1859, Lord Campbell, chief justice of England, declared in
court, after the jury had pronounced an absurd verdict, which he declined
accepting, that he intended to propose a bill, in parliament, for the pur-
pose of adopting the majority principle in civil cases ; and while I was
16
242 ON CIVIL LIBERTY
I beg, however, to add as a fact, at all events of interest to
the student, that Locke was against the unanimity principle.
His constitution for South Carolina has this provision:
"Every jury shall consist of twelve men; and it shall not be
necessary they should all agree, but the verdict shall be ac-
cording to the consent of the majority."
The " duke's laws" in New York, generally ascribed to the
Lord Chancellor Clarendon, the father-in-law of the Duke of
York, demanded seven jurors, and unanimity only in capital
cases. 1
It is, besides, well-known that our number of twelve jury-
men, and the principle of their unanimity, arose from the
circumstance that in ancient times at least twelve of the
compurgators were obliged to agree before a verdict could be
given, and that compurgators were added until twelve of them
agreed one way or the other. 2
I conclude here my remarks on the institution of the jury,
and pass over to the last element of the independence of the
law the independent position of the advocate.
42. Where the inquisitorial trial exists, where the judiciary
in general is not independent, and where the judges more or
less feel themselves, and are universally considered, as govern-
ment officers, it is in vain to look for independent advocates,
as a class of men. Their whole position, especially where
the trial is not public, prevents the development of this inde-
pendence, and the consideration they have to take of their
future career would soon check it where it might occasionally
happen to spring forth. 3
revising these pages, a very respectable petition, urged even by judges,
to allow judges to decide in civil cases by the majority of jurymen, when
they cannot agree on a unanimous verdict, was presented to the Massa-
chusetts legislature. I consider, however, the principle of verdicts by
two-thirds in penal cases even more important than in civil cases.
1 Judge Daly's Historical Sketch of the Judicial Tribunals of New
X"ork ; New York, 1855, page 53.
a Forsyth, History of the Trial by Jury.
s Feuerbach, in his Manual of the Common German Penal Law, 10th
edition, 623, says that in the inquisitorial proceeding we have to re-
. AND SELF-GOVERNMENT. 243
The independence of the advocate is important in many re-
spects. The prisoner, in penal trials, ought to have counsel.
Even Lord Jeffreys, who, among judges, is what Alexander VI.
was among popes, declared it, as far back as the seventeenth
century, a cruel anomaly that counsel were permitted in a
case of a few shillings, but not in. a case of life and death.
But counsel of the prisoner can be of no avail, if they do not
feel themselves independent in a very high degree. This in-
dependence is necessary for the daily protection of the citizen's
rights. It is important for a proper and sound development
of the law ; for it is not only the decisions of the judges which
frequently settle the most weighty points and rights, but also
the masterly arguments of the advocates; and lastly, it is im-
portant in all so-called political trials.
May we never have reason to wish it otherwise ! The limits
of the advocate, especially as counsel in criminal cases, and
which doubtless form a subject connected with liberty itself,
present the judge to our minds as the representative of the offended
state, inasmuch as it is his duty to see justice done for it according to
the penal law ; as representative of the accused, inasmuch as he is bound
at the same time to find out everything on which innocence or a less
degree of criminality can be founded ; and finally, as judge, inasmuch as
he must decide upon the given facts. Why not add to this fearful triad,
the jailer, the executioner?
Although a " defensor" is appointed, it is difficult for him to do his
work properly; for in the German inquisitorial process the defence begins
when the inquiring judge has finished, or the "acta" are closed, that is,
when the written report of the judge is made. Now, a lawyer does not
feel very free to attack the writing of a judge, upon whom his advance-
ment probably depends, even if any latitude were given to the advocate.
Mr. Mittermaier, note d, \ 14, of his Art of Defending, 2d edition, speaks
openly of the great difficulty encountered by the " defensor," in unveil-
ing the imperfections of the acta which have been sent him, because he
thereby offends his superior, upon whom his whole career may depend ;
and Mr. Voget, the defensor of the woman Gottfried, in Bremen, who
had poisoned some thirty persons, fully indorses these remarks of Mr.
Mittermaier, in his work, The Poisoner, G. M. Gottfried, Bremen, 1830,
(first division, pp. 17 and 18.) He concludes his remarks with these
words: "Who does not occasionally think of the passage,! Sam. 29 :
6 Non inveni in te quidquam mali, sed satrapis non places," (or, as our
version of the bible has it: Nevertheless, the lords favor thee not.)
214 ON CIVIL LIBERTY
nevertheless belong more properly to political and especially
to legal ethics. As such I have treated of them in the Politi-
cal Ethics. I own, however, that, when writing the work, the
topic had not acquired in my mind all the importance and
distinctness which its farther pursuit, and the perusal' of works
on this important chapter of practical ethics, have produced.
I am sorry to say that very few of these works or essays seem
manfully to grapple with it, and to put it upon solid ground.
It is desirable that this should be done thoroughly and philo-
sophically. This is the more necessary, as the loosest and
vaguest notions on the rights of the advocate are entertained
by many respectable men, and the most untenable opinions
have been uttered by high authorities. 1
In this work, however, all that I am permitted to do is to
indicate the true position of the advocate in our Anglican
system of justice, and to allude to the duties flowing from it.
Most writers discuss "the time-honored usage of the pro-
fession in advocating one side," and of saying all that can be
said in defence of the prisoner. No one at all conversant with
the subject has ever had any doubt upon this point. It is
a necessary effect of the accusatorial procedure. Indeed, it
forms an essential part of it. But the writers go on maintain-
ing that, therefore, the advocate may, and indeed must, do
and say for his client all that the latter would do and say for
himself, had he the requisite talent and knowledge. And here
lies the error, moral as well as legal. 2
1 For instance, Lord Brougham's well-known assertion uttered at the
trial of Queen Caroline often commented upon, but never taken back
or modified by the speaker; 'p. 91, Legal and Political Hermeneutics.
See also an article on License of Counsel in the January number, 1841,
of Westminster Review. The case of Sir Arthur Pigott, attorney-
general of the Duchy of Cornwall, stating in court, for the Prince of
Wales, that he had never heard of bonds of the Dutch loan, which the
prince and some of his brokers had made, has been referred to before.
The list of shameful tricks actual tricks to which counsel have occa-
sionally resorted in our courts, would require a large space.
8 Consult Hortensius: an Historical View of the Office and Duties of
an Advocate, by William Forsyth ; London, 1853.
AND SELF-GOVERNMENT. 245
No man is allowed to do wrong, for instance to tell an
untruth, or to asperse the character of an innocent person,
either in his own behalf or for another. The prisoner would
do wrong in lying, and no one has a right to do it for him.
The lawyer is no more freed from the moral law or the obliga-
tion of truth than any other mortal, nor can he divest himself
of his individuality any more than other men. If he lies, he
lies as every other man, at his own individual peril. If, as
Lord Brougham stated it, the only object of counsel is to free
the prisoner, at whatever risk, why, then, not also do certain
things for the prisoner which he would do, were he free?
Many an indicted murderer would make away with a danger-
ous witness, if the prison did not prevent him. Why, then,
ought not the lawyer to do this for him ? Because it would
be murder ? And why not ? If the advocate is to say and do
all the prisoner would do and say for himself, irrespective of
morality, the supposed case is more glaring, indeed, but in
principle the same with many actual ones. The fact is, the
rights of the advocate, or the defence of his speaking on one
side, cannot be put on a worse foundation than by thus making
him a part of the prisoner's individuality, or a substitute. Nor
would there be a more degrading position than that of letting
one's talent or knowledge for hire, no matter whether for just
or unjust, moral or immoral purposes. Indeed, why should
this knowledge for hire begin its appropriate operation during
the trial only, if escape is the only object ? Why not try to foil
the endeavors of the detective police ? Is it only because the
retaining fee has not yet been paid, and that, so soon as it is in
the advocate's hand, he has a right to say, with the ancient poet:
I deem no speaking evil that results in gain ?* This cannot be.
All of us have learned to venerate Socrates, whom Lord Mans-
field calls the greatest of lawyers, for having made victorious
war on the sophists, and having established ethics on pure and
dignified principles ; and now we are called upon to sanction
everything, without reference to morality and truth, in an en-
1 Joxtu nkv vudsv pi/pa GUV xspdtt xdxov.
ON CIVIL LIBERTY
tire and highly privileged classs, and in the performance of
the most sacred business of which political man has any
knowledge. If lawyers insist upon this revolting exemption
from the eternal laws of truth and rectitude, they ought to
consider that this will serve in the end as a suggestion to the
people of returning to the Athenian court of the people.
The true position of the advocate in the Anglican accusato-
rial trial, and in a free and orderly country, is not one which
would almost assimilate him to the "receiver." It is a far
different one. Nearly in all free countries, but especially in
all modern free countries, has the advocate assumed a promi-
nent position. He is an important person as advocate, and as
belonging to that profession from which the people necessarily
must always take many of their most efficient law-makers,
from which arise many of the greatest statesmen, whatever
the English prejudice, even of such men as Chatham, to the
contrary may long have been, and which has formed in free
states many of their immortal orators. 1
1 There was a time when diplomacy and dishonest subtlety were
nearly synonymous when it was discussed how signatures might be
written so that after a number of years they would vanish. Since that
time, diplomacy has signally improved. We are now living in an age
in which a corresponding improvement is manifestly going on in legal
ethics. We discuss the pertinent topics at least, and public attention is
alive. The following article, taken from the London Spectator, Slept.
3, 1853, may find an appropriate place in a note :
' However little the Smyth case can have answered the purpose of
the man who claimed the property, it will not be entirely without bene-
ficial result, since it has put in a very strong light a moral which has
not escaped the legal profession. Some time ago it was argued, that a
barrister becomes completely the agent and advocate of his client, en-
gaged solely to present all that may be said on the side of that client,
and disengaged from any moral responsibility as to the merits of the
case. This doctrine, however, although it was convenient for the con-
sciences of professional men less sensitive than Romilly, could not be
sustained entirely ; and barristers have gone to the equally erroneous
opposite extreme that of throwing up a brief as soon as a grossly
fraudulent character was exposed in their case. Mr. Bovill threw up
his brief in the Smyth case, and in doing so, we think, violated the true
principle upon which a barrister should act ; a principle which has not
AND SELF-GOVERNMENT. 247
The advocate is part and parcel of the whole machinery of
administering justice, as much so as the jury, the judge, or
the prosecutor. He forms an integral part of the whole con-
trivance called the trial; and the only object of the trial is to
find out legal truth, so that justice may be administered. In
this trial, it has been found most desirable to place the judge
beyond the parties, to let both parties appear before him, and
to let both parties say all they can say in their favor, so that
the truth may be ascertained without the judge's taking part
in the inquiry, and thus becoming personally interested in the
conviction, or in either party. The advocate is essentially an
amicus curse ; he helps to find the truth, and for this purpose
it is necessary that all that can be said in favor of his client
or in mitigation of the law, be stated ; because the opposite
been unrecognized by the profession. It is, that the barrister is engaged
for the purpose of seeing that his client be treated according to law
and in no other way ; that he have all the evidence that can be procured
and set forth for him ; that the evidence be taken according to rule and
practice ; that the judge charge the jury according to law and rule ; in
short, that the whole proceedings be regular and complete in all that
is required on the part of the client. Acting on this principle, the
barrister can retain his brief to the last, as well as on the principle
of absolute agency ; but he is not required to be an accomplice in
suborning false evidence, or in setting forth pleas that he knows to be
fraudulent ; nor is he bound to anticipate the judgment by a declaration
of the verdict in the act of throwing up his brief.
" This principle has been recognized so far that there is a prospect of
its becoming more generally adopted as the rule of the profession. But
the Smyth case suggests to us, that it may very properly be extended to
the other half of the profession the attorneys. They are bound to
exercise discretion in their conduct with their clients, otherwise they
become parties to conspiracy and fraud. Considering all the oppor-
tunities that a man in the profession has of discriminating, it is difficult
to find him thus placed and to acquit him either of an extraordinary
degree of dulness or of culpable knowledge. It is, for example, exces-
sively difficult to understand how any professional man could see Smyth,
hear him tell his lies nay, take them down in writing in order to insert
them in the brief and not understand the whole character of the fraud.
Now no attorney would put himself into this position, however fraud-
ulent his client might be, if he confined himself to the principle which
we have mentioned as adopted by barristers."
248 ON CIVIL LIBERTY
party does the opposite, and because the case as well as the
law ought to be viewed from all sides, before a decision be
made. The advocate ought not only to say all that his client
might say, had he the necessary skill and knowledge, but even
more ; but the client or prisoner has no right to speak the
untruth in his own behalf, nor has the lawyer the right to do
it for him.
Chief Justice Hale severely reproves the misstating authori-
ties and thus misleading the court ; but why should this be
wrong, and the misstating of facts not? Many prisoners
would certainly misstate authorities if they could. Trials are
not established for lawyers to show their skill or to get their
fees, nor for arraigned persons to escape. They are esta-
blished as a means of ascertaining truth and dispensing jus-
tice; not to promote or aid injustice or immorality. The
advocate's duty is, then, to say everything that possibly can
be said in favor of his case or client, even if he does not feel
any strong reliance on his argument, because what appears to
himself weak may not appear as such to other minds, or may
contain some truth which will modify the result of the whole.
But he is not allowed to use falsehood, nor to injure others.
Allowing this to him would not be independence, but an arbi-
trarily privileged position, tyrannical toward the rest of so-
ciety. 1 To allow tricks to a whole profession, or to claim
them by law, seems monstrous. There is no separate deca-
logue for lawyers any more than for king, partisan or beadle.
The lawyer is obliged, as was stated before, to find out
everything that can be found in favor of the person who has
intrusted himself to his protecting care, because the opposite
1 The famous case of Mr. Philips, now on the bench, when defending
Courvoisier, is treated at considerable length in Townsend's Modern State
Trials, under the trial of Courvoisier. It must be allowed that the de-
fence is not successful, though ingenious. On page 312 of vol. i. of that
work, the reader will also find the titles of numerous writings bearing
on the moral obligations of the advocate, to which may be added those
I have mentioned in the notes appended to my remarks on the advocate
in the 2d vol. of the Political Ethics. I also refer to pp. 59 and sequ.
in my Character of the Gentleman ; Charleston, S. C. 1847.
AND SELF-GOVERNMENT. 249
will be done by the opposite party. He has no right to de-
cline the defence of a person, which means the finding out for
him all that fairly can be said in his favor, except indeed in
very peculiar cases. Declining the defence beforehand would
amount to a prejudging of the case, and in the division of
judicial labor every one ought to be defended. 1 The defence
of possible innocence, not the defeat of justice, is the aim of
counsel.
Great advocates, such as Romilly, 2 have very distinctly
pronounced themselves against that view which still seems the
prevailing one among the lawyers ; and Dr. Thomas Arnold
was so deeply impressed with the moral danger to which the
profession of the law, at present, exposes its votary, that
he used to persuade his pupils not to become lawyers, while
1 At the very moment that these pages are passing through the press,
(in 1853,) a case has occurred in an English court, of a young man indicted
for burglariously entering the room of some young woman. His counsel
in the defence suggested that probably the young lady had given an
appointment to the prisoner. " That is not in the brief," cried the pri-
soner himself, and the court justly reprimanded the barrister. It ought
to be added that in this case the barrister wrote a letter of submission
to the court. This has not been done in other cases quite as bad in
principle. Thus, another publicly reproved barrister insisted that he
had done what the profession required, when he had resorted to the fol-
lowing trick. He had subpoenaed the chief witness against his client, so
that he could not appear, and then argued that the prosecutor must
know his client to be innocent, else he would certainly have produced
his witness, etc.
Since this was written, the following case has occurred (in Cincinnati,
1853.) When the defence came on, 300 witnesses were sworn. The
prosecution of course did not believe that its turn would come for a
long time. But the defence only examined some four witnesses, and
then declared it had done. The prosecution was not prepared to pro-
ceed, and asked for delay, but the court decided that the case could not
be stopped. Thus the whole trial was upset, and a verdict of not guilty
was found. Now, are such atrocities* to be borne with? Does freedom
consist in giving all possible protection to trickery?
2 There is a very excellent passage on this topic in the reflections
of Sir Samuel Romilly, on himself and the good he might do, should he
be appointed lord chancellor, page 384 and sequ. of vol. iii. of his Me-
moirs ; 2d ed. London, 1840.
250 ON CIVIL LIBERTY.
Mr. Bentham openly declared that no person could escape,
and that even Romilly had not remained wholly untainted.
It ought to be observed, however, that a more correct opinion
on the obligations of the advocate seems to be fast gaining
ground in England. At present it seems to be restricted to
the public, but the time will come when this opinion will reach
the profession itself. Like almost all reforms, it comes from
without, and will ultimately force an entrance into the courts
and the inns. We are thus earnest in our desire of seeing
correct views on this subject prevail, because we have so high
an opinion of the importance of the advocate in a modern free
polity. 1
1 This was written in 1853.
CHAPTER XXI.
SELF-GOVERNMENT.
THE last constituent of our liberty that I shall mention is
local and institutional self-government. 1 Many of the guaran-
1 The history of this proud word is this : It was doubtless made in
imitation of the Greek autonomy, and seems originally to have been used
in a moral sense only. It is of frequent occurrence in the works of the
divines who flourished in the sixteenth and seventeenth centuries. After
that period it appears to have been dropped for a time. We find it in
none of the English dictionaries, although a long list of words is given
compounded with self, and among them many which are now wholly out
of use ; for instance, Shakspeare's Self-sovereignty. In Dr. "Worcester's
Universal and Crit. Dictionary, the word is marked with a star, which
denotes that he has added it to Dr. Johnson's, and the authority given is
Paley, who, to my certain knowledge, does not use it in his Political
Philosophy, nor have several of my friends succeeded in finding it in any
other part of his works, although diligent search has been made.
Whether the term was first used for political self-government in Eng-
land or America I have not been able to ascertain. Richard Price, D.D.,
used it in a political sense in his Observations on the Nature of Civil
Liberty, etc., 3d edition, London, 1776, although it does not clearly ap-
pear whether he means what we now designate by independence, or in-
ternal (domestic) self-government. Jefferson said, in 1798, that "the
residuary rights are reserved to their (the American states) own self-
government." The term is now freely used both in England and Ame-
rica. In the former country we find a book on Local Self-government ;
in ours, Daniel Webster said, on May the 22d, 1852, in his Fanenil Hall
speech : " But I say to you and to our whole country, and to all the
crowned heads and aristocratic powers and feudal systems that exist,
that it is to self-government, the great principle of popular representation
and administration the system that lets in all to participate in the coun-
sels that are to assign the good or evil to all that we may owe what we
are and what we hope to be."
Earl Derby, when premier, said, in the house of lords, that the officers
(251)
252 ON CIVIL LIBERTY
tees of individual liberty which have been mentioned receive
their true import in a pervading system of self-government,
and on the other hand are its refreshing springs. Individual
liberty consists, in a great measure, in politically acknowledged
self-reliance, and self-government is the sanction of self-re-
liance and self-determination in the various minor and larger
circles in which government acts and of which it consists.
sent from abroad to assist in the funeral of the Duke of Wellington,
would " bear witness back to their own country how safely and to what
extent a people might be relied upon in whom the strongest hold of
their government was their own reverence and respect for the free insti-
tutions of their country, and the principles of popular self-government
controlled and modified by constitutional monarchy."
In one word, self-government is now largely used on both sides of the
Atlantic, in a political sense.
This modern use of the word is no innovation, as it was no innovation
when St. Paul used the old Greek word ^iartq in the vastly expanded
sense of Christian faith. Ideas must be designated. The innovation was
Christianity itself, not the use of the word to designate an idea greater
than Pistis could have signified before.
That self-government in politics is always applied by the English-
speaking race for the self-government of the people or of an institution,
in other words, that self has in this sense a reflective meaning, is as na-
tural as the fact itself that the word has come, in course of time, to be
applied to political government, simply because we must express the
idea of a people or a part of a people who govern themselves and are not
governed by some one else.
Self-government belongs to the Anglican race, and the English word
is used even by foreigners. A German and a French statesman, both
distinguished in literature and politics, used not long ago the English
word in conversations in their own languages with me.
Donaldson's Greek Dictionary renders aurovojua with self-government.
The word self, or its corresponding term in other languages, may have
a reflective sense, as in self-murder, or it may have a merely emphatic or
exclusive meaning, tpse, he himself. Hence the fact that the Emperor of
Russia calls himself autocrat of all the Russias, (self- ruler, himself and
alone the ruler,) and we use the corresponding word self-government for
the opposite, the government in which the ruling is left to the ruled. The
old English self-sovereign is the exact rendering of autocrat. The Ger-
mans use the word Selbst-Verlag, i.e. sale of the book by the author
himself. German wine-shops in New York have frequently on their
signs in English, the ludicrous words, Self-Imported Wines.
AND SELF-GOVERNMENT. 253
"Without local self-government, in other words, self-government
consistently carried out and applied to the realities of life,
and not remaining a mere general theory, there is no real self-
government according to Anglican views and feelings. Self-
government is founded on the willingness of the people to take
care of their own affairs, and the absence of that disposition
which looks to the general government for everything ; as well
as on the willingness in each to let others take care of their
own affairs. It cannot exist where the general principle of
interference prevails, that is, the general disposition in the
executive and administration, to do all it possibly can do, and
to substitute its action for individual or minor activity and for
self-reliance. Self-government is the corollary of liberty.
So far we have chiefly spoken of that part of liberty which
consists in checks, except indeed when we treated of repre-
sentative legislatures; self-government may be said to be
liberty in action. It requires a pervading conviction through-
out the whole community that government, and especially the
executive and administrative branch, should do nothing but
what it necessarily must do, and which cannot, or ought not, or
will not be done by self-action ; and that, moreover, it should
allow matters to grow and develop themselves. Self-govern-
ment implies self-institution, not only at the first setting out
of government, but as a permanent principle of political life.
In a pervading self-government, the formative action of the
citizens is the rule; the general action of the government is
the exception, and only an aid. The common action of
government in this system is not originative, but regulative
and moderative, or conciliative and adjusting. Self-govern-
ment, therefore, transacts by far the greater bulk of all public
business through citizens, who, even while clad with authority,
remain essentially and strictly citizens, and parts of the peo-
ple. It does not create nor tolerate a vast hierarchy of offi-
cers, forming a class of mandarins for themselves, and acting
as though they formed and were the state, and the people
only the substratum on which the state is founded, similar to
the former view that the church consists of the hierarchy of
254 ON CIVIL LIBEKTY
priests and that the laity are only the ground on which it
stands.
A pervading self-government, in the Anglican sense, is
organic. It does not consist in the mere negation of power,
which would be absurd, for all government implies power,
authority on the one hand and obedience on the other ; nor
does it consist in mere absence of action, as little as the
mere absence of censorship in China is liberty of the press.
It consists in organs of combined self-action, in institutions,
and in a systematic connection of these institutions. It is
therefore the opposite at once of a disintegration of society
into individual, dismembered and disjunctive independencies,
and of despotism, whether this consists in the satrap despot-
ism of the east, (in which the pacha or satrap embodies indeed
the general principle of unfreedom in relation to his superior,
but is a miniature despot or sultan to all below him,) or
whether it consist in the centralized despotism resting on a
dense and thoroughly systematized hierarchy of officials, as
in China, or in the European despotic countries. Anglican
self-government differs in principle from the sejunction into
which ultimately the government of the Netherlands lapsed ;
and it is equally far from popular absolutism, in which the
majority is the absolute despot. The majority may shift, in-
deed, in popular absolutism, but the principle does not, and the
whole can only be called a mutually tyrannizing society, not
a self-government. An American orator of note has lately
called self-government, a people sitting in committee of the
whole. It is a happy expression of what he conceives self-
government to be. We understand aj; once what he means;
but what he means is the Athenian market democracy, in its
worst time, or as a French writer has expressed it, Le peuple-
empereur, the people-despot. It is, in fact, one of the oppo-
sites of self-government, as much so as the one expressed
in the favorite saying of Napoleon I.: "Everything for the
people, nothing by the people." Self-government means
Everything for the people, and by the people, considered as
the totality of organic institutions, constantly evolving in their
AND SELF-GOVERNMENT. 255
character, as all organic life is, but not a dictatorial multitude.
Dictating is the rule of the army, not of liberty; it is the
destruction of individuality. But liberty, as we have seen,
consists in a great measure in protection of individuality.
While Napoleon I. thus epigrammatically expressed the
essence of French centralization, 1 his chief antagonist, Wil-
liam Pitt, even the tory premier, could not help becoming the
organ of Anglican self-government, as appears from the anec-
dote, which I relate in full as it was lately given to the public,
because the indorsement by the uncompromising soldier gives
it additional meaning :
" A day or two before the death of the Duke of Wellington,
referring to the subject of civic feasts, he told an incident in
the life of Pitt which is worth recording. The last public
dinner which Pitt attended was at the Mansion house ; when
his health was proposed as the savior of his country. The
duke expressed his admiration of Pitt's speech in reply; which
was in substance, that the country had saved herself by her
own exertions, and that every other country might do the
same by following her example." 2
Self-government is in its 'nature the opposite to political
apathy and that moral torpidity or social indifference which is
sure to give free play to absolutism, or else to dissolve the
whole polity. We have a fearful instance in the later Roman
empire. It draws its strength from self-reliance, as has been
stated, and it promotes it in turn; it cannot exist where
1 As to the first part of this imperial dictum tout pour le peuple we
know very well how difficult it is to know what is for the people, without
institutional indexes of public opinion, and how easy it is, even for the
wisest and the best, to mistake and substitute individual, family and
class interests, and passions, for the wants of the people. This, indeed,
constitutes one of the inherent and greatest difficulties of monarchical
despotism. A benevolent eastern despot could not have said it, for there
is no people, politically speaking, in Asia ; and for a European ruler it
was either hypocritical, or showing that Napoleon was ignorant of the
drift of modern civilization, of which political development forms so large
a portion.
2 London Spectator of September 18, 1852.
256 ON CIVIL LIBERTY
there is not in each a disposition and manliness of character
willing and able to acknowledge it in others. Nothing strikes
an observer, accustomed to Anglican self-government, more
strongly in France than the constant desire and tendency
even in the French democracy to interfere with all things
and actions, and to leave nothing to self-development. Self-
government requires politically, in bodies, that self-rule which
moral self-government requires of the individual the readi-
ness of resigning the use of power which we may possess,
quite as often as using it. Yet it would be a great mistake
to suppose that self-government implies weakness. Absolut-
ism is weak. It can summon great strength upon certain
occasions, as all concentration can ; but it is no school of
strength or character; nor is a certain concentration by any
means foreign to self-government, but it is not left in the
hands of the executive, to use it arbitrarily. Nor is it main-
tained that self-government necessarily leads in each single
case soonest and most directly to a desired end, especially
when this belongs to the physical welfare of the people ; nor
that absolute and centralized governments may not occasion-
ally perform brilliant deeds, or carry out sudden improvements
on a vast scale which it may not be in the power of self-
governments so rapidly to execute. But the main question
for the freeman is which is the most befitting to man in his
nobler state ; which produces the best and most lasting results
upon the whole and in the long run ; which effects the greatest
stability and continuity of development; in which is more
action of sound and healthful life and not of feverish parox-
ysms ; which possesses the greatest tenacity ? Is it the bril-
liant exploits which constitute the grandeur of nations if sur-
veyed in history, and are there not many brilliant actions
peculiar to self-government and denied to centralized abso-
lutism ?
In history at large, we observe that the material and bril-
liant influence of states is frequently in accordance with their
size and the concentration of their governments ; but that the
lasting and essential influence exercised by states is in proper-
AND SELF-GOVERNMENT. 257
tion to their vigorous self-government. This influence, how-
ever, is less visible, and requires analyzing investigation, to be
discovered and laid open. The influence of England on the
whole progress of our race has been far greater than that of
France, but far less brilliant than that of the period of Louis
XIV. A similar observation may be made in all spheres.
The influence which the mind of Aristotle has had on our race
far surpasses the effects of all the brilliant exploits of his im-
perial pupil, yet thousands learn the name of Alexander the
Great, even in our primary schools, who never hear of Aris-
totle. Nature herself furnishes man with illustrations of this
fact. The organic life Avhich silently pervades the whole with
a creative power, is not readily seen, while convulsions, erup-
tions and startling phenomena attract the attention, or cause
at least the wonder of the least observing.
Where self-government does not exist, the people are always
exposed to the danger that the end of government is lost
sight of, and that governments assume themselves as their
own ends, sometimes under the name of the country, some-
times under the name of the ruling house. Where self-
government exists, a somewhat similar danger presents itself
in political parties. They . frequently assume that they
themselves are the end and object, and forget that they can
stand on defensible ground only if they subserve the country.
Man is always exposed to the danger of substituting the means
for the ends. The variations we might make on the ancient
Proptcr vitam vivendi perdere causas, with perfect justice, are
indeed endless. 1
Napoleon I., who well knew the character of absolute
government and pursued it as the great end of his life, never-
theless speaks of the "impuissance de la force" the impotency
1 Do not all the following, and many more, find their daily or historical
applications : Propter imperium imperandi perdere causas ; Propter
ecclesiam ecclesiae perdere causas ; Propter legem legis perdere causas ;
Propter argumentationem argument! perdere causas ; Propter dictiouera
diccudi perdere causas ?
17
258 ON CIVIL LIBERTY
of power. 1 He felt, on his imperial throne, which on another
and public occasion he called wood and velvet unless occupied
by him, and which was but another wording of Louis XIV.'s
I'e'tat c'est moi, that which all sultans have felt when their
janizaries deposed them he felt, that of all governments the
czar-government is the most precarious. He felt what, with
other important truths, Mr. de Tocqueville had the boldness to
tell the national assembly, in a carefully considered report of
a committee, in 1851, when he said:
"That people, of all nations in the whole world, which has
indeed overthrown its government more frequently than any
other, has, nevertheless, the habit, and feels more than any
other the necessity of being ruled.
" The nations which have a federal existence, even those
which, without having divided the sovereignty, possess an
aristocracy, or who enjoy provincial liberties deeply rooted in
their traditions these nations are able to exist a long time
with a feeble government, and even to support, for a certain
period, the complete absence of a government. Each part of
the people has its own life, which permits society to support
itself for some time when the general life is suspended. But
are we one of those nations ? Have we not centralized all
matters, and thus created of all governments that which, in-
deed, it is the easiest to upset, but with which it is at the same
time the most difficult to dispense for a moment?" 2
1 The Memoirs of Count Miot, the first volumes of which have lately
been published, show more in detail, than any other work, with what
eagerness, consistency and boldness, Napoleon I. endeavored, step by
step, to break down every guarantee of liberty which the French peo-
ple had established. He did this so soon as he had been made consul
for life, and succeeded, through the newly-established senate and council
of state, in nearly all cases. When he attempted to abolish the trial by
jury, supported as he was by his high law-officers, the institution was
saved by a few men, showing, on that occasion, a degree of resolution
which had become rare, even at so early a period.
2 Mr. de Tocqueville made this report on the 8th of July, in the name
of the majority of that committee, to which had been referred several
propositions relating to a revision of the constitution. It was the time
AND SELF-GOVERNMENT. 259
With this extract I conclude, for the present, my remarks
on self-government, arid with them the enumeration of the
guarantees and institutions which characterize, and in their
aggregate constitute Anglican liberty.
when the constitutional term of the president drew to its end, and the
desire of annulling the ineligibility for a second terra became manifest.
It was the feverish time that preceded the second of December, destined
to become another of the many commentaries on the facility with which
governments founded upon centralization are upset, by able conspiracies
or by a terror-striking surprise, such as the revolution of February had
been, when the Orleans dynasty was expelled, and another proof how easy
it is in such states to obtain an acquiescent majority or its semblance.
In connection with the 'foregoing, I must ask leave to add the con-
cluding remarks of the Ancien Regime, published since the first edition
of Civil Liberty was issued. I know of no passage in modern literature
which reminds the reader so directly of the energy and gloom of Tacitus.
I quote from Mr. Bonner's translation, New York, 1856, and wish to say
that the whole work of Mr. de Tocqueville is a continued historical com-
mentary of all that is said in the present work on Gallican political ten-
dencies.
"When I examine that nation (the French) in itself, I cannot help
thinking it is more extraordinary than any of the events of its history.
Did there ever appear on the earth another nation so fertile in contrasts,
so extreme in its acts more under the dominion of feeling, less ruled by
principle ; always better or worse than was anticipated now below the
level of humanity, now far above ; a people so unchangeable in its lead-
ing features, that it may be recognized by portraits drawn two or three
thousand years ago, and yet so fickle in its daily opinions and tastes that
it becomes at last a mystery to itself, and is as much astonished as stran-
gers at the sight of what it has done ; naturally fond of home and routine,
yet once driven forth, and forced to adopt new customs, ready to carry
principles to any lengths, and to dare anything ; indocile by disposition,
but better pleased with the arbitrary and even violent rule of a sovereign,
than with a free and regular government under its chief citizens ; now
fixed in hostility to subjection of any kind, now so passionately wedded
to servitude that nations made to serve can not vie with it ; led by a
thread so long as no word of resistance is spoken, wholly ungovernable
when the standard of revolt has been raised thus always deceiving its
masters, who fear it too much or too little ; never so free that it can not
be subjugated, nor so kept down that it can not break the yoke ; quali-
fied for every pursuit, but excelling in nothing but war ; more prone to
worship chance, force, success, eclat, noise, than real glory ; endowed
260 ON CIVIL LIBERTY.
They prevail more or less developed wherever the Anglican
race has spread and formed governments, or established dis-
tinct polities. Yet, as each of them may be carried out with
peculiar consistency, or is subject to be developed under the
influence of additional circumstances, or as a peculiar character
may be given to the expansion of the one or the other element,
it is a natural consequence that the system of guarantees which
we have called Anglican, presents itself in various forms. All
the broad Anglican principles, as they have been stated, are
necessary to us, but there is, nevertheless, that which we can
call American liberty a development of Anglican liberty pe-
culiar to ourselves. Those features which may, perhaps, be
called the most characteristic, are given in the following chap-
ter.
with more heroism than virtue, more genius than common sense ; better
adapted for the conception of grand designs than the accomplishment of
great enterprises ; the most brilliant and the most dangerous nation of
Europe, and the one that is surest to inspire admiration, hatred, terror,
or pity, but never indifference ?
"No nation but such a one as this could give birth to a revolution so
sudden, so radical, so impetuous in its course, and yet so full of missteps,
contradictory facts, and conflicting examples. The French could not
have done it but for the reasons I have alleged ; but it must be admitted
even these reasons would not suffice to explain such a revolution in any
country but France."
CHAPTER XXII.
AMERICAN LIBERTY.
AMERICAN liberty belongs to the great division of Anglican
liberty. It is founded upon the checks, guarantees and self-
government of the Anglican race. 1 The trial by jury, the
representative government, the common law, self-taxation,
the supremacy of the law, publicity, the submission of the
army to the legislature, and whatever else has been enume-
rated, form part and parcel of our liberty. There are,
however, features and guarantees, which are peculiar to our-
selves, and which, therefore, we may say constitute American
liberty. They may be summed up, perhaps, under these
heads : republican federalism, strict separation of the state
from the church, greater equality and acknowledgment of ab-
stract rights in the citizen, and a more popular or democratic
cast of the whole polity.
The Americans do not say that there can be no liberty with-
out republicanism, nor do they, indeed, believe that wherever
a republican or kingless government exists, there is liberty.
The founders of our own independence acknowledged that
freedom can exist under a monarchical government, in the
very act of their declaration of independence. Throughout
1 We have discussed the trial by jury and even the grand jury, as
elements of Anglican liberty. I am now obliged to add, that when this
page was correcting for the press, the author learned that the state of
Michigan had passed a law by which, after the 12th day of April, 1859,
the grand jury is to be dispensed with as an ordinary instrument of cri-
minal proceeding, though power is reserved to the judges to resort to it
in certain special cases. The people of Michigan have thus shown an
inclination toward the French system. French, and continental Euro-
pean lawyers in general have an aversion to the grand jury.
(261)
262 ON CIVIL LIBERTY
that instrument the Americans are spoken of as freemen whose
rights and liberties England had unwarrantably invaded. It
rests all its assertions and all the claimed rights on the liberty
that had been enjoyed, and after a long recital of deeds of
misrule ascribed to the king, it says : " A prince, whose
character is thus marked by every act which may define a
tyrant, is unfit to be the ruler of a free people." It broadly
admits, therefore, that a free people may have a monarch,
and that the Americans were, and considered themselves a
free people before they claimed to form a separate nation.
Nevertheless it will be denied by no one that the Ameri-
cans believe that to be the happiest political state of things in
which a republican government is the fittest ; nor that repub-
licanism has thoroughly infused itself into all their institutions
and views. This republicanism, though openly pronounced at
the time of the revolution only, had been long, and historically
prepared, by nearly all the institutions and the peculiarly
fortunate situation of the colonies, or, it may be said, that the
republican elements of British self-government found a pecu-
liarly favorable soil in America from the first settlements.
A fault of England, to speak from an English point of view,
was of great service to American republicanism. England
never created a colonial aristocracy. Had she sprinkled this
country with a colonial peerage and put this peerage in some
vital connection with the peerage of Great Britain ; for instance,
had she allowed the colonial peers to elect representative peers
to sit in the British house of lords, as is the case with Scot-
tish peers, and had she given some proportionate precedence to
American noblemen, e.g. had she allowed an American duke
to take precedence with a British earl, she would have had a
strong support in this country at the time of the revolution.
Possibly, we would have had not only a simple war of inde-
pendence, but a civil war, and our so-called revolution, which
was no revolution in the sense in which we take the word when
we apply it to the revolutions of England and France, and
which in German is called an Abfall (severance,) must have
had a far different character. It was one of our great bless-
AND SELF-GOVERNMENT. 263
ings that we were not obliged to pass through an internal con-
vulsion in order to establish independence and republican free-
dom. It was a blessing, a fortune, vouchsafed us, not made
hy us a fact which we must never forget when we compare
our struggle, or that of the Netherlands, with the real revo-
lutions of other countries, if we desire to be just.
But it is not only republicanism that forms one of the pro-
minent features of American liberty, it is representative
republicanism and the principle of confederation or federal-
ism, 1 which must be added, in order to express this principle
correctly. We do not only consider the representative prin-
ciple necessary in all our states in their unitary character, but
the framers of our constitution boldly conceived a federal
republic, or the application of the representative principle
with its two houses to a confederacy. It was the first in-
stance in history. The Netherlands, which served our fore-
fathers as models in many respects, even in the name bestowed
on our confederacy, furnished them with no example for this
great conception. It is the chief American contribution to
the common treasures of political civilization. It is that
by which America will influence other parts of the world
more than by any other political institution or principle.
Already are voices heard in Australia for a representative
federal republic like ours. Switzerland, so far as she has of
late reformed her federal constitution, has done so in avowed
imitation of the federal pact of our Union. I consider the
mixture of wisdom and daring, shown in the framing of our
constitution, as one of the most remarkable facts in all history.
Our frame of government, then, is justly called a federal re-
public, with one chief magistrate elected by what the Greeks
called, in politics, the Koinon, the Whole, with a complete
representative government for that whole, a common army, a
judiciary of the Union, and with the authority of taxing the
whole. It is called by no one a league.
1 Federalism is taken here, of course, in its philosophical, and not in
its party sense.
264 ON CIVIL LIBERTY
Of the strict separation of the church from the state, in all
the federated states, I have spoken already. The Americans
consider it as a legitimate consequence of the liberty of con-
science. They believe that the contrary would lead to disastrous
results with reference to religion itself, and it is undeniable
that another state of things could not by possibility have been
established here. We believe, moreover, that the great mis-
sion which this country has to perform, with reference to
Europe, requires this total divorce of state and church (not
religion.) 1 Doubtless, this unstinted liberty leads to occasional
inconvenience ; even the multiplicity of sects itself is not
free from evils ; but how would it be if this divorce did not
exist ? The Americans cling with peculiar fervor to this very
principle.
We carry the principle of political equality much farther
than any free nation. We had no colonial nobility, although
some idea of establishing it was entertained in England when
the revolution broke out, and the framers of the constitu-
tion took care to forbid every state, and the United States
collectively, from establishing any nobility. Even the esta-
blishment of the innocent Cincinnati Society gave umbrage to
1 I lately saw a pamphlet written by an American minister, in which
the Constitution of the United States was called atheistical an expres-
sion I have seen before. I do not pretend exactly to understand its
meaning. I suppose, however, that the word atheistical is taken in this
case as purely negative, and as equivalent to non-mentioning God, not,
of course, as equivalent to reviling the deity. Even in this more mode-
rate sense, however, the expression seems to me surprising. There was a
time when every treaty, nay every bill of lading began with the words.
In the name of the Holy Trinity, and every physician put the alpha and
omega at the top of his recipe. Whatever the sources may have been
from which these usages sprang, I believe it will be admitted that the
modern usage is preferable, and that it does not necessarily indicate a
diminished zeal. The most religious among the framers may not have
thought of placing the name of God at the head of our constitution, for
the very reason that God was before their eyes, and that this occasion
did not suggest to them the idea of specially expressing their belief. Nee
deus intersit nisi dignus vindice nodus.
AND SELF-GOVERNMENT. 265
many. 1 We have no right of primogeniture. 2 This equality
has more and more developed itself, and all states I believe
have adopted the principle of universal suffrage. Property
qualification for voting does not exist any longer, and for being
elected, it exists in very few states. The Constitution of the
United States provides for representation in the lower house,
according to numbers, except that slave property is repre-
sented.
But here it must be observed that, however unqualifiedly
the principle of political equality is adopted throughout the
whole country with reference to the white population, it stops
short with the race. Property is not allowed to establish any
difference, but color is. Socially the colored man is denied
equality in all states, and politically he is so in those states in
which the free colored man is denied the right of voting, and
where slavery exists. I believe I may state as a fact that the
stanchest abolitionist, who insists upon immediate manumis-
sion of all slaves, does not likewise insist upon an immediate
admission of the whole manumitted population to a perfect
political equality. In this, however, I may be mistaken.
Two elements constitute all human progress, historical de-
velopment and abstract reasoning. It results from the very
nature of man, whom God has made an individual and a social
1 In Europe, where an accurate knowledge of the American state of
things did not exist, it was, I believe, universally considered as the be-
ginning of a new nobility, and pointed out as a glaring inconsistency.
2 We can do entirely without it as to property in land. Our abund-
ance of land does not require it ; but there are countries in which the
constant parcelling of land led to such a ruinous subdivision, that the
governments were obliged to establish a minimum beyond which land
shall not be allowed to be divided, and which, thus undivided, goes either
to the oldest or the youngest of the sons. The late president von Vincke.
one of the most distinguished Prussian statesmen, mentioned in an elabo-
rate report on the extreme division of land, that there had been a lawsuit in
the Rhenish province about a square foot or two of vineyard land. Such
cases, probably, are of frequent occurrence in China. What would be
said in those densely-peopled countries, of our Virginia or worm-fences,
which waste a strip of land five feet wide throughout the south and
west ?
266 ON CIVIL LIBERTY
being. His historical development results from the continuity
of society. 1 Without it, without traditional knowledge and
institutions, without education, man would no longer be man ;
without individual reasoning, without bold abstraction, there
would be no advancement either. Now, single men, entire
societies, whole periods will incline more to the one or to the
other element, and both present themselves occasionally in in-
dividuals and entire epochs as caricatures. One-sidedness is
to be shunned in this as in all other cases ; perfection, wisdom,
results from the well-balanced conjunction of both, and I do
not know any nobler instance of this wisdom than that which
is presented by the men of our revolution. They were bold
men, as I have stated already ; they went fearlessly to work,
and launched upon a sea that had as yet been little navigated,
when they proposed to themselves the establishment of a re-
public for a large country. Yet they changed only what im-
peratively required change ; what they retained constituted an
infinitely greater portion than that which they changed. It does
not require an extraordinary power of abstraction, nor very pro-
found knowledge, to imagine what must have been the conse-
quence, had they upset the whole system in which they lived,
and allowed their ill-will toward England, or a puerile vanity,
to induce them to attempt an entirely.^iew state of things.
They, on the contrary, adopted every principle and institu-
tion of liberty that had been elaborated by the English. They
acted like the legislators of antiquity. Had they acted other-
wise, their constitution must have proved a still-born child, as
so many other constitutions proclaimed since their days, have
done. Their absence of all conceit, and their manly calmness,
will forever redound to their honor.
It seems to me that while the English incline occasionally
too much to the historical element, we, in turn, incline occa-
sionally too much toward abstraction.
However this may be, it is certain that we conceive of the
rights of the citizen more in the abstract and more as attri-
This is treated more fully in the Political Ethics.
AND SELF-GOVERNMENT. 267
butes of his humanity, so long as this means our own white
race. Beyond it the abstraction ceases, so much so that the
supreme court lately decided that people of color (although
they Avere unquestionably subjects to the King of England be-
fore the independence of the United States) are not citizens
in the sense of the constitution, 1 and that several free states
have enacted laws against the ingress of people of color, which
seem to be founded exclusively on the power which the white
race possesses over the colored, and which elicit little exami-
nation because the first basis of all justice, sympathy, is want-
ing between the two races.
From this conception of the citizenship this carrying of
the ancient jus ante omnia jura natum, so long as it relates to
our own race, much farther than the English do arises the
fact that in nearly all states universal suffrage has been esta-
blished, while in England the idea of class representation much
more prevails. The Americans do not know, I believe, in a
single case the English rate-paying suffrage ; but it must be re-
corded that the serious misrule of American cities has induced
the opinion of many reflecting men that populous cities can not
be ruled by bare universal suffrage ; since universal suffrage,
applied to city governments, gives to the great majority, that
do not own houses, or land, the right to raise and dispose of
the taxes solely levied on real property.
On the other hand, it appears to Americans a flagrant act to
disfranchise entire corporate constituencies for gross pervading
bribery, as has been repeatedly done in English history. In-
deed the right of voting has been often pronounced in England
a vested right of property.
I have also stated that our whole government has a more
popular cast than that of England, and with reference to this
fact, as well as to the one mentioned immediately before it, I
would point out the following farther characteristics of Ameri-
can liberty.
1 The Dred Scott case, already so famous, but which will become far
more famous still in the course of our history.
268 ON CIVIL LIBERTY
We have established everywhere voting by ballot. There
is an annually increasing number of members voting in the
English commons for the ballot. It is desired there to pre-
vent intimidation. Probably it would have that effect in Eng-
land, but certainly not in such a degree as the English seem
to expect. The ballot does not necessarily prevent the vote
of a person from being known. 1 Although the ballot is so
strongly insisted upon in America, it is occasionally entirely
lost sight of.
"Tickets" printed on paper whose color indicates the party
which has issued it, are the most common things ; and, in the
place of my former residence, it happened some years ago that
party feeling ran to such a height, that, in order to prevent
melancholy consequences, the leaders came to an agreement.
It consisted in this : that alternate hours should be assigned
to the two parties, during which the members of one party only
should vote. This open defeat of the ballot was carried out
readily and in good faith.
The Constitution of the United States, and those of all the
states, provide that the houses of the legislatures shall keep
their journals, and that on the demand of a certain, not very
large, number of members, the ayes and noes shall be re-
corded. The ayes and noes have sometimes a remarkable effect.
It is recorded of Philip IV. of Spain, 2 that he asked the
opinion of his council on a certain subject. The opinion was
unanimously adverse, whereupon the monarch ordered every
counsellor to send in his vote signed with his name, and every
1 There is an instructive article on voting in the Edinburgh Review,
of October, 1852, on Representative Reform. The writer, who justly
thinks it all-important that every one who has the right to vote for a
member of parliament should vote, proposes written votes to be left at
the house of every voter, the blanks to be filled by him, as is now
actually done for parish elections. There existed written votes in the
early times of New England, and people were fined for not sending them.
It was not necessary to carry them personally to the poll. These written
votes prevailed in the middle ages. For this and other subjects con-
nected with elections, see the paper on elections in the appendix.
2 Coxe's Memoirs of the Bourbons in Spain.
AND SELF-GOVERNMENT. 269
vote turned out to be in favor of the proposed measure. The
ayes and noes have unfortunately sometimes a similar effect
with us. Still, this peculiar voting may operate upon the
timid as often beneficially as otherwise ; at any rate, the
Americans believe that it is proper thus to oblige members to
make their vote known to their constituents.
We never give the executive the right of dissolving the
legislature, nor to prorogue it.
We have never closed the list of the states composing the
Union, in which we differ from most other confederacies, an-
cient or modern ; we admit freely to our citizenship those who
are foreigners by birth, and we do not believe in inalienable
allegiance. 1
We allow, as it has been seen, no attainder of blood.
We allow no ex post facto laws.
1 The character of the English, and of our allegiance, is treated at
length in the Political Ethics. I there took the ground that even Eng-
lish allegiance is a national one, whatever the language of the law books
may be to the contrary. The following may serve as a farther proof
that English allegiance, after all, 's dissoluble. It appears from the
New England charter, granted by James I., that he claimed, or had the
right " to put a person out of his allegiance and protection." Page 16,
Compact, with the Charter and Laws of the Colony of New Plymouth,
etc. ; Boston, 1836.
Had we any nobility, or had we closed our confederacy, we must have
been exposed to the troubles to which the ancient republics were ex-
posed, and which form a leading feature through the whole history of
Rome. We acquired Louisiana, and, with her French population she is
fairly assimilated with our great polity. She would have been a danger-
ous cancer had we treated her as Rome treated her acquisitions, and a war
of the Socii, as the Romans had it, must ultimatelyliave broken out. In
this then we differ in a marked way from the English. When Scotland
was united to England, by establishing one legislature for both, and when
a similar process took place with reference to Ireland, a perfect assimi-
lation was not the consequence as had been the case with Wales. The
non-assimilation is still more marked in the case of the colonies. Eng-
lish readers may possibly believe that a foreign author passes his proper
boundary if he ventures to discuss a subject of the highest statesman-
ship peculiarly domestic in its character, but " the by-stander often sees
the faults of the men in the rinjr." How could we write on foreign his-
270 ON CIVIL LIBERTY
American liberty contains, as one of its characteristic ele-
ments, the enacted or written constitution. This feature dis-
tinguishes it especially from the English polity with its accu-
mulative constitution.
"VVe do not allow, therefore, our legislatures to he politically
"omnipotent," as, theoretically at least, the British parliament
is. 1 This characteristic, again, naturally led to the right and
duty of our supreme courts in the states, and of the supreme
court of the United States, to decide whether a law passed, hy
tory, were we not allowed to judge of foreign subjects ? Nor is this
subject wholly foreign to an American, because he naturally knows
more of Canada than most English do, and he knows his own colo-
nial history. Thus justified, and making full allowance for the diffi-
culties that may exist, we cannot help feeling surprised that England,
in many other respects the only power that has shown true liberality
toward colonies so different from Spain ! and with our war of inde-
pendence before her eyes, should not think of tying the distant empires
she creates in all the portions of the globe, by a representation in her
parliament, making it, so far as the colonies are concerned, the imperial
congress. Though each distinct colony with a colonial self-government
should have but two or three representatives in the commons, represent-
ing the colony as such, it seems that the effect upon the consistency of
the whole gigantic empire would be distinct, and that such a measure is
the only one that would promise continued cohesiveness.
1 For the English reader I would add that the following works ought
to be studied, or consulted on this subject : The Constitution of the
United States, and the constitutions of the different states, which are
published from time to time, collected in one volume ; the Debates on
the Federal Constitution ; The Federalist, by Hamilton, Madison, and
Jay ; the Writings of Chief Justice Marshall, Boston, 1839 ; the History
of the Constitution of the United States, by G. T. Curtis, a work of mark ;
Mr. Justice Story's Commentaries on the Constitution of the United
States ; Mr. Calhoun's and Mr. Webster's Works ; Mr. Rawle's work
on the Constitution, and Mr. Frederic Grimke's Considerations upon the
Nature and Tendency of Free Institutions, Cincinnati, 1848. To these
may be added the Course of Lectures on the Constitutional Jurispru-
dence of the United States, by W. A. Duer, Boston, 1856. An entire
literature of its own has accumulated, by this time, on the constitution,
jurisprudence and constitutional history of the United States. The chief
of the enumerated works will suffice to lead the student to the more
detailed works of this department.
AND SELF-GOVERNMENT. 271
the legislature or by congress, is in conformity with the superior
law the constitution, or not, in other words, on the constitu-
tionality of a law. It has been stated already that the courts
have no power to decide on the law in general ; but they decide,
incidentally, on the whole law, when a specific case of conflict be-
tween a certain law and the constitution is brought before them.
I may add as a feature of American liberty, that the Ame-
rican impeachment is, as I have stated before, a political, and
not a penal institution. It seems to me that I am borne out
in this view by the Federalist. 1
In conclusion, I would state as one of the characteristics of
American liberty, the freedom of our rivqrs. The unimpeded
navigation of rivers belongs to the right of free locomotion
and intercommunication, of which we have treated ; yet there
is no topic of greater interest to the historian, the economist,
and the statesman, than the navigation of rivers, because though
the rivers are nature's own highways, and ought to be as effi-
cient agents of civilization as the Road, or the Mail, their
agency has been thwarted by the oppressive force of man, in
almost all periods of our history. The Roman empire, doing
little indeed for commerce, by comprehensive statesmanships,
effected at least a general freedom of the rivers, within its
territory, as a natural consequence of its unity. The Danube
became free, from the interior of Germany to the Black Sea.
But the barbarous times which succeeded reduced, once more,
the rivers to the state of insecurity in which they had been
before the imperial arm had warded off intrusion and inter-
ruption. Free navigation had not even been re-established in
1 No. Ixv.
As to the parties in America, they may fairly be said to have little to
do with civil liberty, which will be readily seen by the so-called National
Platforms, resolved upon as the true indexes of the parties by the con-
ventions held preparatory to the presidential elections. Nor do the
names of the parties indicate anything with reference to Liberty. The
term Democratic has wholly lost its original meaning, as used to desig-
nate the party which has taken it. Among others, the Resolutions
published by the different conventions in the year 1853, previous to Mr.
Tierce's election, and which were drawn up with great care, fully prove
this.
272 ON CIVIL LIBERTY
all the larger empires of the European continent, when the first
French revolution broke out. It was one of the most important
provisions of the act of confederation, agreed upon at Vienna,
in 1815, between the Germanic states, that immediate steps
should be taken, to make the river navigation in Germany free,
but the desired object had not been obtained as late as in 1848. T
The long dispute about the navigation of the river Scheldt has
become famous in the history of law and of human progress. In
this case, however, a foreign power, the Netherlands, denied
free navigation to those in whose country the river rises and be-
comes navigable. 2 Magna Charta declares, indeed, what has
been called " the freedom of the rivers," but, on the one hand,
English rivers are, comparatively speaking, of little importance
to navigation, and, on the other hand, England had not to over-
come the difficulty which arises out of the same river passing
through different states. It was therefore a signal step in the
progress of our species, when the wise framers of our constitution
enacted, that vessels bound to, or from one state, shall not be
obliged to enter, clear or pay duties in another, 3 and every one
who cherishes his country and the essential interests of our
species must be grateful that subsequent legislation, and deci-
sions by courts have firmly established 4 the inestimable right of
free navigation in a country, endowed with a system of rivers
more magnificent and more benign, if left free and open, than
1 I owe to the friendship of Mr. Kapp, (author of the Life of Baron
Steuben,) a book of remarkable interest, in many respects : Gottlieb Mit-
telberger's Journey to Pennsylvania in the year 1750 and Return to
Germany in 1754; Frankfurt, 1756. Mittelberger was organist and
schoolmaster. He was seven weeks on his way from Wurtemberg to
Rotterdam, chiefly on the Rhine. The Journal of Albert Durer, the
great painter, gives the same lamentable account of his journey on the
Main and Rhine.
1 A time may come I believe it will when the international law of
our family of nations, will acknowledge that those who border on a
navigable river, have a right, by nature, to sail down that river to the
sea without hindrance, toll or inconvenience.
s Constitution of the United States, section 9.
4 See, among others, Duer's Lectures on the Constitutional Jurispru-
dence of the United States, 2d edition, page 258 and sequ.
AND SELF-GOVERNMENT. 273
that of any other country. An able writer and comprehen-
sive statesman says :
"It was under the salutary instruction thus afforded by
the Scheldt, and just before the French revolution broke its
shackles, that our thirteen confederated states acquired the
Mississippi.
"In March, 1785, Rufus King, then a delegate from Massa-
chusetts in the congress of the confederation, received from
Timothy Pickering a letter containing these emphatic and
memorable words :
" ' The water communications in that country will always be
in the highest degree interesting to the inhabitants. It seems
very necessary to secure the freedom of navigating these to all
the inhabitants of all the states. I hope we shall have no
Scheldts in that country.' 1
" The high duty of carrying into effect that great suggestion,
immediately occupied the attention of Mr. King and his asso-
ciates. The honor of framing the clause which secures, 'not
for a day, but for all time,' freedom of commerce over an un-
broken net-work of navigable water spread out for more than
sixteen thousand miles was shared between Massachusetts
and Virginia, then standing shoulder to shoulder, where they
had stood throughout the Revolution.
" The clause was formally introduced into the Congress by
Mr. Grayson, of Virginia, and seconded by Mr. King, of
Massachusetts. Listen to its words, so broadly national, so
purely American :
" ' The navigable waters leading into the Mississippi and St.
Lawrence, and the carrying places between the same, shall be
common property, and FOREVER FREE, as well to the inhabit-
ants of the said country, as to the citizens of the United
States, and those of any other states that may be admitted
into the confederacy WITHOUT ANY TAX, DUTY, OR IMPOST
THEREFOR.' "
1 The original is in the possession of Dr. Charles King, president of
Columbia College, New York.
18
274 ON CIVIL LIBERTY.
" The clause was immediately incorporated into the ordinance,
and passed by the congress on the 13th day of July, 1787.
" Here, then, we behold the Magna Charta of the internal
navigation of America," 1 which we enjoy, and have first en-
joyed, of all confederacies, ancient or modern. It gives the
absolutely free use of the noblest river system extending over
a continent.
1 This passage is copied from a Defence of the Right and the Duty of
the American Union to improve the Navigable Waters, by Samuel B.
Ruggles, a speech delivered iu October, 1852. The speaker has given
his views on this and kindred topics, more extensively in a state paper
of rare excellence, whether the contents, the historical survey and sta-
tistic knowledge, or the transparency of the style and language be
considered. The paper bears the title, Memorial of the Canal Board
and Canal Commissioners of the State of New York, asking for the
Improvement of the Lake Harbors by the General Government, Al-
bany, N. Y., 1858, and was, as such, adopted by the legislature of New
York and presented to congress.
CHAPTER XXIII.
IN WHAT CIVIL LIBERTY CONSISTS, PROVED BY CONTRARIES.
I HAVE endeavored to give a sketch of Anglican liberty. It
is the liberty we prize and love for a hundred reasons, and
which we would love if there were no other reason than that
it is liberty. We know that it is- the political state most
befitting to conscious man. History as well as our own preg-
nant times prove to us the value of those guarantees ; their
necessity, if we wish to see our political dignity secure, and
their effect upon the stability of government, as well as on the
energies of the people. We are proud of our self-government
and our love of the law as our master, and we cling the faster
to all these ancient and modern guarantees, the more we
observe that, wherever the task which men have proposed to
themselves is the suppression of liberty, these guarantees are
sure to be the first objects of determined and persevering
attack. It is instructive for the friend of freedom to observe
how uniformly and instinctively the despots of all ages and
countries have assailed the different guarantees enumerated
in the preceding pages. We can learn much in all practi-
cal matters by the rule of contraries. As the arithmetician
proves his multiplication by division, and his subtraction
by addition, so may we learn what those who love liberty
ought to prize, by observing what those who hate freedom
suppress or war against. This process is made peculiarly
easy as Avell as interesting at this very period, when the
government of a large nation is avowedly engaged in sup-
pressing all liberty and in establishing the most uncompro-
mising monarchical absolutism.
I do not know a single guarantee contained in the foregoing
pages, which might not be accompanied by a long historical
(275)
276 ON CIVIL LIBERTY
commentary showing how necessary it is, from the fact that it
has been attacked by those who are plainly and universally
acknowledged as having oppressed liberty or as having been,
at least, guilty of the inchoate crime. It is a useful way to
turn the study of history to account, especially for the youth
of free nations. It turns their general ardor to distinct reali-
ties, and furnishes the student with confirmations by facts.
We ought always to remember that one of the most efficient
modes of learning the healthful state of our body and the
normal operation of its various organs, consists in the study of
their diseased states and abnormal conditions. The pathologic
method is an indispensable one in all philosophy and in poli-
tics. The imperial time of Rome is as replete with pathetic
lessons for the statesman as the republican epoch.
It would lead me far beyond the proper limits of this work,
were I to select all the most noted periods of usurpation, or
those times in which absolutism, whether monarchical or demo-
cratic, has assumed the sway over liberty, and thus to try the
gage of our guarantees. It may be well, however, to select a
few instances.
In doing so I shall restrict myself to instances taken from
the transactions of modern nations of our own race ; but the
student will do well to compare the bulk of our liberty with
the characteristics of ancient and modern despotism in Asia,
and see how the absence of our safeguards has there always
prevented the development of humanity which we prize so
highly. He ought then to compare this our own modern
liberty with what is more particularly called antiquity, and see
in what we excel the ancients or fall behind them, and in what
that which they revered as liberty differed from ours. He
ought to keep in mind our guarantees in reading the history of
former free states, and of the processes by which they lost their
liberty, or of the means to which the enemies of liberty have re-
sorted, from those so masterly delineated by Aristotle, down to
Dr. Francia and those of the present time, and he ought again
to compare our broadcast national liberty with the liberties of
the feudal age. He ought lastly to present clearly to his mind
AND SELF-GOVERNMENT. 277
the psychologic processes by which liberty has been lost by
gratitude, hero-worship, impatience, indolence, permitting great
personal popularity to overshadow institutions and laws, hatred
against opposite parties or classes, denial of proper power to
government, the arrogation of more and more power, and the
gradual transition into absolutism ; by local jealousies, by love
of glory and conquest, by passing unwise laws against a mag-
nified and irritating evil laws which afterwards serve to op-
press all, by recoiling oppression of a part, by poverty and by
worthless use of wealth, by sensuality and that indifference
which always follows in its train.
Liberty of communion is one of the first requisites of free-
dom. Wherever, therefore, a government struggles against
liberty, this communion forms a subject of peculiar attention.
Not only is liberty of the press abolished, but all communion
is watched over by the power-holder, or suppressed as far as
possible. The spy, the mouchard, the dilator, the informer,
the sycophant, are sure accompaniments of absolutism. 1 The
British administration under Charles II. and James II. looked
with a jealous eye on the "coffee-houses," and occasionally
suppressed them. One of the first things done by the French
minister of police, after the second of December, was to close
a number of "cabarets" at Paris, and to put all France
under surveillance. This may become necessary for a time
under pressing circumstances, which may place a government
in the position of a general in a beleaguered city, but it is
not liberty ; it is the contrary, and if the measure is adopted
as a permanent one, it becomes sheer despotism. So soon as
Louis Napoleon had placed himself at the head of an abso-
lute government, he not only abolished the liberty of the
press, but he went much farther, as we have seen ; he placed
the printing-presses themselves and the sale of type under
the police, and ordered that no press with the necessary
1 Much that relates to the history of the spy and informer, in ancient
and modern times, may be found in the second volume of Political Ethics,
where the citizen's duty of informing is discussed.
278 ON CIVIL LIBERTY
printing materials should be sold or change hands without
previous information being given to the police.
While it is a characteristic of our liberty that the public
funds are under the peculiar guardianship of the popular house
of the legislature, and that short appropriations are made for
distinct purposes, especially for the army and navy, all govern-
ments hostile to liberty endeavor to rule without appropria-
tions, or, if this is not feasible, by having the appropriations
made for a long term, and not for detailed purposes. The last
decree of Napoleon III., relating to this subject, is that the
legislative corps must vote the budget of each department en
bloc, that is, in a lump, and either wholly reject or adopt it,
without amendment. English history furnishes a long com-
mentary on this point of appropriations. Charles I. lost his
head in his struggle for a government without parliament,
which then meant, in a great measure, without regular appro-
priations, or the assumption of ruling by taxation on royal
authority. Wherever on the European continent it has been
the endeavor to establish a constitutional government, the
absolutists have complained of the "indecency" of making
governments annually "beg" for supplies.
Liberty requires the supremacy of the law ; the supremacy
of the law requires the subordination of the army to the legis-
lature and the whole civil government. The Declaration of
Rights enumerates the raising and keeping a standing army
without consent of parliament, as one of the proofs that James
II. had endeavored " to subvert and extirpate the laws and
liberties" of England; while all governments reluctantly yield-
ing to the demands of liberty have struggled to prevent at
least the obligation of the army to take the oath of fidelity to
the constitution. The army is studiously separated from the
people, and courted as peculiarly allied to the prince. Napo-
leon I. treated the army as the church was often treated in the
middle ages the main body in the state ; and Napoleon III.
lately said in a solemn speech that he desired to present the
new empress to the people and the army, as if it formed at
least one-half of the state and were a body, separate from the
AND SELF-GOVERNMENT. 279
people. When he gave eagles to the whole army at what is
called the fete of the eagles, in 1852, he said: "The history
of nations is in a great measure the history of armies," and
continued in a strain sounding as if it belonged to the times
of the migration of nations. 1
But English and American freemen will never forget that
the highest glory of a great people, and that by which it most
signally performs the task assigned to it in the furtherance
of our race, are its literature and its law, if this consists in a
wise system founded on justice, humanity and freedom.
The supremacy of the law is an elementary requisite of
liberty. All absolutism spurns, and has a peculiar dislike of,
the idea of fundamental laws. Aristotle enumerates as the
fourth species of government that in which the multitude and
not the law is the supreme master; James II. claimed the dis-
pensing power, and Louis Napoleon affirmed, when yet presi-
dent under the republican constitution, which prohibited his
re-election, that if the people wanted him to continue in office,
he should do it nevertheless, and all his adherents declared
that the people being the masters could do as they liked,
1 I quote the whole passage of this stupendous allocution, which no
historian or political philosopher, had he discovered it, as Cuvier found
and construed remains of animals, would have assigned to the middle of
the nineteenth century. What becomes of England and the United
States if the essence of history does not lie in the development of the
nation and especially of its institutions ? The following are the exact
words :
" Soldiers, the history of nations is in great part the history of armies.
On their success, or on their reverses, depends the fate of civilization
and of the country. When they are vanquished, there is either invasion
or anarchy ; when victorious, glory or order.
" In consequence, nations, like armies, pay a religious veneration to
the emblems of military honor, which sum up in themselves a whole past
existence of struggles and of triumphs.
" The Eoman eagle, adopted by the Emperor Napoleon at the com-
mencement of the present century, was the most striking signification of
the regeneration and grandeur of France ;" and so on.
When the democratic Caesar reviewed the guards, before they started for
the Crimea, in 1855, he called the army the nobility of the French nation.
280 ON CIVIL LIBERTY
which reminds us of the Athenians who impatiently exclaimed:
" Can we not do what we list?" when told that there was a
law forbidding what they intended to do.
The division of power, which was already observed as an
important point in government by "the master of all that
know," is invariably broken down as far as possible by the
absolutists. The judiciary is interfered with whenever its slow
procedure or its probable results irritate the power-holder.
The history of all nations from the earliest times to Napoleon
III.'s taking the trial on the legality of the Orleans spoliation
out of the hands of the judiciary, proves it on every page.
Self-government, general as well as local, is indispensable
to our liberty, but interference and dictation are the essence
of absolutism. Monarchical absolutisms presume to do every-
thing and to provide for everything, and Robespierre, in his
" great speech " for the restoration of the Supreme Being,
said : The function of government is to direct the moral and
physical forces of the nation. For this purpose the aim of a
constitutional government is the republic. 1
Liberty requires that every one should be judged by his
common court. All despots insist on extraordinary courts,
courts of commission, and an easy application of martial law.
Forcible expatriation or deportation " beyond the seas" by
the executive is looked upon with peculiar horror by all free-
men. The English were roused by it to resistance; Napo-
leon III. began his absolute reign with exile and deportation.
So did the Greek factions banish their opponents when they
had the power of doing so, because no "opposition" in the
modern sense was known to them. With them it was the
blundering business of factions ; moderns know better, and if
they return to it, it is because despotism is a thing full of fear
and love of show.
How great an ofience it is to deprive a man of his lawful
1 The words of Kobespierre are sufficiently clear, if taken as an illus-
tration of what has been stated in the text ; otherwise, I own, the sense
is not perfectly apparent.
AND SELF-GOVERNMENT. 281
court and to judge him by aught else than by the laws of the
land, now in the middle of the nineteenth century, will appear
the more forcibly, if the reader will bring to his mind that
passage of Magna Charta which appeared to Chatham worth
all the classics, and if he will remember the year when the
Great Charter was carried. The passage, so pregnant to the
mind of Chatham, is this :
" No freeman shall be taken, or imprisoned, or be disseised
of his freehold or liberties, or free customs, or be outlawed or
exiled, or any otherwise destroyed; nor will we (the king)
pass upon him, nor condemn him, but by lawful judgment of
his peers, or by the law of the land. We will sell to no man,
we will not deny or defer to any man, justice or right."
Publicity is a condition without which liberty cannot live.
The moment it had been concluded by the present government
of France to root out civil freedom, it was ordained that neither
the remarks of the members of the legislative corps, nor the
pleadings in the courts of justice, should be reported in the
papers. Modern political publicity, however, consists chiefly
in publication through the journals. We acknowledge this prac-
tically by the fact that, although our courts are never closed, 1
yet, for particular reasons arising out of the case under con-
sideration, the publication of the proceedings is sometimes
prohibited by the judge until the close of the trial, but never
beyond it.
Liberty stands in need of the legal precedent, and Charles I.
pursued Cotton because he furnished Pym and other patriots
with precedents, while the present French government has
excluded instruction in history from the plan of general edu-
cation. History, in a certain point of view, may be called the
great precedent. History is of all branches the most nourish-
ing for public life and liberty. It furnishes a strong pabulum
and incites by great examples removed beyond all party or
selfish views. The favorite book of Chatham was Plutarch,
and his son educated himself upon Thucydides. 2 The best
1 Very scandalous judicial cases, offensive to public morals, are, in
France, conducted with closed doors.
2 So Bishop Tomlinson tells us in the Life of his pupil.
282 ON CIVIL LIBERTY.
historians have been produced by liberty, and the despot is
consistent when he wishes to shackle the noble muse.
Sincere civil liberty requires that the legislature should have
the initiative. All governments reluctant to grant full liberty
have withheld it, and one of the first things decreed by Louis
Napoleon after the second of December was that the "legis-
lative corps" should discuss such propositions of laws only as
the council of state should send to it. The council of state,
however, is a mere body of officers appointed and discharged
at the will of the ruler.
Liberty requires that government do not form a body perma-
nently and essentially separated from the people ; all modern
absolute rulers have resorted to a number of distinctions
titles, ribbons, orders, peacock feathers and buttons, uniforms,
or whatever other means of separating individuals from the
people at large may seem expedient.
Liberty requires the trial by jury. Consequently one of the
first attacks which arbitrary power makes upon freedom is
regularly directed against that trial. There is now a law in
preparation in France, of which the outlines have been pub-
lished, and which will place the jurors under the almost ex-
clusive influence of the government.
Liberty requires, as we have seen, a candid and well-
guaranteed trial for treason ; all despotic governments, on the
contrary, endeavor to break down these guarantees in par-
ticular. They arrogate the power of condemning political
offenders without trial, or strip the trial for treason of its best
guarantees.
But we might go through the whole list of safeguards and
principles of liberty, and find that in each case absolutism does
the opposite.
If the American peruses the Declaration of Independence,
he will find there, in the complaints of our forefathers, almost
a complete list of those rights, privileges, and guarantees
which they held dearest and most essential to liberty ; for
they believed that nearly every guarantee had been assailed.
CHAPTER XXIV.
GALLICAN LIBERTY. SPREADING OF LIBERTY.
HAVING considered Anglican liberty, it will be proper for
us to examine the French type of civil freedom, or Gallican
liberty.
In speaking here of Gallican liberty, we mean, of course,
that liberty which is characteristically French, either in re-
ality, if we shall find that at any period it has taken actual
root, or in theory, if it have remained such, and never prac-
tically developed itself. Liberty has sprouted in France as
in other countries. People have felt there, as all over
Europe, that the administration of justice ought to be inde-
pendent of the other branches of government. The separa-
tion of the three great functions of government was proclaimed
by the first constituent assembly. But the question here is,
whether any of these or other endeavors to establish liberty
have been consolidated into permanent institutions, whether
they have been allowed to develop themselves, and whether
they were or are peculiar to the French, or were adopted
from another system of developed civil liberty, as we adopt
the whole or parts of an order of architecture or a philo-
sophical system ; and, if we find no such institutions or guaran-
tees peculiar to the French, whether there be a general idea
and conception of liberty which pervades all France and is
peculiar to that country.
In viewing the French institutions, which have been in-
tended for the protection of individual rights or the preserva-
tion of liberty, I can discover none which has had a permanent
existence, except the court of cassation or quashing. It is the
highest court of France, possessing the power of annulling or
(283)
284 ON CIVIL LIBERTY
breaking 1 the judgments of all other courts of justice, whether
in civil or criminal matters, on account of faults and flaws in
the judicial forms and procedure, or of misapplications of the
existing law. It has no power to examine the verdict. It
resembles, therefore, the court of Westminster, in England,
when the assembled judges hear questions of law, or our su-
preme court of the United States on similar occasions, and the
supreme courts or courts of appeal or error in the different
states. The court of cassation must necessarily sometimes
judge of certain procedures of the government against indi-
viduals, and declare whether individual rights, publicly gua-
ranteed, have been invaded. Thus it showed its power to
some extent when Paris was declared in a state of siege, and
the whole city was under martial law. But the high attribute
of pronouncing upon the constitutionality of the laws them-
selves, which we cherish in our supreme courts, does not
belong to it, nor can its power be vigorously and broadly
exercised in a conflict with the supreme power, since this
power bears down everything in a country so vast and yet
so centralized as France, and in which the principle of de-
velopment, independent of the executive or central power, is
not acknowledged in the different institutions. The court of
cassation has at the same time a supervisory authority over
the judges of other courts, and can send them before the
keeper of the seals (the minister of justice) to give an account
of their conduct. It is likewise an object of the court of
cassation to keep the application of the law uniform in the
different portions of the country. This is a necessary effect
of its power to quash judgments.
The institution of the justice of the peace ought to be
mentioned here, although it can only be considered as indi-
rectly connected with liberty. The French justice of the
peace differs from the English officer of the same name in this,
that his function is exclusively of a conciliatory character.
Courts of conciliation have existed in many countries, and
Casser is the French for breaking ; hence the name of the court.
AND SELF-GOVERNMENT. 285
long before the present justices of the peace were established
in France by the first constituent assembly; but as we see
them now there, they must be called a French institution. It
has proved itself in France, as well as in other countries, of
the highest value in preventing litigation, with all the evils
which necessarily attach themselves to it. x
No one, I suppose, would expect the senate, first established
by Napoleon I. and then called conservative senate, that is, the
senate whose nominal duty it was to conserve the constitution,
and now re-established by Napoleon III., to be enumerated as
an institution for the support of liberty. It has no more
connection with liberty than the Roman senate had under
the emperors. Its very origin would lead no one to expect
in it a guarantee of liberty. On the contrary, the French
senate has been a great aid to imperial absolutism, by giving
to comprehensive measures of monarchical despotism the
semblance of not having originated with the absolute monarch
or of having received the countenance of a high and numerous
political body. In this respect the French senate seems to me
worse than that of Russia. The Russian senate is nothing
but a council, leaving all power and responsibility with the
czar, in appearance as well as in reality.
That which after careful examination must be pronounced
to be Gallican liberty, is, I take it, the idea of equality
founded upon or acting through universal suffrage, or, as it is
frequently called by the French, " the undivided sovereignty
of the people" with an uncompromising centralism. As it is
necessarily felt by many, that the rule of universal suffrage
can, practically, mean only the rule of the majority, liberty
1 We have seen that courts of conciliation have attracted renewed
attention in England since Lord Brougham's proposition of an act for
the Farther Cheapening of Justice, in May, 1851. An instructive article
on this important subject, and the excellent effects those courts have
produced in many countries, shown by official statistics, can be found
in the German Staats-Lexicon, ad verbnm Friedensgericht.
286 ON CIVIL LIBERTY
is believed in France, as has been said, to consist in the abso-
lute rule of the majority. 1
Every one who has steadily followed the discussions of the
late constituent and national assemblies, who has resolutely
gone through the debates of the first constituents, and studied
the history of the revolution, and who is fairly acquainted with
French literature, will agree, I trust, that the idea of Gallican
liberty has been correctly stated. There are many French-
men, indeed, who know that this is not liberty, that at most
it can only be a means to obtain it, but we now speak of the
conception of liberty peculiar to the French school.
Institutions, such as we conceive their necessary character
to be, that is, establishments with the important element of
self-government, and of a system of guarantees beyond the
reach of daily change, do not enter as necessary elements into
the idea of Gallican liberty. Self-government is sought for in
the least impeded rule of the majority. It has been seen,
however, that, according to the Anglican view, the question
who shall rule is an important question of liberty indeed, but
only one about the means ; for if the ruler, whoever he be,
deprives the ruled of liberty, there is of course no liberty. A
suicide does not the less cease to live because he kills himself;
and two game fowls nearly matched, as the parties in a nation
may be, do not symbolize liberty, because at one time the one
may be uppermost, and at another time the other.
There seems to be in France a constant confusion of equality
and democracy on the one hand, and of democracy and liberty
on the other ; now, although equality largely enters as an
element in all liberty, and no liberty can be imagined without
a democratic element, equality and democracy of themselves
are far from constituting liberty. They may be the worst of
despotisms : the one by annihilating individuality, as the com-
1 I have given my views on the subject of the nature of sovereignty
and the way it acts, at length in the first volume of the Political Ethics.
If I have not succeeded there in mastering the subject, I should not be
able to do it here ; if I have succeeded, I cannot in fairness repeat a'long
discussion.
AND SELF-GOVERNMENT. 287
munist strives to do ; the other if it means democratic ab-
solutism by being real sweeping power itself not power lent
as that of the monarch always must be power without
personal responsibility. It acts ; but where is the actor, who
is responsible, who can be made responsible, who will judge ?
It is with reference to this rule, and this mistaken view of
liberty, that one of their wisest, best, and most liberty loving
men, Mr. Royer Collard, has said : l " It is nothing but a
sovereignty of brute force, and a most absolute form of abso-
lute power. Before this sovereignty, without rule, without
limit, without duty, and without conscience, there is neither
constitution nor law, neither good nor evil, nor past nor future.
The will of to-day annuls that of yesterday, without engaging
that of to-morrow. The pretensions of the most capricious
and most extravagant tyranny do not go so far, because they
are not in the same degree disengaged from all responsibility."
Where any one, or any two, or any three, or any thousand,
or any million can do what they have the mere power to do,
there is no liberty. Arbitrary power does not become less
arbitrary because it is the united power of many.
Napoleon said : " The French love equality ; they care
little for liberty." 2 Napoleon certainly mistook the French,
and mankind in general, very seriously in some points, as all
men of his stamp are liable to do ; there are some entire in-
stincts wanting in them ; but Ave fear that he was right in this
saying with reference to a large part of the French people.
Present events seem to prove it. 3
1 Royer Collard's Opinion, of October 4, 1831.
2 Words spoken to Lord Ebrington, in his exile on the island of Elba.
3 Rousseau expressed the political idea of equality, the aversion to re-
presentative governments and institutional polities, and the disapproval
of private property, boldly and clearly in his Social Contract, a masterly
written work, which has exercised an incalculable effect on French affairs.
Tt was the favorite book of the leading men of the first revolution, and
continues largely to influence the French. "Yet Rousseau only pro-
nounced more clearly, and boldly carried farther, the ideas of unity, con-
centration and equality, that had been gradually growing stronger in the
French mind long before him. They can be traced, not only in politics
but in all spheres.
288 ON CIVIL LIBERTY
This equality is again very generally mistaken for unifor-
mity, so that it would naturally lead of itself to centralization,
even if the French had not contracted a real passion for cen-
tralization ever since the reigns of Richelieu and Louis XIV.
It has increased with almost every change of government. It
is the love of power carried into every detail, and therefore the
opposite of what we call self-government ; J it is the exceeding
partiality of the French for logical neatness and consistency
1 I have given some remarkable instances of interference on the part
of modern absolute governments, in the Political Ethics. I shall add the
following recent instance : I am sure that no one accustomed to Angli-
can self-government considers such details trivial, however well he
may be acquainted with the fact in general, that government in those
countries tries to guide, direct, manage, initiate, and complete everything
that seems of any importance. Some years ago a German king ironi-
cally called, in a throne speech, constitutions Paper Providences. The
expression was every way most unfortunate. It seems to me that it is
these very governments of centralized mandarinism that play at provi-
dence, in which they closely resemble the communists, as indeed all
absolutism contains a strong element of communism.
The following is taken from the Paris Moniteur, the French official
paper, or organ of government, in October, 1852. I do not give the
entire decree, but the principal articles :
There will be published, under the care of the minister of public in-
struction, a general collection of the popular poetry of France, either to
be found in manuscript in the libraries, or transmitted by the successive
memories of generations.
The collection of the popular poetry of France will consist of
Religious and warlike songs ;
Festive songs and ballads ;
Historical recitals, legends, tales, satirical songs.
The committee of language, history, and the arts of France, connected
with the ministry of public instruction, is charged with the selection of
all pieces sent for inspection, and to determine which are to be received,
to regulate them, and give the necessary commentaries.
A medal is to be given to those persons who, by their discoveries and
researches, particularly contribute to enrich the collection, which will
be called Recueil des Podsies Populaires.
It is unnecessary to remind the reader that if this undertaking has
been dictated by any desire of promoting literature, a political motive
has been at least equally strong, according to the old saying : Give me
the ballad making, and I will rule the people.
AND SELF-GOVERNMENT. 289
of form, strikingly manifested in the fact that the word logical
is now universally used in French for consistency of action or
natural sequence of changes it is this mathematical enthu-
siasm, if the expression be permitted, applied to the vast field
of political practice.
It seems that we can explain the cry of Re*publique demo-
cratique et sociale, so often repeated by the most advanced of
the democrats during the late government without a king, only
on the ground of equality being considered the foundation of
all liberty. Indeed it is considered by many a requisite which
lies beyond liberty, and the banners of socialists bore the
motto Equality and Fraternity, or Equality, Fraternity, 'In-
dustry, the word Liberty having been altogether dropped from
that once worshipped legend : Liberty, Fraternity, Equality.
I have never been able to find an explanation of the watch-
word, Democratic and Social Republic, given by those who
use it, but it seems to bear no other interpretation than this:
Democratic republic signifies that republic which is founded
upon the total political equality of its members, carried to its
last degree, and social republic must mean a republic based on
equality of social condition. Whether this be possible, or de-
sirable if it were possible, cannot occupy us at present. The
frequent use of this term by a very large part of the French
nation has been mentioned here as one of the evidences show-
ing the prevailing love of mere equality among the French.
Still, it is not easy to say what the French exactly mean by
equality, or what Napoleon meant by it, when, at St. Helena,
he said that he had given equality to the French, and that this
was all he could give them, but that his son would have given
them liberty. How he knew that his son would have done it,
we certainly do not know ; but how did he give them equality,
when it was he who re-established the ancient orders of nobil-
ity ? So there are, in spite of all the love of equality, no
people who more universally love uniforms and an order with
a ribbon, than the French. This inconsistency is a political
misfortune. In theory, equality and democracy, carried to
19
290 ON CIVIL LIBERTY
the utmost, are demanded, while the habits, tendencies, and
desires of the people have a different bent. There is in this
respect, it seems, an intellectual and psychical dualism with
antagonistic elements in France, similar to that which we fre-
quently observe in individuals in regard to liberty and des-
potism. 1
It is evident how nearly allied this desired equality and
uniformity, together with universal but uninstitutional suf-
frage, and that kind of sovereignty which is in addition con-
founded with absolute power, are to those political extrava-
gances which strike our eyes in present France.
They are the natural effects of the one or the other, strictly
carried out, however inconsistent they may appear with one
another. Equality absolutely carried out leads to communism ;
the idea of undivided sovereignty leads to Mr. Girardin's con-
ception of having no legislature, no division of power nothing
but a succession of popular sultans; the idea of seeking all
liberty in universal suffrage alone leads with the greatest ease
to a Napoleon a transfer of everything to one man, and of
all future generations to his descendants, thus actually realiz-
ing the fearful theory of Hobbes ; arid the absence of a love
of institutions leads to a remarkable tendency to worship one
man, to centralization, or, in some cases, to the very opposite
a desire to abolish all government, and establish the "sove-
reignty of the individual." All extremes in politics meet.
There is no greater error than the idea of making the vote
1 Nothing is more common than men with a decided intellectual bent
towards freedom, and an equally decided psychical inclination towards
absolutism. Their intellect admires the grandeur of liberty, their reason
acknowledges the principles of justice ; then* desires are for free action,
and yet their souls resent every opposition. They appear, therefore,
often as hypocrites, without being such in reality. There is a dualism
within them whose two elements are at war, very similar to that which,
without hypocrisy, makes many persons sincerely preach peace and
charity abroad, but act at home as domestic tyrants.
History is full of such characters, and we have had an exhibition of it
in one of our presidents. Happily our institutional system did not allow
a very wide play of such a disposition.
AND SELF-GOVERNMENT. 291
or election the sole basis of liberty of believing that, with
the establishment of an extensive or universal suffrage, -we
found liberty, however true it is that liberty stands in need of
election. Absolutism may rest on this as on any other basis.
The deys of Algiers were elective, but once elected they were
unbounded masters, in the oriental sense of the term. The
generals of nearly all, I believe of all, the monastic orders
are elective, but, once elected, the vow of obedience of every
monk and the distinct renunciation of liberty, make the gene-
ral master. No order, no human association, has carried the
doctrine of absolute obedience to a more frightful extent than
the Jesuits, whose founder demands that the inferior shall be
in the hands of the superior ut baculum, like a mere staff, and
whose distinctly expressed principle it is, that every command
of the superior shall be like a commandment from on high,
even though sin be commanded. Yet the government of the
order is founded on election. Mr. Guizot, in speaking of the
monastic orders, 1 says : "As regards the political code of the
monasteries, the rule of St. Benedict offers a singular mixture
of despotism and liberty. Passive obedience is its fundamen-
tal principle ; at the same time the government is elective ;
the abbot is always chosen by the brothers. When oflce the
choice is made, they lose all liberty, they fall under the abso-
lute domination of their superior. Moreover, in imposing obe-
dience on the monks, the rule orders that the abbot consult
them. Chap. iii. expressly says, 'Whenever anything of im-
portance is to take place in the monastery, let the abbot con-
voke the whole congregation, and say what the question is ;
and after having heard the advice of the brothers, he shall
think of it apart, and shall do as appears to him most suita-
ble.' Thus, in this singular government, election, deliberation,
and absolute power, were coexistent."
The pope is an elective monarch over the States of the Church.
No one has ever maintained that on this account liberty has a
home in that country. Nor would the case be altered if the pope
were elected, not by the college of cardinals, but by a more nu-
1 History of Civilization, chapter xiv.
292 ON CIVIL LIBERTY
merous body of electors, or by all male adults, or even by the
whole population, male and female. The high priest or presi-
dent in the polity of that stupendous outrage called Mormon-
ism, is elective, and the Mormons themselves call their govern-
ment a theo-democracy ; l yet a greater absolutism has never
existed, indeed, we may fairly say, none equal to it. It unites
democracy and communism, which is absolutism, with continu-
ous and permanent revelations of the deity, not only on dog-
matic points, but on every measure of weight. It is a jus
divinum such as the ancients did not even dream of when they
derived their kings from the loins of the gods, and it is a com-
munism such as Mohammed never dared to embody in his
politico-religious system.
The unicameral system must be mentioned here as a fea-
ture of Gallican liberty, because it is held by all those
persons who seem to be the most distinct enunciators of this
species of liberty, a necessary requisite if they allow the
principle of representation at all. They consider that the
bicameral system of representatives is aristocratic, or else, as
one of their writers expresses it, that two houses can never be
reconciled except by money or by blood. The partiality for
a legislature of one house is a necessary consequence of the
French idea of unity in the government or the unity of the
state, and actual abhorrence of confederacies.
The Anglican wants union in his general government ; the
1 Theo-democracy does not contain a contradiction, however novel,
and, at first sight, startling the term may appear to us. If democracy
necessarily expressed the idea of liberty, then, indeed, the name theo-
democracy would be senseless, -for all theocracy or sacerdotal rule is a
negation of civil b'berty. It immures in dogma.
In a similar manner, and with equal justice, the Rev. Mr. Payne says
of the Grebo tribe, at Cape Palmas, that their constitution is patriarchal,
with a purely democratic government. His account is contained in "The
Report of the Rev. R. R. Gurley, who was recently sent out by the go-
vernment to obtain information in respect to Liberia," published by the
senate of the United States, in 1850, thirty-first congress, first session,
executive document No. 75. The political philosopher can hardly read
a more interesting paper than this.
AND SELF-GOVERNMENT. 293
Gallican, unity. He wants his government to be a solid unit. 1
He wishes to deprive every institution, as much as possible, of
the principle of self-government and independence, and the
only question which remains is, who shall be the ruler and re-
ceive that power which government gives ? To this subject, as
to many others on which I have touched, we shall return when
I shall treat more fully of the institutional government and its
opposite.
It is not likely that people who speak with derision of par-
liamentary government, by which nothing is meant but a go-
vernment in which a deliberative and representative legislature
forms an integral part, and of parlementarism, as the new
phrase is, would treat the legislature as an institution with
self-government and a necessary degree of independence. Ac-
cording to their idea, the safeguards which we believe are found
in a mutually moderative contrivance ought to be done away
with. Speedy energy, absence of opposition and of results
1 The extent to which this idea is occasionally carried out is almost
inconceivable to us, accustomed as we are to so essentially different a
system and train of political thoughts. A few years ago the minister of
the interior had given some new directions regarding the quarantine
regulations. They were more in conformity with the opinions of scien-
tific men on the contagiousness of the plague. The people of Marseilles,
who still keep the terrible plague of the last century in vivid remembrance,
disapproved of these orders from the central government, and a meeting
of certain persons was called together. Whereupon most newspapers
took part with the government, and charged the citizens, with whom this
little germ of self-government had shown itself, with the hideous sin of
federalism, the crime for which many had lost their heads in the first
revolution. This was in the times of the so-called republic before the
second of December, and the few papers which took side with the citizens
were legitimist papers, thus furnishing, by the way, another instance of
the fact that all sorts of things are possible under peculiar circumstances.
It was the tories who resisted the septennial bill abolishing triennial par-
liaments ; it was the Jesuits who first enunciated the doctrine of the sove-
reignty of the people, in order to get a fulcrum against heretical mon-
archs; it was a Spanish Jesuit who defended regicide under Philip II.:
and here we have legitimists, working for a descendant of Louis XIV..
who took side for a principle of self-action against the central govern-
ment !
294 ON CIVIL LIBERTY
which are the products of mutual modification and mutual tole-
ration, unity of ideas, not consisting in collective effects but in
a merely logical carrying out of some abstract principle ; these
are the main objects, according to Gallican views. The United
States are far from being favorably looked upon by the French
people, and they are viewed with real ill-will by the Red Re-
publicans on account of our decentralization. Rosseau seems
to have harbored a positive ill-will toward the representative
system, and his followers have a still stronger antipathy
against federal governments, and self-government which may
be said, in one point of view, -to be a minute application of
the federative principle.
The Spaniards, the Portuguese, the Neapolitans have made
the trial of copying the French, but have succeeded with the
system of one house no better than the French themselves,
and have passed over to the bicameral legislature, or abolished
representation altogether.
There are governments in which the medieval principle of
estates still exists. But it may be fairly maintained that this
is a remnant of the middle ages, at variance with the changed
state of modern society. Nowhere do they present themselves
as a system of civil liberty it is rather a system (and rarely
even this) of privileges or liberties. In Sweden the estates
still exist, namely the clergy, nobility, citizens, and peasants,
and a high degree of liberty is enjoyed. But in examining
the constitution of Sweden we cannot fail to observe that
modern liberty is rather superinduced or engrafted on the sys-
tem of states, than evolved out of it. The constitution of
Norway, on the other hand, is clearly of the character of that
liberty which we have designated as Anglican.
Frenchmen would probably point out their national guards
as an element or guarantee of Gallican liberty. They were
established during the first revolution, and have always been
diminished in number and restricted in power, in those pe-
riods in which the government made war upon liberty. They
cannot, however, be considered a valid guarantee in so con-
centrated a government as the French, and in a country in
AND SELF-GOVERNMENT. 295
which the army is so gigantic. It was chiefly as a popular
force against the king, that the national guards appeared as
an important element of liberty in the first French revolution ;
but they cannot be called a real guarantee of civil liberty, es-
pecially when no institutional guarantees of self-government
exist.
It must have plainly appeared that liberty seems to me effi-
ciently secured only by the Anglican system. Other attempts
in modern times have been but very partially successful, and of
these there are only a few. The question arises at once, are those
persons in the main correct who roundly assert that no people
are fit for liberty except the Anglo-Saxons ? For thus they
call the English nation, and those who have descended from it.
Or is it correct to say that whoever wishes to enjoy liberty
must copy the main institutions of Anglican liberty ? On these
and some cognate subjects so many startling errors exist, that
the remarks on the different types of liberty may be appropri-
ately concluded by some observations on these misconceptions.
They have a practical bearing, and influence large masses.
It is doubtless true that the greatest amount of liberty is at
present enjoyed by the Anglican race, whose institutions and
guarantees seem to form the only extensive and consistent, as
well as practical system of civil liberty, the only one in which
liberty and law have become firmly interlocked, and by which
it has thus become possible to establish, as a practical reality,
what Tacitus held to be impossible the union of libertas
and iinperium. It is true also that the Anglican division has
had a greater influence than any other tribe on the whole white
race, and that other nations seem to have enjoyed liberty or
advanced on the path of freedom, in recent times, in the same
proportion only in which they have adopted the main principles
and chief institutions elaborated by this portion of our race;
and it is equally true that we enjoy so great an amount of free-
dom because we are accustomed to liberty and a government of
law, and because our race has perseveringly developed it for
centuries. But it must not be forgotten, on the one hand, that
other nations and races may possibly develop certain princi-
296 ON CIVIL LIBERTY
pies in a manner peculiar to their character and circumstances ;
and, on the other hand, that it is the rule of all spreading ad-
vancement of humanity that the full amount of what has been
gained by patience, blood, or fortunate combinations, is trans-
ferred to other regions and distant tribes.
The missionary from St. Paul, when he went to Rome, to
those who now embark for the Pacific does not demand the
neophyte to pass through the dispensations of the old testa-
ment, and all the experience of the early church, before he
begins to teach the dispensation of the new testament, and to
establish churches according to the government and the theo-
logy which exist at his home.
There are many persons who pretend to admire liberty, but
withhold it from the people on the plea that they are not pre-
pared for it. Unquestionably, all races are not prepared for
the same amount of liberty, and many are not yet fit for
any real liberty at all. But two things are certain, that all
nations, and especially those belonging to our own civilized
family, prove that they are prepared for the beginning of
liberty, by desiring it and insisting upon it, and that you can-
not otherwise prepare nations for enjoying liberty than by be-
ginning to establish it, as you best prepare nations for a high
Christianity by beginning to preach it.
There are persons even among ourselves who, observing how
many and spd failures have taken place with other nations,
bluntly assert that none but the Anglo-Saxons are fit for
liberty, and that it cannot be enjoyed by others. That some
nations are fitter for the elaboration or peaceful enjoyment of
liberty than others, according to their character, which makes
them perhaps less fit to excel in some other branches of civili-
zation, cannot be denied. So was the Greek more fit for the
fine arts than the Roman. That some tribes appear on the
stage of history, act their part, and vanish again without hav-
ing made any progress in civil liberty, or ever having become
conscious of it as an element of advancing civilization, is
equally true. But do we hold any nation, once fairly entered
upon the path of civilization, unfit for science or the arts, or
AND SELF-GOVERNMENT. 297
a stable government, or a literature, or for Christianity ? That
in which man rises highest, and manifests himself most intel-
lectually chri'stianity, is helieved to he meet for all, but
should liberty be restricted to a tribe or a single nation ? It
is not likely. I have admitted that some nations are fitter
for the one or the other. All will not equally cultivate all
branches ; each cannot originate every branch ; but all will
partake of every element of civilization ; and while it may be
proper for the historian to say such a nation has not been able
to act with originality in this or another branch, it is not be-
coming to the philosopher to say that such a portion of our
race will not be able to do so. When the Greek scholars were
driven from Constantinople, and carried the last embers of
Grecian civilization and intellectuality over the west; when
Providence made them the missionaries of a renewed civiliza-
tion, and the restoration of letters prepared the way for still
higher achievements, no one said that the English, or French,
or Germans were unfit to partake in the humanizing blessing,
although the Italian soil, still bearing the effects of former
culture, was the first to bring forth delectable fruit. When
Gothic architecture had been elaborated by some, it was not
believed that other nations could not raise cathedrals in the
same style, and enjoy it and develop it in their own way.
On the other hand, we meet with the very reverse. Angli-
can liberty is opposed on the ground that it is not indigenous,
and that it is both inexpedient and unworthy to adopt it.
Large numbers in France, both communists and imperialists,
treat "parliamentarism" in this manner; and the emperor
said, when he had assembled the senate and the legislative
corps, soon after the restoration of the empire, that France
for "the first time enjoyed the happiness of possessing in-
stitutions, exclusively French and original." 1 As to the
1 This idea has been, since, carried much farther. A large number of
persons, and it would seem, all imperialists, love to dwell upon the idea
that imperialism represents Latin civilization, opposite to Teutonic un-
wieldly, uncentralized, barbaric freedom. When thus Latinism is taken
as a distinctive mark, Roman imperialism is meant, not of course Repub-
298 ON CIVIL LIBERTY
originality, we would only observe that they are fac-similes
of what Napoleon I. had established, and that he copied
the senate, as he did the eagle, the title and idea of emperor,
the name of legion, of prefect, from Rome, unfortunately
at her worst period, for the Roman senate during the better
time was part of the proud Senatus Populusque Romanus ;
and the corps legislatif, if there be any element of a repre-
sentative legislature in it, is not of French origin ; if it be
a mute body, however, there is no originality in it either.
Even if it were as the emperor proclaimed it, there would be
nothing in it to be rejoiced at. The law of all spreading civi-
lization is emigration, transmission, and addition. Ought the
French to reject the Grecian orders of architecture because
they are not French, or ought our medical students not to go
to Paris because the French science of medicine is not ours ?
Has modern music been rejected by all the nations except the
Italians and the Germans because it is of native growth with
these nations? Ought the French to reject saving banks be-
cause they were first established and developed in England,
and ought the English to discard Jacquard's loom because
invented in France ?
The son of Sirach said, that wisdom was hovering like
the clouds until it "took root in an honorable people" 1
the Israelites. It is thus with all wisdom, all great ideas and
comprehensive systems. They take root with " an honor-
able people," that develops them. After that come the winds
of heaven and carry the seeds far and about. Patriotism
and national vanity are not the same. Patriotism is ex-
cellent so long as it is the love of its own to such a degree
that it is ready to make any sacrifice, and to do all for its
benefit ; it is not a virtue when it consists in being enamored
lican Roman self-government. The French in trying to renovate Latin-
ism, seem to fall, as to principle, into an anachronism not dissimilar to that
into which the Germans fell as to language when they officially called
their empire, down to its dissolution, the Holy Roman Empire of the
Germans.
1 Ecclesiasticus, 24.
AND SELF-GOVERNMENT. 299
with itself. Narcissus is not the symbol of patriotism, hut
Lycurgus and Solon are, travelling far in order to gather
knowledge for their own country.
At all great and distinct periods of modern history, there
are a general idea and certain adequate forms pervading the
whole. Such was the papal period at the beginning of the
middle ages ; such was the universal feudal system ; such the
period of universities springing up everywhere ; such the pe-
riods of art ; such the periods of Abelard and scholastic phi-
losophy; such the rising of free cities in all active parts of
Europe ; such the ardor of maritime discovery and enthusiasm
for "cosmography;" such the period of monasteries; such
protestantism; and such is, I believe, the present period of
civil liberty, which, for centuries to come, will be essentially
of the Anglican type. To learn liberty, I believe that
nations must go to America and England, as we go to
Italy to study music and to have the vast world of the fine
arts opened to us, or as we go to France to study science, or
to Germany that we may learn how to instruct and spread
education. It was a peculiar feature of antiquity that law,
religion, dress, the arts and customs, that everything in fact
was localized. Modern civilization extends over regions, tends
to make uniform, and eradicates even the physical differences
of tribes and races. 1 Thus made uniform, nations receive and
1 The mutual influence of different literatures is daily extending.
Take as an instance the literature of England, France, Germany, and
the United States, and add the mutual influence of the journals of these
nations. Then consider how many of the elements of civilization are
not national, but common to all the alphabet, the numeric signs, with
the decimal system, musical notation and music itself, commercial usages
and bookkeeping, international law, social intercourse and laws of polite-
ness ; the visiting card, the railway, the steamboat, the post-office, the
institution of money, the bill of exchange, insurance indeed it is im-
possible to enumerate all the agreements of nations belonging to our
race. I shall only add the dress, the furniture and even cookery.
The most recent and a choice illustration of progressive uniformity of
our race and its civilization, is the adoption of Commander Maury's,
U. S. N., plan of a uniform maritime observation and record, adopted
300 ON CIVIL LIBERTY.
give more freely. If it has pleased God to appoint the An-
glican race as the first workmen to rear the temple of liberty,
shall others find fault with Providence ? The all-pervading
law of civilization is physical and mental mutual dependence,
and not isolation.
Many governments deny liberty to the people on the ground
that it is not national ; yet they copy foreign absolutism.
There is doubtless something essential in the idea of national
development, but let us never forget two facts : Men, however
different, are far more uniform than different ; and most of
the noblest nations have arisen from the mixture of others.
by many governments in consequence of the naval congress at Brussels,
m 1853. May a uniform standard of value soon follow. The wide-
spread dollar or scudo has prepared the way for it.
CHAPTER XXV.
THE INSTITUTION. ITS DEFINITION. ITS POWER FOR GOOD
AND EVIL.
IT has been shown that civil liberty, as we understand and
cherish it, consists in a large amount of individual rights,
checks of power and guarantees of self-government. We have
more or less fully indicated that self-government, in the sense
in which we take it, and in connection with liberty, consists in
the independence of the whole political society, in a national
representative government and local self-government, which
implies that even general laws and impulses are carried out
and realized, as far as possible, by citizens who, in receiving
an office, be it by election or appointment, essentially remain
citizens, and do not become members of a hierarchy of place-
men. 1 We have seen that self-government, in general, requires
1 At a sumptuous ball, which the city of Paris gave, in the year 1851,
to the commissioners of the London Exhibition, I was sitting in a cor-
ner and reflecting on the police officers in their uniforms and the actual
patrols of the military pompiers in the very midst of the festive and
crowded assemblage, when I was introduced to one of the first statesmen
of France and a liberal member of the national assembly. He had been
at London, to view the exhibition. It was the first time he had visited
England. " Do you know," said he, " what struck me most far more
than the exhibition of works of art and industry ? It was the exhibition
of the civism anglais (this was the term he used) in the London police."
It may be readily supposed that an American citizen turned his face
toward the speaker, to hear more, when the Frenchman continued : " I
am in earnest. The large number of policemen, with their citizen
appearance, although in uniform, seeming to be there for no other pur-
pose than to assist the people and the people ever ready to assist them
this is what has most attracted my attention. Liberty and the govern-
(301)
302 ON CIVIL LIBERTY
that there be an organism to elaborate and ascertain public
opinion, and that, when known, it shall pass into law, and,
plainly, rule the rulers; that government interfere as an ex-
ception, and not as the rule ; and that, on the other hand,
self-government neither means self-absolutism, nor absence of
rule, but that, on the contrary, liberty requires a true govern-
ment. A weak government is a negation of liberty; it cannot
furnish us with a guaranteeing power, nor can it procure
supremacy for public will. In other spheres it may be true
that license is exaggerated liberty, but in politics there can be
nothing more unlike liberty than anarchy.
We have still to ascertain how this system of civil liberty
is to be realized. Liberty cannot flourish, nor can freedom
become a permanent business of actual life, without a perma-
nent love and a habit of liberty. How is the one to be engen-
dered, and the other to be acquired ?
There is no mathematical formula by which liberty can be
ment of law are even depicted in their police, where we should seek it
least. "What is it that strikes you most in coming here ?"
" The American," I replied, " in visiting the continent of Europe, is
most impressed by the fact that the whole population, from Moscow to
Lisbon, seems to be divided into two wholly distinct parts the round
hats, the people, and the cocked hats, the visible government. The two
layers are as distinct as the hats, and the traveller sees almost as many
of the one form as of the other."
There are large police establishments in all European states. Densely
peopled countries require them. The different spirit and organiza-
tion, however, of these establishments are most characteristic. No-
thing, perhaps, shows more the character of a citizen-government in
England than the wide-spread institution of the police, which has
developed itself, under Sir Robert Peel, out of the ancient constable.
It has great power; it has preventive, detective and custodial authority;
yet it is supported by the citizens, and no one fears that it ever will be
used as an institution of political espionage and denunciation as dela-
tores of old and mouchards of modem times. It is strictly under the
public law, and that implies under publicity. There is a whole literature
on this subject, but I know of no brief paper exhibiting so well its essen-
tial character as the seventh paragraph of Mittermaier's English, Scot-
tish and American Penal Processes.
AND SELF-GOVERNMENT. 303
solved, nor are there laws by which liberty can be decreed,
without other aids. We gain no more by throwing power un-
checked into the hands of the people. It remains power, and
is not liberty, and people still remain men. Flattery does not
change us, for we are all
" Obnoxious, first and last,
To basest things," 1
and thus flattery is no foundation for liberty. Each one of us
may be declared a sovereign, as every Frenchman was desig-
nated in a solemn circular, 2 by the provisional government ; or
the people may be called almighty le peuple tout-puissant
as in the midst of loathsome political obscenity they were
termed by the dictatorial government when they were expected
and led to vote for a new emperor, and thus by an act of om-
nipotence to extinguish every vestige of their power. They
were asked to divest themselves of this very omnipotence,
which nevertheless is exclusively claimed for the nation as
inherent in its own nature, and to submit their omnipotence
to a still greater power of one man. Nothing of all this is
liberty. Self-immolation, even where it is an actual and not
a theoretical act of free agency, is not life.
Enthusiasm is necessary for liberty as for every great and
noble work, but enthusiasm comes and goes like the breezes
of the ocean. How shall they be used for the positive interests
of the navigator ? Enthusiasm is not liberty, nor does the
reality of liberty consist in an gesthetical love of freedom. The
1 Paradise Lost, book 9, line 170.
' 2 In a circular, sent by the provisional government all over France
before the general election for the national constituent assembly, in
1848, was this sentence : " Every Frenchman of the age of manhood
is a political citizen ; every citizen is an elector ; every elector is a
sovereign. There is no one citizen who can say to another : 'You are
more of a sovereign than I.' Contemplate your power, prepare to
execute it, and be worthy of entering on the possession of your king-
dom." The author of these phrases is Mr. de Lamartine, who says,
in his Revolution of 1848: "The reign of the people is called the
republic."
304 ON CIVIL LIBERTY
poet may be as much the priest of liberty as he is the seer of
love, but poetry is no more the thing it sings than theory is
the deed, or ethics the character of man.
Education has been considered by many as the true basis of
popular liberty. It is unquestionably true, and proudly ac-
knowledged by every lover of modern popular liberty, that a
wide-spread and sound education is indispensable to liberty.
But it is not liberty itself, nor does it necessarily lead to it.
Prussia is one of the best educated of countries, but liberty
has not yet found a dwelling-place there. The Chinese govern-
ment is avowedly based upon general education and democratic
equality in the hierarchy of officers, but China has never made
a step in the path of liberty. Education is almost like the
alphabet it teaches. It depends upon what we use it for.
Many despotic governments have found it their interest to
promote popular education, and the schoolmaster alone cannot
establish or maintain liberty, although he will ever be acknow-
ledged as an efficient and indispensable assistant in the cause
of modern freedom. Liberty stands in need of character.
How then is real and essential self-government, in the ser-
vice of liberty, to be obtained and to be perpetuated ? There
is no other means than a vast system of institutions, whose
number supports the whole, as the many pillars support the
rotunda of our capitol. They may be modest in their appear-
ance, and even unseen by the passer-by, as those pillars are,
but they are nevertheless the real support.
Let us then consider the nature of institutional liberty more
closely. In order to appreciate this subject, it will be desira-
ble to inquire first into the nature of institutions in general.
According to the highest meaning which the term has gra-
dually acquired, an institution is a system or body of usages,
laws, or regulations of extensive and recurring operation, con-
taining within itself an organism by which it effects its own
independent action, continuance, and generally its own farther
development. Its object is to generate, effect, regulate or
sanction a succession of acts, transactions or productions of a
peculiar kind or class. The idea of an institution implies a
AND SELF-GOVERNMENT. 305
degree of self-government. Laws act through human agents,
and these are, in the case of institutions, their officers or
members.
We are likewise in the habit of calling single laws or usages
(which are laws of spontaneous growth) institutions, if their
operation is of vital importance and vast scope, and if their
continuance is in a high degree independent of any interfering
power. These two characteristics establish a close affinity
between such laws and institutions proper as they have been
just defined. Thus we call marriage an institution in considera-
tion of its pervading importance, its extensive operation, the
innumerable relations it affects, and the security which its con-
tinuance enjoys in the conviction of almost all men, against
any attempts at its abolition. Indeed, we generally mean by
the term Institution of Marriage, pretty much the institution
of the family, that is, the family as a community sanctioned
and fostered by the law, by authoritative usages, and by reli-
gion the cluster of laws and usages, social, political, and
religious, which relate to this well-defined community.
It always forms a prominent element in the idea of an insti-
tution, whether the term be taken in the strictest sense or not,
that it is a group of laws, usages and operations standing in
close relation to one another, and forming an independent
whole with a united and distinguishing character of its own.
A system of laws very often consists of a variety of systems,
each enjoying a proportionate degree of self-government, as a
general organism is composed of many organs with distinct and
peculiar functions of their own, although working in unison
and according to the principles and regulative laws of the
general organism. We have many institutions which consist
of a number of institutions either of the first mentioned or
second sort, and as institutions may exist in all the great
spheres of human action, it naturally results that there are in-
stitutions of the greatest variety in character and extent. A
bank, parliament, a court of justice, the bar, the church, the
mail, a state are institutions, as well as the lord's supper, a
university, the inquisition, all the laws relating to property,
20
306 ON CIVIL LIBERTY
the sabbath, the feudal system. The Roman triumph, the
Hindoo castes, the bill of exchange, the French Institute, our
presidency, the New York tract society, the Areopagus or
the Olympic games, an insurance company, the janizaries,
the English common law, the episcopate, the tribunate, the
"captainship" of a fishing fleet on the banks, "the crown,"
the German book trade, the Goldsmith's Company at London,
our senate, our representatives, our congress, our state legis-
latures, courts of conciliation, the justiceship of the peace, the
priesthood, a confederacy, the patent, the copyright, hospitals
for lunatics, estates, the East India Company all these and
thousands more are or were institutions in the one or the other
adaptation of the term. Whether they are good or bad, ex-
pedient or unwise, human or divine, has nothing to do with the
distinctive character of an institution as such.
" The School," that is to say, the whole school system, as
well as the modern national army, in Prussia, have been called
institutions, when it was desired to express the idea that they
are establishments of vast importance and that they enjoy a
supposed degree of independent vitality. Baron Bunsen, in
his Hyppolitus, calls the book of common prayer a " national
institution." 1
The noun Institution is, indeed, formed of the verb to Insti-
tute, but it does not, on that account, express, as noun, the
action or the effect of that which constitutes the meaning of
the verb. The sense of the noun frequently diverges from
that of the verb, in all languages, and especially so in the
English. 2 We institute an inquiry ; but an inquiry is not an
1 Vol. iii. 293. A member of. the late French national assembly,
speaking of the enormous California lottery, which was then in its full
ruinous operation in France, used the expression: "This is not a
lottery; it is a series of lotteries; I ought to say an institution of lot-
teries."
The exaggeration was carried farthest when an English newspaper
called the Duke of Wellington an institution. We see, however,
through the exaggeration, the original sense universally attributed to
the term.
a The word is a finished and a given thing ; the idea is in a constant
AND SELF-GOVERNMENT. 307
institution ; and on the other hand, there are many institutions
which have never been instituted. They have grown.
This class of institutions forms in a certain point of view
the most important, as will be admitted when we consider that
the jury, systems of common law, the British parliament and
our bicameral systems of the legislature, most governments
and the states themselves, are grown institutions.
The English language has but one term for both, the cres-
cive. institutions, as they might be termed, and the instituted
or enacted institutions, such as a corporation, congress or our
legislatures ; whose institutors are the people enacting the
constitutions. Grown or spontaneous institutions are not ill-
defined or loosely distinguished from one another on that
account ; they may be as individualized as a shady tree in the
forest ; and enacted or contrived institutions are not confined
and narrow on that account. They may be as extensive in
action as an Atlantic steamship. The speakership is a well-
defined crescive institution ; the supreme court of the United
States is a vast enacted institution.
Most of the institutions which owe their origin to sponta-
neous growth have become in course of time mixed institutions.
state of expansion or contraction, far exceeding the formative powers
even of the most perfect language, so that frequently a whole class of
words derived from the same root retains nothing in common but a
vague association of ideas, and even this often vanishes. The history of
the changing meaning of man's words is instructive, and equally so the
history of the changing word. I need only allude to such remarkable
words as Stare, Status, Statute, Stand, Establishment, Stabilis. Estate,
and the whole history through which the meaning of the word State has
passed and is still passing on the one hand, and the many branches such
as Stable, Staple, Staff, Station, Statistics ; or we may take Civts, Ci-
vitas, Civilis, Civilitas, Civility, Civil (in its two distinct terms,) Civili-
zation, Citizen;" Nascor, Nation, National; Populus, Publicus (for
populicus,) Public, People, Popular and Popularii ; Gignere, Genus,
Gens, Gentile, Gentle, Genteel, Gentleman, with the different meanings
through which this last word has passed from the time when it meant a
man of gentle, that is, not vulgar, not common blood or extraction, to
its present import, which relates exclusively to character and breeding.
Breeding itself might be mentioned here.
308 ON CIVIL LIBERTY
Positive legislation has become mingled with self-grown usage,
as is the case with the institution of property, the jury, the
bill of exchange, the Hindoo castes, money.
It is for the purpose of comprehending the grown as well
as the established institutions, that the words " usages, laws
or regulations," have been employed in the definition at the
head of this discussion.
Dr. Thomas Arnold, whose name few mention without vene-
ration, says, at the beginning of his Lectures on History:
" I would first say that by institution I wish to understand
such officers, orders of men, public bodies, settlements of
property, customs or regulations, concerning matters of gene-
ral usage, as do not owe their existence to any express law or
laws, but having originated in various ways, at a period of
remote antiquity, are already parts of the national system, at
the very beginning of our historical view of it, and are recog-
nized by all actual laws, as being themselves a kind of primary
condition on which all recorded legislation proceeds. And I
would confine the term laws to the enactments of a known
legislative power at a certain known period."
It will be seen that this writer restricts the meaning of the
term institution to what has been called grown institutions ;
nor does he do this with philosophical cogency. He enume-
rates instances rather than gives a definition ; and it seems
arbitrary to bestow the term on grown institutions only. It is
contrary to universal usage, as well as to the necessity of the
case. What is an instituted legislature of Wisconsin, an in-
corporated bank, an orphan asylum, or a chartered city
government, if it be not an institution ? According to Dr.
Arnold, scarcely a pure institution exists, for in all, or nearly
all institutions positive enactments have become mixed up with
the unenacted usage, as has been mentioned before.
Nor is it accurate to call certain "officers or orders of men"
institutions. What unites the individual officers into an insti-
tution ? or how can the institution outlast the individual offi-
cers existing at any given period ? How could the house of
representatives of congress be an institution, which every one
AND SELF-GOVERNMENT. 309
calls it, and which assuredly it is, when its members cease to
be such every two years ? They are but temporary members
of the perpetual institution. The institution itself is the
organic law in the Constitution of the United States which
provides for the organization and periodical renewal of the
house. The same is true with reference to the state and its
citizens, living at any given time. Citizens are born and
die, but the state is a continuum. The jury of the common
law is an institution now spreading over the territory of at
least sixty-eight millions of people, but the jurors form only
very transitory, although continually repeated representations
or embodiments of the institution. 1
It is this very fact, passed over by Dr. Arnold, that consti-
tutes one of the most important practical features of the
institution. It spreads the framework of the same system of
laws over sets of men periodically renewed, prescribing their
line of action, so that it becomes a consistent continuation of
that which their predecessors have done, or, to express it in
other words, it breathes the same leading principles into
different aggregates of men and different generations as the
same principles in varying matter produce and reproduce the
same seasons. The institution thus insures perpetuity, and
1 The term Institute seems to differ from Institution, according to pre-
sent usuage, in this, that the first, when it does not mean the initiatory
knowledge of a wide system of science (as the institutes of the pandects, of
medicine,) is chiefly used as a noun proper for an institution of learning
or the diffusion of knowledge, for instance French Institute, Mechanics'
Institute. It may be used as a generic term for institutions of diffusion
of knowledge of a higher character ; but it is frequently abused in these
cases. Schools of some pretence are called institutes, with that deplo-
rable extravagance with which common schools are called academies,
common colleges universities, auction rooms auction marts, a single
and simple person a party, every chairman a president, and which has
so sadly invaded our manly language that many superlative words, such
as splendid, magnificent, giantlike, transcendent, illustrious, and hun-
dreds of others can hardly be any longer used by a sober and vigorous
writer, and have become worth little more than old coins, once good
but now clipped, punched, and sweated by unlawful usage.
310 ON CIVIL LIBERTY
renders development possible, while without it there is little
more than subjective impulsiveness, which may be good and
noble, or ruinous and purely passionate, but always lacks con-
tinuity, and consequently development and safe assimilating
growth. A market assembly, convened at stated intervals,
without institutions, can produce little more than a succession
of instinctive or impulsive actions the more impulsive the
more exciting the subject is on which the uninstitutional mul-
titude acts. The same applies to larger communities, if they
act without institutions, and in this resemble the Indians of
the pampas, who meet and act on each question by simple ma-
jority, unguided, unmoulded, unrestrained by permanent laws
and usages, or without a maturing organism.
There is nothing so void of lasting good as that history which
consists of a mere succession of acts through which there runs
no connecting idea, and which show neither growth nor expan-
sion. It sinks to mere anecdotical chronology. All that is
deeply good or truly great, and not only vast, in the sense of
Attila's conquest, requires development and progress. Impul-
siveness without institutions, enthusiasm without an organism,
may produce a brilliant period indeed, but it is generally like the
light of a meteor. That period of Portuguese history which is
inscribed with the names of Prince Henry the Navigator,
Camoens and Albuquerque, is radiant with brilliant deeds, but
how short a day between long and dreary nights ! Portugal
had no institutions to perpetuate her glory, and that splendor
was but the accidental effect of fortunate circumstances hap-
pening to combine at that period. Noble national impulses,
without institutions, are at best happy accidents.
When it is said that one of the requisites of the institution
is that it shall contain within itself an organism by which it
effects its own independent action and continuance, it is obvious
that this must be taken in a comparative sense, because every
institution ought to stand in connection with others, and is
frequently a minor organism of a more comprehensive one; or
an institution may be actually the creature of the legislature,
and the legislature itself may be the creature of the constitu-
AND SELF-GOVERNMENT. 311
tion, which may have emanated from the sovereign will of the
people. Yet we call a body of laws or usages an institution
only when we unite the idea of an independent individuality
with it. It must have its own distinct character, its own pecu-
liar action, and it must not owe its continuance to the arbi-
trary mandate of a will foreign to it. Independence does not
mean disjunction or isolation.
If this were not so, we would not stand in need of the term
institution, and the simple term of Law or Ordinance would
suffice.
Neither the Romans nor the Greeks had a separate term for
institution ; l indeed the Greeks had not even distinct words for
the Latin jus and lex, a paucity of language which we share
with them ; and if the Romans had no word for institution,
although they had many real institutions, we have many import-
ant separate systems of law, such as the law of insurance, of
bailment, the maritime law, without having an appropriate
term for separate bodies of laws and rules. Nor did the
Roman probably feel the want of a word for Institution, for
.the same reason that he expressed time by saying : " Two
hundred years after the founded city." The thing itself, the
city, was in his mind. We would say: Two hundred years
after the foundation of the city. The foundation of the city,
an abstraction, is in our mind. The Roman said Respublica,
the Public Thing, and upon this raft of words, strong but
1 The Latin Institutum does not exactly correspond to our word
institution. It means a purpose, object, plan or design, and, finally,
a settled procedure, by which it is intended to obtain a certain ob-
ject ; hence a uniform method of action, to be observed when similar
cases occur. Institutum is very frequently used in conjunction with
consuetudo, and often means nothing more than settled usage with re-
ference to certain cases. Institutum thus designates one of the elements
of our Institution, but it does not include the idea of a distinctly limited
system of laws or usages with a considerable degree of autonomy, nor
does it comprehend the idea of our enacted institutions. Institutum
retains the idea of usage throughout. Still, it is readily seen how the
Roman word institutum was naturally changed and expanded into the
modern word Institution.
312 ON CIVIL LIBERTY
coarse, his own political progress and civic life forced him
to put a heavy freight of meaning, until it came to designate
the vast idea Commonwealth. The Roman was adverse to ab-
stract terms. 1 Abstracting was a process at which he was no
good hand. 2 The Greeks, however, may have lacked a proper
term for the idea institution, although so ready to abstract,
and possessed of a plastic language, which offered peculiar fa-
cilities for the formation of abstract terras, while yet the peo-
ple were characterized by an eminently political temperament,
simply because the Greeks were, comparatively speaking, not
a tribe of a strongly institutional bias. They were not prone to
establish political institutions, and, with the exception of the
Dorians, preferred to bring everything under the more or less
direct will of the mass. But, although the Greeks abstracted
well, and had a language in which they could readily cast any
abstraction, it must not be forgotten that they rather re-
1 The Roman shunned abstraction even though he should become
illogical. He said : In medias res, into the middle things, instead of
into the middle of things, and we moderns abstract even against all
sense. I read but yesterday in large letters over a shop this word
Carpetings. Here we have first an unmeaning abstraction of a simple
and sound word, carpet, and then a plural is made of the more abstract
term. The Americans, altogether inclined to use pompous and grandi-
loquent words, are also given to use abstract terms or those that
approach abstraction, far more than the English. The sign of the
smallest baker's shop will not be John Smith, Baker, but Bakery by
John Smith, perhaps even American Bakery, or, should it happen to
be near the sea, Ocean Bakery. A common shop of a green grocer
in the second largest city of the United States, calls itself United
States Market. The negroes have caught the fever. Not long ago
I saw a common shanty erected in a southern forest, to accommo-
date travellers with coffee while their luggage was ferried over a
river, adorned with the following words on a pine board : Jenny Lind
and Sontag Hotel. The railway bridge had been carried away, and this
cafe was erected for a few days only.
2 The best grammarians tell us that Latin nouns ending in w, and
adjectives ending in His, (that is, abstract terms,) must be used with
circumspection, and not without good authority, since they are com-
paratively rare in the best writers. It speaks volumes concerning the
Roman character and mental constitution.
AND SELF-GOVERNMENT. 313
stricted their terms of abstraction to philosophical speculation,
and in all the other spheres of life and action they manifested
the true antique spirit, that of positive reality. Their style
and expressions accorded with this bias. They might as easily
as ourselves have said the Union or the League of the Achaeans,
but their word for our union was simply "the whole," (TO
xobov.}
Few nations have evinced a greater and more constant ten-
dency to build up institutions, or to cluster together usages
and laws relating to cognate subjects into one system, and to
allow it its own vitality, than the Romans in their better period.
The Greeks, as has been observed, were far less an institu-
tional people There is a degree of adhesiveness and tenacity
a willingness to accumulate and to develop precedents, and
a political patience to abide by them necessary for the
growth of strong and enduring institutions, which little
agreed with the brilliant, excitable, and therefore changeable
Greeks. This was at least the case with the Athenians and
all their kindred, and to them belongs the main part of all
that we honor and cherish as Grecian.
The London Times has called the Queen of England an
institution. This is rhetorically putting the representative for
the thing the queen for the crown, which, itself, is a figura-
tive expression for the kingly element of the British polity.
Nevertheless, the meaning of the position that the Queen of
England is an institution, is correct and British. It originated
from a conviction, that the monarch of Great Britain is not
such by his own individuality, that he is not appointed by a
superior power or divine right, but that he enjoys his power
by the law of the land, which confines and regulates it. It
means that he is the chief office-bearer, or, it may be, the
chief emblem-bearer, of a vast institution which forms an in-
tegral part of the still more comprehensive institution called
the British government or the state. 1 In the same way are
1 The reader who desires to become acquainted with the opposite
view, must turn to the Christian Politics, by Rev. Win. Sewell, Fellow
and Subrector of Exeter College, London, 1848 ; a book which carries
314 ON CIVIL LIBERTY
the lord chancellor, the justice of the peace, the coroner, in-
stitutions; not indeed the individuals who happen to be
invested with the office, but those systems of laws and usages
which they represent at the time.
It is likewise obvious why very old usages or offices of large
influence are often called institutions. The fact of their being
old proves a degree of independent action or existence. No
change of things around them has swept them away ; no power
'out the views of Filmer to an extent which that apologist of absolutism
never contemplated. It may be fairly considered to occupy the point
opposite to that of the most rabid socialist of France ; and, according
to the rule that we ought to dwell on works which carry their principles
to the fullest length, no matter what those principles may be, it is worth
the student's while to make himself acquainted with it. If he can get
through the whole, however, he is more patient than I found it possible
to be. According to Mr. Sewell, there is but one true government,
absolute monarchy, demanding absolute obedience; the king makes the
state, and the view I have endeavored to prove .in my Ethics, that the
state, despite of its comprehensive importance, still remains a means to
obtain certain ends, is attacked as the opinion of mere " philosophers."
The king, the house of lords, and that of the commons, as they ought
to be considered, indicate, according to this writer, the relation in which
possibly the three persons of the one deity stand. Filmer stopped short
at least with Adam. To counteract the revolting effect which may
have just been produced, I refer the reader to page 146, where he will
find, in a passage of great length, that the Greek at Marathon fought
only for his country, his hearth and his laws, while the Persian far sur-
passed him, because he fought for his king (those also who, according
to Herodotus, were whipped into battle ?), and that " a Christian eye
will look with far greater satisfaction and admiration on the Persians,
who threw themselves out of the sinking vessel, that by their own death
they might save their king, than upon Thermopylae or Marathon."
Enough ! I should not have alluded to such extravagances and crudi-
ties, were not the book a very learned yet illogical apology for a doc-
trine which many may have supposed to be dead, and did it not occupy,
in view of its preposterous theory, the first place of its class. Nor is it
historically uninteresting that such a work has been written in the mid-
dle of the nineteenth century. So much is certain, that were the Eng-
lish government actually founded upon that hyper-absolutism, which the
author considers so Christian, no one would be permitted to assail its
fundamental principles with that impunity which he now enjoys.
AND SELF-GOVERNMENT. 315
has ventured to strike them down. They appear to be rooted
in society itself, beyond the reach of government ; and single
offices occasionally are called institutions, by way of flattery,
because all feel that a real institution is in dignity superior to
a single law or office, on account of its inherent principle of
self-government.
The following, then, are necessary attributes of a complete
institution, taking the term in its full modern adaptation:
A system or an organic body of laws or usages forming a
whole ;
Of extensive operation, or producing widely spread effects ;
Working within a certain denned sphere ;
Of a high degree of independent permanency ;
With an individual vitality and an organism, providing for
its own independent action, and, frequently, for its own de-
velopment or expansion, or with autonomy ;
And with its own officers or members, because without these
it would not be an actual system of laws, but merely a pre-
script in abeyance.
The institution is the opposite of subjective conception,
individual disposition and mere personal bias. The institution
implies organic action. In this lies, not only its capacity of
perpetuating principles and of insuring continuous, homoge-
neous and expansive action, but also its great power, its gran-
deur, its danger, and its mischief, according to its original
character and its inherent principle. Christ imprinted on his
church the missionary character, and from the apostles to the
servants of the gospel who lately starved near Cape Horn, the
institution of the missionary ministry has been the pioneer and
handmaid of extending civilization. But if the institution is
intrinsically bad, or contains vicious principles, it lends addi-
tional and fearful power to the evil element within it, and
gives a proportionate scope to its calamitous influence. If it
be established in a sphere in which the subjective ought to
prevail, it becomes an agent of ruin by making the objective
prevail more than is desirable, or by making the annihilation
of individuality one of its very objects. The gigantic institu-
316 ON CIVIL LIBERTY
tion of the Society of Jesus, and some of the modern Trade's
Unions are impressive and amazing examples.
Whenever men allow themselves to glide into the belief that
moral responsibility can be aught else than individual, and
that responsibility is divisible, provided many perform but one
act ; whenever the esprit du corps prevails over the moral con-
sciousness of man, which is inseperable from his individuality,
the institution gives a vigor to that which is unhallowed and
unattainable by the individual. The institution is, like every
union of men, subject to the all-pervading, elementary law of
moral reduplication, as I have called it on previous occasions,
and which consists in this, that any number of united indivi-
duals, moved by the same impulse, conviction or desire,
whether good or bad whether scientific, aesthetic or ethical,
patriotic or servile, self-sacrificing or self-seeking will coun-
tenance and impel each other to far better or far worse acts,
and will develop in each other the powers for the specific good
or evil, in a far greater extent, than would have been possible
in each separate individual. It is the law which is illustrated
by the excellence of whole periods in one particular sphere ;
by the rapid decadence of nations when once their fall begins ;
by the lofty character of some times, and by the contaminating
effect of indiscriminate imprisonment ; by the power of ex-
ample ; by the silliness which at times pervades whole classes or
communities ; by the sublime, calm heroism on board a sinking
man-of-war, and at other times by the panic of large masses.
It is'the universal law of mutual countenance and excitement.
If an institution is founded on a vicious principle, or if a bad
impulse has seized it for a time, it will not only add to the evil
force, according to the general law of moral reduplication, but
lend additional strength by the force of its organization and
the continuity of its action. Members of an institution will
do that which, singly, they would never have dared to perpe-
trate. They will deny the obligation of paying what is due to
widows and orphans, in cases which would have made them
look upon the denial as disgraceful, had they acted in their
AND SELF-GOVERNMENT. 317
own individual capacity. Thousands who have committed acts
of crying cruelty as members of the Holy Office would not
have been capable of committing them individually. The in-
stitution in these cases has the same effect which all united
and continuous action has.
On the other hand, institutions have been able, for the
same reason, to resist iniquitous inroads, or its members have
been wrought up to a manly devotion, when the individual
would not, and, often at least, could not, have resisted. In al-
most all cases of an invasion of rights by one of the domestic
powers, we find that some institution has formed the breakwater
against the rushing tide of power. There are many instances,
such as the "Case of the Bishops" under James II., and the
rejoicing of the better disposed Frenchmen, when the court
of Paris declared itself, although in vain as it turned out,
competent to judge of the spoliation which the dictator had
decreed against the Orleans family, that show how instinct-
ively men look toward institutions for support and political
salvation.
I have purposely restricted my remarks on the resisting
force of institutions to cases of invasion by domestic powers.
When foreign invaders trample upon rights and grind down
a people, something different and sharper is required to rouse
them, to electrify them into united resistance. Humanity
itself must be stung; an element in man's very nature must
be offended, so that the most patient cannot endure the oppres-
sion any longer. We find, therefore, that innumerable popular
risings against foreign despots, in antiquity and modern times,
have taken place, when the insolent oppressor, having gone all
lengths, at last violates a wife or a daughter. Such outrage
comes home to the most torpid heart, and will not be borne
by the veriest slave.
We investigate, here, the nature of the institution in gene-
ral. Like everything possessing power, it may serve for weal
or woe, as we have seen. Constituted evil is as much worse, as
constituted good is more efficaciously good than that effected
by the individual. When we know the essential nature of the
318 ON CIVIL LIBERTY
Institution, we shall be able to judge when, and where, and
how it may be used beneficially. An institution is an arch :
but there are arches that support bridges, and cathedrals, and
hospitals ; and others that support dungeons, banquet rooms
of revelry, torture chambers, or spacious halls in which criminal
folly enacts a melancholy farce with all the pitiful trappings of
unworthy submission.
The greater or less degree in which the institutional spirit
of different nations is manifested furnishes us with a striking
characteristic of whole nations. The Romans, the Nether-
landers, and indeed all the Teutonic tribes, until the dire
spirit of dis-individualizing centralization seized nearly all the
governments of the European continent, were institutional na-
tions. The English and ourselves are still so. The Russians
and all the Sclavonic nations, the Turks and the Mongolian
tribes, seem to be remarkably uninstitutional.
A similar remark naturally applies to different species of
governments. Some do not only result from a decidedly insti-
tutional tendency of the people at large, but they also promote
it, while there is in others an inherent antagonism to the
institution. No absolutism, whether that of one or many,
brooks institutions. Cunning monarchical absolutism, some-
times, allows the forms of institutions to exist, in order to use
them for its own purpose. The reason why all absolutism is
hostile to living institutions is not only because all abso-
lute rulers discountenance opposition, but because there is in
every despotism an ingrained incompatibility with independent
action and self-government, in whatsoever narrow circle or
moderate degree it may strive to maintain itself. This is so
much the case that often despots of the best intentions for the
welfare of the people have been the most destructive to the
remnants of former, or to the germs of future institutions, in
the very proportion in which they have been gifted with bril-
liant talents, activity and courage. These served them only
to press forward more vigorously and more boldly in the
career of all absolutism, which consists in the absorption of
individuality and institutional action, or in levelling everything
AND SELF-GOVERNMENT. 319
which does not comport with a military uniformity, and with
sweeping annihilation of diversity.
As institutions may be good or bad, so may they be favora-
ble or unfavorable to liberty. They may indeed give to the
representative of the institution great freedom, but only for
the repression of general freedom. The viziership is an insti-
tution all over Asia, and has been so from remote periods, but
it is an institution in the spirit of despotism, and forms an
active part of the pervading system of Asiatic monarchical
absolutism. The star chamber was an institution, and gave
much freedom of action to its members, yet the patriots under
the Stuarts made it their first business to break down this
preposterous institution. When in 1660 the Danes made their
king hereditary and absolute, binding him by the only oath
that he should never allow his or his successors' power to be
restricted, the Danish crown became undoubtedly a new insti-
tution, but assuredly not propitious to liberty. Of all the
Hellenic tribes the Spartans were probably the most institu-
tional, but they were communists, and communism is hostile to
liberty. They dis-individualized the citizens, and, as a matter
of course, extinguished in the same degree individual liberty,
development and progress. A state in which a citizen could
be punished because he had added one more to the commonly
adopted number of lute strings, cannot be allowed to have
been favorable to liberty.
Many of those very attributes of the institution proper,
which make it so valuable in the service of liberty, constitute
its inconvenience and danger when the institution is used
against it. It is a bulwark, and may protect the enemy of
liberty. It is like the press. Modern liberty or civilization
cannot dispense with it, yet it may be used as its keenest
enemy.
CHAPTER XXVI.
THE INSTITUTION, CONTINUED. INSTITUTIONAL LIBERTY. IN-
STITUTIONAL LOCAL SELF-GOVERNMENT.
CIVILIZATION, so closely connected with what we love in
modern liberty, as well as progress and security, themselves
ingredients of- civil liberty, stands in need of stability and
continuity, and these cannot be secured without institutions.
This is the reason why the historian, when speaking of such
organizers or refounders of their nations as Charlemagne,
Alfred, Numa, Pelayo, knows of no higher name to give them
than that of institutors.
The force of the institution in imparting stability and giving
new power to what otherwise must have swiftly passed away,
has been illustrated in our own times in mormonism. Every
observer who has gravely investigated this repulsive fraud will
agree that as for its pretensions and doctrines it must have
passed as it came, had it not been for the remarkable charac-
ter which Joseph Smith possessed as an institutor. 1 Thrice
blessed is a noble idea, perpetuated in an active institution, as
charity in a hotel-dieu ; thrice cursed, a wicked idea embodied
in an institution.
1 The great ability of this man seems to be peculiarly exhibited in his
mixture of truth and arrant falsehood, his uncompromising boldness and
insolence, and his organizing instituting mind. Two men have met
almost simultaneously with great success, in our own times Joseph
Smith and Louis Napoleon. Of the two, the first seems the more clever.
What he performed he did against all probability of success, without
any assistance from tradition or prestige.
(320)
ON CIVIL LIBERTY. 321
The title of institutor is coveted even by those who repre-
sent ideas the very opposite to institutions.
Louis Napoleon Bonaparte, when he inaugurated his go-
vernment, dwelt on the "institutions" he had established, 1
with pride, or a consciousness that the world prizes the
founding of good institutions as the greatest work of a states-
man and a ruler.
Institutions may not have been viciously conceived, or have
grown out of a state of violence or crime, and yet they may
have become injurious in the course of time, as incompatible
with the pervading spirit of the age, or they may have be-
come hollow, and in this latter case they are almost sure to be
1 He meant, of course, the senate, legislative corps, and the council
of state. Why he calls these new institutions we cannot see, but he
evidently wished to indicate his own belief, or desired that others
should believe, in their permanency, as well perhaps as in their own
independent action. To those, however, who consider them as nothing
more than the pared and curtailed remnants of former institutions, who
do not see that they can enjoy any independent action of their own,
and are aware that their very existence depends upon the mere for-
bearance of the executive ; who remember their origin by a mere de-
cree of a dictator bound by no superior law, to those who know with
what studied and habitual sneer "parliamentary governments" are
spoken of by the ruling party in France, all these establishments appear
in principle no more as real institutions than a tent on a stage. The
' constitution" of the present empire (Napoleon I. always spoke of les
constitutions de I' empire) is a close copyof the organic laws of the first
empire. Now, few of my readers, probably, are aware, that the very
name of senatus-consultum, which played so important a part in the
first empire, and by which the most violent fundamental changes were
effected, was literally smuggled in by Napoleon I. He did so on occa-
sion of the conspiracy of Cerachi and others, when the council of state
resolved that no law should be demanded, because that "would lead to
discussion." The list of condemned was passed by the council of state,
upon a report of the police, not even signed, and the senate adopted and
decreed it, as a senatus-consultum. Memoirs of Miot de Melito, (him-
self a counsellor of state,) vol. i. page 360 and sequ. It hardly deserves
mention here, that Napoleon adopted the term from the Roman empire,
which was his political beau-ideal, as he did many other terms and
symbols.
21
322 ON CIVIL LIBERTY
injurious. Hollow institutions in the state are much like empty
boxes in an ill-managed house. They are sure to be filled
with litter and rubbish, and to become nuisances. But great
wisdom and caution are necessary to decide whether an insti-
tution ought to be amputated or not, because it is a notable
truth in politics that many important institutions and laws
are chiefly efficient as preventives, not as positive agents.
It is not sufficient, therefore, that at a glance we do not
discover any palpable good produced by the institution, to
justify us in destroying it. Antiquity is prima facie evidence
in favor of an institution, 1 and must not rashly be confounded
with obsoleteness ; but antiquity is certainly no proof against
positive and grounded arguments. On the other hand, hollow
institutions have frequently the serious inconvenience of de-
ceiving and changing the proper venue, as lawyers would ex-
press it. The form of a representative government, without
the spirit, true principles and sincere guarantees of self-govern-
ment in that body, or without being founded upon a candid
and real representation, is worse than a government without
these forms, because it eases the executive of the responsibility
which without that hollow form would visibly rest on it alone. 2
1 I am aware that many persons believe now-a-days so little in this
truth that not only does antiquity of itself appear to them as a proof of
deficiency, but they turn their face from the whole Past, as something
to be shunned, thus forgetting the continuity of society, progress and
civilization. Mr. Guizot, in his lectures on the History of Representa-
tive Governments, delivered in Paris, 1820, found it necessary to warn
his hearers against this horror of the past. The reader will find re-
marks on the impossibility of " beginning entirely anew," in my Political
Ethics.
z Count Miot relates that when Napoleon, as consul, desired to change
the entire character of the house of representatives, in order to bring it
under the exclusive control of the executive, but hesitated to make an
organic change by mere violence, Talleyrand at last suggested, that the
other assembly had no business assigned to it; why should it not be made
to sanction the measure? The history of the whole consulate, and of
the early period of the empire, is a striking and continuous illustration
of the assistance which a despot derives from mere forms of liberty with-
out the reality of freedom. It would seem that Napoleon I. established
AND SELF-GOVEKNMENT. 323
But here, again, it is necessary to observe that an institution
may for a time become a mere form, and yet that very form
may soon be animated again by a proper spirit. Parliament
under Henry VIII. had become a subservient tool, highly
noxious because it formally sanctioned many atrocious mea-
sures of the king. Yet, it was that same parliament which
rose to action and importance within fifty years, and within a
century and a half became the virtual seat of government and
supreme power in the state. There is hardly a portion of the
penal trial which has not at times and for an entire period
been abused ; yet the existence of this very trial, intended
to rest on the principle of independence, became in a better
period the starting-point of a new order of things.
We must also mention the fact that there are perennial and
deciduous institutions, or institutions avowedly fit only for a
preparatory state of civilization. Their office is limited in
duration, like that of the deciduous teeth, which must be drawn
if they do not drop of themselves, or if they resist too obsti-
nately their perennial substitutes.
We may here close our general remarks on institutions, and.
now, investigate in what the force of the institution consists,
when wisely taken into the service of liberty, and inquire into
the characteristics of self-government in particular.
By institutional self-government is meant that popular
government which consists in a great organism of institu-
tions or a union of harmonizing systems of laws instinct
with self-government. It is essentially of a co-operative
certain forms, in conquered countries, for the very purpose of assigning
the appearance of responsibility to certain bodies of the state, while ho
left the government absolute. It is difficult otherwise to explain the
constitution which he decreed for Naples, (page 359, vol. ii. of Memoirs
of Count Miot de Melito,) according to which " the national represen-
tation" was to consist of one chamber divided into five sections, namely :
the clergy, nobility, proprietors, savans, and traders ; the clergy, no-
bility and savans holding their places for life ; the others, removable at
pleasure by the government. The Roman senate, when it had become
the recording body, of the imperial decrees, gave much support to the
emperors, by its appearance of an ancient institution.
324 ON CIVIL LIBERTY
character, and thus the opposite to centralism. It is arti-
culated liberty, and thus the opposite to an inarticulated
government of the majority. It is of an inter-guaranteeing,
and consequently, inter-limiting character, and in this as-
pect the negation of absolutism. It is of a self-evolving
and genetic nature, and thus is contradistinguished from
governments founded on extra-popular principles, such as
divine right. Finally, institutional self-government is, in
the opinion of our race, and according to our experience,
the only practical self-government, or self-government car-
ried out in the realities of life, and is thus the opposite of a
vague or theoretical liberty, which proclaims abstractions, but,
in reality, cannot disentangle itself from the despotism of
one part over another, however permanent or changing the
ruling part may be.
Institutional self-government is the political embodiment of
self-reliance and mutual acknowledgment of self-rule. It is
in this view the political realization of equality.
Institutional self-government is the only self-government
which makes it possible to unite seZf-government and self-
government.
According to the Anglican view, institutional self-govern-
ment consists in the fact that all the elementary parts of the
government, as well as the highest and most powerful branches,
consist in real institutions, with all the attributes which have
been ascribed to an institution in the highest sense of the term.
It consists, farther, in the unstinted freedom and fair protection
which are granted to institutions of all sorts, commercial, re-
ligious, cultural, scientific, charitable and industrial, to germi-
nate and to grow provided they are moral and do not invade
the equal rights of others. It receives its aliment from a per-
vading spirit of self-reliance and self-respect the real afflatus
of liberty.
It does not only require that the main functions of the
government the legislative, the judicial, and the executive
be clearly divided, but also that the legislature and the ju-
diciary be bona fide institutions. The first French constituent
AND SELF-GOVERNMENT. 325
assembly pronounced the separation of the three powers, and
was obliged to do so, since it intended to demolish the abso-
lutism which had grown up under the Bourbons ; but so long
as there existed an absolute power, no matter of what name,
that could dictate, liberty was not yet obtained. Indeed, it
may be said that an efficient division of power cannot exist,
unless the legislature and the judiciary form real institutions,
in our sense of the term.
These institutions, again, consist of many minor institutions,
as an organism consists of many minor ones. Our congress is
a real institution, but its component parts, the senate and
house of representatives, are its constituent institutions, and
the whole is in close connection with other institutions, for
instance the state legislatures, or depends upon others such
as the common law.
Yet the self-government of our country or of England would
be considered by us little more than oil floating on the sur-
face of the water, did it consist only in a congress and state
legislatures with us, and in a parliament in England. Self-
government, to be of a penetrative character, requires the
institutional self-government of the county or district ; it
requires that everything which, without general inconvenience,
can be left to the circle to which it belongs, be thus left to its
own management ; it consists in the presenting grand jury, in
the petty jury, in the fact that much which is called on the
European continent the administrative branch, be left to the
people. It requires, in one word, all the local appliances of
government which are termed local self-government ; l and
1 T. Toulmin Smith's Local Self-government and Centralization, etc. ;
London, 1851.
A work which many of my readers will peruse with interest and in-
struction is Ferdinand B6chard's Lois Municipales des Republiques de
la Swisse et des Etats-Unis ; Paris, 1852. Mr. Bechard is also the author
of a Traite de 1'Administration IntSrieure de la France a work which
must be welcome to every inquiring citizen, because it pictures the
details of French centralization, the most consistently carried out cen-
tralization in existence.
Mr. Bechard uses repeatedly in his French work the English term
Self-government.
326 ON CIVIL LIBERTY
Niebuhr says that British liberty depends at least as much on
these as on parliament, and in contradistinction to them he
calls the governments of the continent Staats-Regierungen,
(state governments, meaning governments in which all detail
is directed by the general and supreme power.) 1
It must be in view of this local self-government, combined
with parliamentary freedom, that Sir Edward Coke said of the
Justice of the Peace : " It is such a form of subordinate
government for the tranquillity and quiet of the realm as no
part of the Christian world hath the like, if the same be duly
executed." 2
Anglican self-government requires that every institution of
local self-government shall have the right to pass such by-
laws as it finds necessary for its own government, without
obtaining the consent of any superior power, even that of the
crown or parliament, and that of course such by-laws shall
1 A German work, the title of which is: An Account of the Internal
Administration of Great Britain, by Baron von Vincke, edited by B.
(jl. Niebuhr; Berlin, 1815. Niebuhr, who had spent a portion of his
early manhood in England, published, and probably modelled in a great
measure, this work in order to influence, if possible, the Prussian go-
vernment, to reorganize the state after the expulsion of the French, and
to reclaim that kingdom from the centralization it had adopted in many
respects from the invaders of Germany. Niebuhr was a follower and
great admirer of Baron von Stein, who, when minister of Prussia, had
given to the cities some degree of self-government by his Stadte-Ord-
nung causing not a little umbrage to Napoleon. Niebuhr desired to
give increased life to the principles contained in the Cities' Charter,
when he published the work I have mentioned.
2 Coke's Institutes, part 10, ch. xxi., Justices of the Peace. The
Earl of Strafford, who, like his royal master, died so well, after, politi-
cally speaking, having lived so ill, bade his brother, on the scaffold, to
take this among other messages to his eldest son : " Wish him to con-
tent himself to be a servant to his country, as a justice of the peace in
his county, not aiming at higher preferment." May 12, 1641. Hush-
worth (who was on the scaffold,) vol. viii. p. 760. George Washington,
after having aided in founding a great commonwealth, and after having
been twice its chief magistrate, was a justice of the peace in his county,
in which he was imitated by John Adams, and, perhaps, by other ex-
preside tits.
AND SELF-GOVERNMENT. 327
stand good in the courts of law, and shall be as binding upon
every one concerned as any statute or law. I believe that it
is in the Anglican system of liberty alone, that by-laws are
enacted and have full force without consent of superior power.
There are in other countries exceptions, but they are rare
indeed, and very limited in power, while the by-law is the rule
in our system. The whole subject of the by-law is character-
istic and important, and stands out like the comprehensive
and peculiar doctrine of the Anglican warrant. The cha-
racter of self-government is moreover manifested by the fact
that the right of making by-laws is not derived from any
grant of superior power, but has been ever considered in the
English polity as inherent in the local community a natural
right of freemen. Coke says, with reference to these laws
and their force : " Of more force is the agreement of the folk
and people than the grant of the king;" 1 and in another
place he says : " The inhabitants of a town, without any
custom, may make ordinances or by-laws for any such thing
which is for the general good of the public, 2 unless indeed it
be pretended by any such by-law to abridge the general
liberty of the people, their inherent birthright, assured to all
by the common law of the whole land, and which that common
law, in its jealous regard for liberty, does not allow to be ab-
rogated or lessened even by their own consent much less,
therefore, by the consent of their delegates in parliament." 3
It may be added that by-law does not mean, as many sup-
pose, additional law, law by the side of another or comple-
mentary, but it means law of the place or community, law
of the bye or pye that is, of the collection of dwellers, or of
the settlement as we, in America, perhaps would naturally
express it. 4
1 8 Reports, p. 125. 2 5 Reports, p. 63. 3 Ibid., p. 64.
4 See Smith's Local Self-government, p. 230. The quotations from
Coke to which the three last notes refer are likewise in Smith's work,
which I recommend to every reader.
By, in by-law, is the same syllable with which the names of many
English places end, such as Derby, Whitby, and is etymologically the
228 ON CIVIL LIBERTY.
same with the German Bauen (to build, to settle, to cultivate,) which is
of the same root with the Gothic Bua and Boo, and especially the fre-
quentative Bygga, aedificare. See Adelung ad vcrbum Bauen. It is
a word which runs through all the Teutonic languages, ancient and
modern.
Gradually, indeed, bye-laws came to signify laws for a limited circle, a
small society, laws which any set of men have the right to pass for them-
selves within and under the superior law, charter, etc., which constitutes
them into a society, and thus it happened that bye-law was changed into
by-law, as we have by-ways, roads by the side of others. It cannot be
denied that by-law at present is used in the sense of law passed by the
side, as it were, of another and main law. Very few persons know of
the origin, and the present sense of by-law is doubtless that of collateral,
expletive or subordinate law. Such double derivations are not uncom-
mon in our language. The scholar is probably reminded, by this note,
of the term God, which we Christians derive from good, and a better,
holier derivation, as to the sense of the word, we cannot give to it ; yet
the historical derivation, the verbal etymology, if I might so say, is an
entirely different one. See Jacob Grimm's German Mythology, ad ver-
burn Gott. The starting-point of adoration is, with all tribes, dread,
acknowledgment of superior power; then follows acknowledgment of
wisdom, and last of all acknowledgment of goodness, purity, holiness.
CHAPTER XXVII.
EFFECTS AND USES OF INSTITUTIONAL SELF-DEVELOPMENT.
IN order fully to appreciate institutional self-government,
and not unconsciously to enjoy its blessings, as most of us
enjoy the breath of life "without reflecting on the organ of
respiration and the atmosphere we inhale, it is necessary to
present to our minds clearly and repeatedly, as we pass through
life and read the history of our race, what effects it produces
on the individual, on society, and on whole periods, and how
it acts far beyond the limits of the country where it prevails.
The advantages of institutional liberty and organized self-
government, diffused over a whole country or state, and pene-
trating with its quickening power all the branches of govern-
ment, may be briefly summed up in the following way :
Institutional self-government trains the mind and nourishes
the character for a dependence upon law and a habit of liberty,
as well as of a law-abiding acknowledgment of authority. It
educates for freedom. It cultivates civil dignity in all the
partakers, and teaches to respect the rights of others. It has
thus a gentlemanly character. It brings home palpable liberty
to all, and gives a consciousness of freedom, rights and cor-
responding obligations such as no other system does. It is
the only self-government which is a real government of self,
as well as ly self, and indeed is the only real self-government,
of which all other governments assuming the name of self-
government are but semblances, because they are at most the
unrestricted rule of accidentally dominating parties, which do
not even necessarily consist of the majorities. For it is a
truth that what is called a majority in uninstitutional coun-
tries, which struggle nevertheless for liberty, is generally a
minority, and often even a small minority.
(329)
330 ON CIVIL LIBERTY
Institutional self-government incarnates, if the expression
may pass, the idea of a free country, and makes it palpable, as
the jury is nobly called the country for the prisoner. It seems
that as long as institutions exist in full vigor, and no actual
revolution takes place, that odious and very stale part of a
successful general who uses the wreaths he has gained abroad,
as a means of stifling liberty at home, is unknown. Rome had
her Syllas and Marius, with their long line of successors, only
from the time when the institutional character of Rome had
begun to fade. A French writer of ability 1 mentions as a fact
worthy of note, that the Duke of Wellington never carried his
ambition higher than that of a distinguished subject, although
Napoleon expected the contrary ; and General Scott, in his
account of the offer which was made to him in Mexico, to take
the reins of that country into his own hands, and rule it with
his army, twice mentions the love of his country's institutions,
which induced him to decline a ruler's chaplet. 2
1 Mr. Lemoisne, Wellington from a French Point of View.
2 General Scott has given an account of this affair in some re-
marks he made at a public dinner at Sandusky, in the year 1852.
The generals of most countries would probably charge the victorious
general with niaiseric, for declining so tempting an offer. We delight
in the dutiful and plain citizen who did not hesitate, and as the occur-
rence possesses historical importance, the entire statement of the general
is here given. I have it in my power to say, from the best information,
that the following account is " substantially correct," and as authentic
as reports of speeches can well be made :
" My friend," said General Scott, " has adverted to the proposition
seen floating about in the newspapers. I have nowhere seen it correctly
stated that an offer was made to me to remain in that country and
govern it. The impression which generally prevails, that the proposi-
tion emanated from congress, is an erroneous one. The overture was
made to me privately, by men in and out of office, of great influence
five of whom, of enormous wealth, offered to place the bonus of one
million of dollars (mentioned below) to my credit in any bank I might
name, either in New York or London. On taking possession of the
city of Mexico, our system of government and police was established,
which, as the inhabitants themselves confessed, gave security for the
first time perfect and absolute security to person and property. About
two-fifths of all the branches of government, including nearly a majo-
AND SELF-GOVERNMENT. 331
Institutional self-government is of great importance regard-
ing the obedience of the citizen.
rity of the members of congress and the executive, were quite desirous
of having that country annexed to ours. They knew that, upon the
ratification of the treaty of peace, nineteen out of twenty of the persons
belonging to the American army would stand disbanded, and would be
absolutely free from all obligations to remain in the army another mo-
ment. It was entirely true of all the new regiments called regulars, of
all the volunteers, and eight out of ten of the rank and file of the old
regiments. Thirty-three and a third per cent, were to be added to the
pay of the American officers and men retained as the nucleus of the
Mexican army. When the war was over, the government overwhelmed
me with reinforcements, after there was no possibility of fighting an-
other battle. When the war commenced, we had but one-fourth of the
force which we needed. The Mexicans knew that the men in my army
would be entitled to their discharge. They supposed, if they could
obtain my services, I would retain these twelve or fifteen thousand men,
and that I could easily obtain one hundred thousand men from home.
The hope was, that it would immediately cause annexation. They offered
me one million of dollars as a bonus, with a salary of $250,000 per
annum, and five responsible individuals to become security. They ex-
pected that annexation would be brought about in a few years, or, if
not, that I could organize the finances, and straighten the complex
affairs of that government. It was understood that nearly a majority of
congress was in favor of annexation, and that it was only necessary to
publish a pronunciamento to secure the object. We possessed all the
fortresses, all the arms of the country, their cannon foundries and
powder manufactories, and had possession of their ports of entry, and
might easily have held them in our possession if this arrangement had
gone into effect. A published pronunciamento would have brought
congress right over to us, and, with these fifteen thousand Americans
holding the fortresses of the country, all Mexico could not have dis-
turbed us. We might have been there to this day, if it had been neces-
sary. I loved my distant home. I was not in favor of the annexation
of Mexico to my own country. Mexico has about eight millions of in-
habitants, and out of these eight millions there are not more than one
million who are of pure European blood. The Indians and mixed races
constitute about seven millions. They are exceedingly inferior to our
own. As a lover of my country, I was opposed to mixing up that race
with our own. This was the first objection, on my part, to this propo-
sition. May I plead some little love of home, which gave me the pre-
ference for the soil of my own country and its institutions? I came back
to die under those institutions, and here I am. I believe I have no more
to add in reply."
332 ON CIVIL LIBERTY
Obedience is one of the elements of all society, and conse-
quently of the state. Without it political society cannot hold
together. This is plain to every one. Yet there exists this
great distinction, that there may be obedience, demanded on
the sole ground of authority ; such is the obedience expected
by the parent. The authority of the parent comes from a
source not within the circle of the obeyers. And there may
be obedience, which has its very source within the circle of the
obeyers. Such is the source of obedience due to authority in
that society the component members of which live in jural
relations in one word, in the state. The freeman obeys, not
because the government exists before the people and makes
them, but because man is a being destined to live in a political
state because he must have laws and a government. It is
his privilege, and distinguishes him from the brute creation.
Yet, the government existing as a consequence of the jural
nature of society and of man, it is unworthy of a freeman to
obey any individual as individual, to follow his commands
merely because issued by him, while the citizen of a free coun-
try acknowledges it as a prerogative to obey laws.
The obedience of a loyal free citizen is an act of self-direct-
ing compliance with a rule of action ; and it becomes a triumph
of reason and freedom when self-directing obedience is thus
paid to laws which the obeyer considers erroneous, yet knows
to be the laws of the land, rules of action legitimately pre-
scribed by a body of which he forms a constituent part. This
noble attribute of man is never politically developed except
by institutions. To obey institutions of self-government has
nothing galling in it on the ground of submission. We do not
obey a person whom as individual we know to be no more than
ourselves, but we obey the institution of which we know our-
selves to be as integral a part as the superior, clothed with
authority. The religious duty of obeying for conscience sake
is not excluded from this obedience. On the contrary, it forms
an important element. The term " law-abiding people" could
never have become so favorite an expression with us, and would
not be inscribed even on the banners of some who defy the law,
AND SELF-GOVERNMENT. 333
were we not an institutional people under the authority of in-
stitutional self-government.
Rulers over thirty millions of people, like our presidents,
could not be easily changed, without shock or convulsion, were
not the thirty millions trained by institutional self-government,
were not the ousted minority conscious that, in the spontaneous
act of submitting, they obey an institution of which they form
as important a portion as the ruling party, and did not their
own obedience foreshadow the obedience which the others must
yield, when their turn comes. The "principle of authority"
has become for the time being as popular, at least as often
repeated a phrase, in France, as "abiding by the law" is with
us. Pamphlets are written on it, the journals descant on it.
If the object of these writings is to prove that there must be
authority where there is society, it would prove that the writers
must consider the opinion of some communists, that all govern-
ment is to be done away with, far more serious and dissemi-
nated than people at a distance can believe, to whom such
absurdity appears as a mere paper and opposition fanaticism.
If, however, all those discourses are intended to establish the
principle of authority in politics as an independent principle,
such as we find it in the church, because its institutor gave
divine commandments, it would only show that the ruling party
plainly desires absolutism. 1
1 There is no doubt in my mind that the institutional government is
the real school of civil obedience. Whether the following remarkable
passage, which I found in Baron Muffling's Memoirs of the Campaign of
1813 and 1814, edited by Col. Philip Yorke, London, 1853, must be in
part explained by the general self-government of England, and by the fact
that every English gentleman is accustomed to political self-government
and consequently to obedience, I shall not decide, but I strongly incline
to believe that we must do so. General Muffling was the Prussian officer
in the staff of the Duke of "Wellington, who served as an official link be-
tween the two armies. He was, therefore, in constant personal inter-
course with the English commander, and had the very best opportunity
of observing that which he reports.
"I observed," says General Muffling, "that the duke exercised far
greater power in the army he commanded than Prince Bllicher in the one
334 ON CIVIL LIBERTY
Institutional self-government distinguishes itself above all
others for tenacity and a formative, assimilative and transmis-
sible character.
Its tenacity is shown by the surviving of many institutions
even in the most violent changes, although little of a self-
governing character may be left in them. In no period is
this truth more strikingly illustrated than in the conquest of
the Roman empire by the Northern races. The Gothic sword
took lands and scaled towns, but it could not scale institutions,
and Theodoric assimilated his Germanic hosts to the remnants
of Roman institutions, rather than the Italians to the con-
querors. It has been so wherever the conqueror met with
institutions and did not in turn oppose institutions of his own,
as, in a great measure, the Visigoths did in Spain. The mili-
tary despotism which swept over the whole continent of Europe
left England unscathed ; even in spite of Cromwell's military
and organized absolutism, the institutions survived Cromwell's
vigor and the prostitution of England under Charles II.
Lord Macaulay says that it was probably better that the
English allowed Charles II. to return without insisting upon
distinct and written guarantees of their liberties. This may
be a disputable point, for we see that the English were after
all obliged to resort to them in the Declaration of Rights and
committed to his care. The rules of the English service permitted the
duke's suspending any officer and sending him back to England. The
duke had used this power during the war in Spain, when disobedience
showed itself among the higher officers. Sir Robert Wilson was an in-
stance of this.
" Amongst all the generals, from the leaders of corps to the com-
manders of brigades, not one was to be found in the active army who
had been known as refractory.
"It was not the custom in this army to criticize or control the com-
mander-in-chief. Discipline was strictly enforced ; every one knew his
rights and his duties. The duke, in matters of service, was very short
and decided. He allowed questions, but dismissed all such as were un-
necessary. His detractors have accused him of being inclined to en-
croach on the functions of others a charge which is at variance with
my experience."
AND SELF-GOVERNMENT. 335
Settlement ; but it will hardly be disputed that the reigns of
Charles II. and James II. would have been fatal to England
had she not been eminently institutional in her character.
The tenacious life of institutional liberty is proved per-
haps best in times of political mediocrity and material well-
being. Gloomy, or ardent, and bold times may try men's
souls, but periods of material prosperity and public depression
try a country's institutions. They are the most difficult times,
and liberty is lost at least as often by stranding on pleasant
shores as by wrecking on boiling breakers.
The formative character of institutional self-government
is shown in such cases as the formation of the Oregon
government, mentioned before. So does the extensive Bri-
tish empire in the East show the formative and vital cha-
racter of self-government. No absolute government could
have established or held such an empire at such a distance,
and yet an absolute ruler would consider it indicative of
feebleness and not of strength in a government, that a board
of shareholders could recall a governor-general, and that a
man like Sir Robert Peel, as premier, acquiesced in it.
Even the Liberians may be mentioned here. People who,
while with us, belonged to a degraded class, many of whom
were actual slaves, and the rest socially unfree, nevertheless
have carried with them an amount of institutionalism which
had percolated even down to them ; and a government has been
established by them which enjoys internal peace, and seems to
grow in strength and character every day, at the same time
that hundreds of attempts in Europe have sadly miscarried.
And, again, people of the same race, but having originally
lived under a government without the element of institutional
self-rule the inhabitants of St. Domingo resemble their
former masters in the rapid succession of different govern-
ments destitute of self-government and peace.
The words of Mr. Everett are doubtless 1 true, that "the
French, though excelling all other nations of the world in the
art of communicating for temporary purposes with savage
tribes, seem, still more than the Spaniards, to be destitute of
336 ON CIVIL LIBERTY
the august skill required to found new states. I do not know
that there is such a thing in the world as a colony of France
growing up into a prosperous commonwealth. A half a mil-
lion of French peasants in Lower Canada, tenaciously adher-
ing to the manners and customs which their fathers brought
from Normandy two centuries ago, and a third part of that
number of planters of French descent in Louisiana, are all
that is left to bear living witness to the amazing fact that not
a century ago France was the mistress of the better half of
North America." 1 Are they succeeding in establishing a
vigorous colony in Algeria? It seems not; and the question
presents itself, what is the reason of this inability of so in-
telligent a nation as the French to establish flourishing colo-
nies ? I believe that the chief reason is this : The French are
thoroughly wedded to centralism, and eminently uninstitutional
in their character. They want government to do everything
for them. They are peculiarly destitute of self-reliance in all
public and communal matters. They do not know self-govern-
ment ; they cannot impart it. Every Frenchman's mental
home is Paris, even while residing in France ; as to a colonial
life, he always considers it a mere exile. 2
The assimilative power and transmissible character of the
1 Mr. Everett's Address before the New York Historical Society,
1853.
2 There are doubtless many causes operating together, and one of these
may be that the French are not inherently fond of agriculture, as the
Germanic races are. The English are eminently so.
From the Canadian census published in 1853, the following difference
between French and the Anglo-Saxon colonists appeared : The inhabit-
ants of Lower Canada are chiefly of French origin, and are not much
fewer in number than the Upper Canadians ; the latter being 952,004,
and the former 890,261, according to the last census. But although so
close to them in point of numbers, and also in the quantity of land they
have under cultivation, the inhabitants of Lower Canada raise a much
smaller quantity of agricultural produce than the Upper Canadians ob-
tain from the soil. "With the exception of maple sugar and flax, in which
they far surpass the inhabitants of the Upper Province, they fall greatly
below them in nearly all the more valuable products.
AND SELF-GOVERNMENT. 337
institution are closely connected with its tenacity and forma-
tive character. Few things in all history seem to me more
striking, and, if analyzed, more instructive than the fact that
Great Britain, though monarchical in name, and aristocratic
in many points, plants freedqm wherever she sends colonies,
and becomes thus the great mother of republics ; while France,
with all her democratic tendencies, her worship of equality
and repeated proclamations of a republic, has never ap-
proached nearer to the republic than setting aside a ruling
dynasty; her colonies are, politically speaking, barren depen-
dencies. They do not bloom into empires. The colonies of
Spain also teach a grave lesson on this subject. 1
The power by which institutional self-government assimilates
1 The reader has a right to ask here, why then did not the Nether-
lands, so institutional in their character, establish prosperous sell-go-
vernments in foreign parts, as England did ? I believe the answer which
must be given is this :
The Netherlands lacked at home a protecting national government
proper one that could furnish them with a type of a comprehensive yet
popular general government. The Netherlandish colonies always re-
mained mere dependencies upon the executive. The Netherlanders did
not plant colonial legislatures.
The Netherlands, moreover, had lapsed into a state of sejunction. The
idea of their petty sovereignty was carried to the most ruinous extreme.
The Greeks colonized, indeed, by dotting as it were foreign parts. The
shores of the Mediterranean were sprinkled with Greek and Phoenician
colonies corresponding to the ancient city-states from which they had
branched off. But a Netherlandish town could not thus have established
a little colony in Java or the "West Indies.
Lastly, I believe the Netherlanders did not become the disseminators
of self-government, although institutional in their character, because
they had no living common law to take with them, as the talent of the
mother country. They had learned the civil law at least sufficient of it
to stifle farther development of common law. We know already that the
Roman Law, however excellent some of its principles are, is void of the
element of self-government, and, because superinduced, antagonistic to
self-development of law.
Nevertheless, it is a question of interest to Americans, whether, and
how far the settlers of New England were influenced by their sojourn
in the republican Netherlands. I throw out the question. It deserves
a thorough, yet very plain and unbiased inquiry.
22
338 ON CIVIL LIBERTY
various and originally discordant elements is forcibly shown
in the United States, where every year several hundred thou-
sand emigrants arrive from countries under different govern-
ments. The institutions of our country soon absorb and
assimilate them as integral parts of our polity. In no other
political system of which liberty forms any part, could this
be done. Imagine an influx of foreigners in a country like
France when she called herself republican, and the danger
of so large a body of foreigners would soon be perceived.
It would be an evil day indeed for the United States and
for the emigrants, if our institutions were to be broken up
and popular absolutism erected on the ruins of our institu-
tional liberty. We, of all nations on earth, are most in-
terested in the vigorous life and healthful development of
institutional self-government. No nation has so much reason
to shun mere inarticulated equality and barren centralization
as ourselves.
On the other hand, it may be observed that the Turks to
this day are little more than they were on the day of their
conquest isolated rulers, unassimilated and unassimilating,
having for centuries been in possession of the finest country
in Europe, whence in the fifteenth century our civilization re-
ceived a new impulse. So" unidentified are the Turks with the
country or its population that the idea of their expulsion from
Europe has in it nothing strange, or difficult to imagine. The
reasons cannot lie in their race, for they are no longer Mon-
golians; they cannot lie in their religion, for Mohammedans
have flourished. They have no political institutions, carrying
life and action within them, nor did they find institutions,
which might have absorbed, the conquerors. The Byzantine
empire had become a mere court government long before the
Turks conquered it, and the worst court government that ever
existed in Europe. 1
1 The same is said of the Manchous in China. The ruling soldier tribe
has not assimilated itself with the Chinese, and the expulsion of the dy-
nasty seems no incredible occurrence, even though the present rebellion
should not be successful. In the case of China, the conquered race had
AND SELF-GOVERNMENT. 339
The stability obtained by an institutional government is
closely connected with the tenacity which has been mentioned ;
but it is necessary to observe that an institutional self-
government seems to be the only one which unites the two
necessary elements of continuity and progression, or appli-
cability to changing conditions. Asia, with its retrospective
and traditional character, and without political mutations
proper, offers the sight of stagnation. France, with her
ardently prospective and intellectual character, but without
political institutions proper, lacks continuity and political
development. There is a succession of violent changes, which
made Napoleon I. exclaim, observing the fact but not perceiv-
ing the cause, " Poor nations ! in spite of all your enlightening
men, 1 of all your wisdom, you remain subject to the caprices
of fashion like individuals." Now, it is pre-eminently insti-
tutional self-government which prevents the rule of political
fashion, because, on the one hand, it furnishes a proper
organism by which public opinion is elaborated, and may
be distinguished from mere transitory general opinion,* from
acclamation or panic; and, on the other hand, it seems to
be the only government strong enough to resist momentary
many firmly-established laws and civil institutions, to which the conquer-
ing race continued strangers, at least so far as to remain chiefly soldiers.
No reliance is weaker than that which rests mainly on the army, even if
the army is in fighting order, which the Chinese is not.
1 The word reported to have been used by Napoleon -is Lumieres.
which may mean men who enlighten or the light which is given. The
passage is found in the Memorial de Sainte-Hel6ne, by Las Cases. Na-
poleon was speaking of the clergy, and the whole passage rtms thus :
" Je ne fais rien pour le clergS qu'il ne me donne de suite sujet de m'en
repentir, disait Napoleon ; peut-Stre qu'apres moi viendront d'autres
principes. Peut-Stre verra-t-on en France une conscription de prctree
et de religieuses, comme on y voyait de mon temps une conscription mili-
taire. Peut-gtre mes casernes deviendront-elles des couvents et des smi-
naires. Ainsi va le monde ! Pauvres nations ! en dpit de toutes voe
lumieres, de toute votre sagesse, vous demeurez soumises aux caprices
de la mode comme de simples individus."
2 Public Opinion and General Opinion have been discussed in the first
volume of Political Ethics.
340 ON CIVIL LIBERTY
excitement and a sweeping turn of the popular mind. Absolute
popular governments are liable to be influenced by every change
of general passion or desire, and monarchical concentrated
absolutism is as much exposed to the mutations of passions or
theories. The difference is only that single men ministers or
rulers may effect the sudden changes according to the views
which may happen to prevail. The English government, with
all its essential changes and reforms, and the lead it has taken
in many of the latter, during this century, has proved itself
stable and continuous in the same degree in which it is popular
and institutional, compared to the chief governments of the
European continent. The history of a people, longing for
liberty but destitute of institutional self-government, will
always present a succession of alternating tonic and clonic
spasms. Many of the Italian cities in the middle ages fur-
nish us with additional and impressive examples.
Liberty is a thing that grows, and institutions are its very
garden beds. There is no liberty which as a national blessing
has leaped into existence in full armor like Minerva from the
head of Jove. Liberty is crescive in its nature. It takes
time, and is difficult, like all noble things. Things noble are
hard, 1 was the favorite saying of Socrates, and liberty is the
noblest of all things. It must be defended, developed, con-
quered, and bled for. It can never be added, like a mere
capital on a column ; it must pervade the whole body. If the
Emperor of China were to promulgate one of the charters of
our states for his empire, it would be like hanging a gold
collar around the neck of a camel.
Liberty must grow up with the whole system ; therefore we
must begin at once, where It does not exist, knowing that it
will take time for perfection, and not indeed discard it,
because it has not yet been commenced. That would be like
giving up the preparation of a meal, because it has not been
commenced in time. Let institutions grow, and sow them at
once.
rd xa).d. May we not add xat xa).d TO. -^
AND SELF-GOVERNMENT. 341
We see, then, how unphilosophical were the words of the
present emperor of the French to the assembled bodies of
state in February, 1853, when he said : " Liberty has never
aided in founding a durable edifice ; liberty crowns it when it
has been consolidated by time."
History denies it ; political philosophy and common sense
alike contradict it. Liberty may be planted where despotism
has reigned,, but it can be done only by much undoing, and
breaking down ; by a great deal of rough ploughing. We
cannot prepare a people for liberty by centralized despotism,
any more than we can prepare for light by destroying the
means of vision. Nowhere can liberty develop itself out of
despotism. It can only chronologically follow the rule of ab-
solutism ; and if it does so, it must begin with eleminating its
antagonistic government. Every return to concentrated des-
potism, therefore, creates an additional necessity of revolution,
and throws an increased difficulty in the way of obtaining
freedom.
CHAPTER XXVIII.
DANGERS AND INCONVENIENCES OF INSTITUTIONAL SELF-.
GOVERNMENT.
INSTITUTIONAL self-government has its dangers and incon-
veniences, as all human things have, and if its success requires
the three elements necessary for all success of human action
common sense, virtue and wisdom, it must be added that,
while Self-Government accepts the ancient saying : Divide
and rule, in a sense different from that in which it was ori-
ginally meant, the opposite is equally true : Unite and rule,
as history and our own times abundantly prove.
It has been stated that nothing is more common than go-
vernments, which, fearing the united action of the nation, yet
being obliged to yield in some manner to the demand for liberty,
try to evade it and to deceive the people by granting provin-
cial representations or estates. In these cases division is indeed
resorted to for the greater chance of ruling the people, because
when separate, they are weak, and one portion may be
played off against the other, as the marines and sailors neu-
tralize one another on board the men-of-war. In no period
probably has this conduct of continental governments more
strikingly shown itself than in that which began with the
downfall of Napoleon, and ended with the year 1848. But it
must not be forgotten that by institutional self-government a
polity has been designated that comprehends institutions of
self-government for all the regions of the political actions of a
society, and it includes the general and national self-govern-
ment as well as the minute local self-government.
The self-government of a society, be this a township or a
nation, must always be adequate to its highest executive ; and
(342)
ON CIVIL LIBERTY. 343
when any branch is national, all the three branches must be
national.- The very nature of civil liberty, as we have found
it, demands this. They must work abreast, like the horses of
the Grecian chariot, public opinion being the charioteer. Had
England, as she has now, a general executive, but not, as now,
a general parliament, the self-government of the shires and
towns, of courts and companies, would soon be extinguished.
Had we a president of the United States and no national legis-
lature, it is evident that either the president would be useless,
and there would be no united country, or if the executive had
power, there would be an end to the state self-governments,
even if the president were to remain elective. Liberty requires
union of the whole, whatever this whole, or Koinon, as the
Greeks styled it, maybe, as has been already mentioned. Wis-
dom, practice, political forbearance and manly independence
can alone decide the proper degree of union, and the neces-
sary balance.
One of the dangers of a strongly institutional self-govern-
ment is that the tendency of localizing may prevail over the
equally necessary principle of union, and that thus a disinte-
grating sejunction may take place, which history shows as a
warning example in the United States of the Netherlands. I
do not allude to their Pact of Utrecht, which furnished an
inadequate government for the confederacy, and upon which
the framers of our federal constitution so signally improved,
after having tried a copy of it in the articles of the confede-
ration. I refer to the Netherlandish principle, according to
which every limited circle and even most towns did not only
enjoy self-government, but were sovereign, and to each of
which the stadtholder was obliged to take a separate oath of
fidelity. The Netherlands presented the very opposite ex-
treme of French centralism. The consequence has been that
the real Netherlandish greatness lasted but a century, and in
this respect may almost be compared to the brevity of Portu-
guese grandeur, though it resulted from the opposite cause. 1
1 We may also*mention as a want of union, the fact that unanimity of
344 ON CIVIL LIBERTY
The former constitution of Hungary, according to which
each comitate had the right to vote, whether it would accept
or not the law passed by the diet, 1 is an instance of the ruinous
effect of purely partial self-government. The nation, as na-
tion, must participate in it ; and Hungary lost her liberty, as
Spain and all countries have done, which have disregarded
this part of self-government.
Another danger is that with reference to the domestic go-
vernment, the local self-government may impede measures of
a general character. Instances and periods of long duration
occur, which serve as serious and sometimes as alarming com-
mentaries on the universal adage, that that which is every-
body's business is no one's business. The roads, considered
by the Romans so important that the road-law found a place
on the twelve tables, and sanitary regulations frequently suffer
in this way. The governments of some of our largest cities
furnish us with partial yet striking illustrations.
It might be added that one of the dangers of self-govern-
ment lies in this, that the importance of the institutional
character may be forgotten, that the limitations may be con-
sidered as fetters, and that thus the people may come to forget
that part of self-government which relates to the being go-
verned, and only remember that part which consists in their
governing. If this takes place, popular absolutism begins,
and one part rules supreme over the other.
We reply to these objections that it is a characteristic
of absolutism that it believes men can be ruled by formulas
and systems alone. The scholar of liberty knows that im-
portant as systems and institutions, principles and bills of
rights are, they still demand rational and moral beings, for
which they are intended, like the revelation itself, which is for
conscious man alone. Everything in this world has its dan-
all the states was required for all the most important measures, such as
taxation and war.
1 The author of the famous Oceana proposed a similar measure for
England, as St. Just, " the most advanced" follower of Robespierre, did
for France.
AND SELF-GOVERNMENT. 345
gers. In this lies the fearful responsibility of demagogues.
"Take power, bear down limitation," is their call on the peo-
ple, as it was the call of the courtiers on Louis XIV. Their
advice of political intemperance resembles that which is given
on the tomb of Sardanapalus, regarding bodily intemperance :
"Eat, drink and lust; the rest is nothing." 1
We must the more energetically cling to our institutional
government, and the more attentively avoid extremes. At
the same time the question is fair whether other systems
avoid the danger or do not substitute greater evils for it; and,
lastly, we must in this, as in all other cases, while honestly
endeavoring to remedy or prevent evil, have an eye to the
whole and see which yields the fairest results. Nothing,
moreover, is more dangerous than to take single brilliant facts
as representatives of systems. They prove general soundness
as little as brilliant deeds necessarily prove their morality.
It is these dangers that give so great a value to constitu-
tions, if conceived in the spirit of liberty. The office of a
good constitution, besides that of pronouncing and guarantee-
ing the rights of the citizen, is that, as a fundamental law of
the state, it so defines and limits the chief powers, that, each
moving in its own orb, without jostling the others, it prevents
jarring and grants harmonious protection to all the minor
powers of the state. 2
A constitution, whether it be an accumulative one, as that
of Great Britain, or an enacted one, as ours, is always of great
1 " The epitaph inscribed upon the tomb of Sardanapalus, ' Sardana-
palus, the son of Anacyndaraxos, built Anchiola and Tarsos in one day:
eat, drink and lust ; the rest is nothing,' has been quoted for ages, and
its antiquity is generally admitted." Layard's Nineveh, vol. ii. p. 478.
2 Constitutions, therefore, must not be changed too easily or too fre-
quently ; for, if a constitution be almost periodically changed, by the
sovereign power of the people, it is obvious that the absolute power of
the people in a degree enters as an element of government. Abso-
lutism, therefore, is approached. Parliament is theoretically omnipotent
in a political sense ; the people, with us, are politically omnipotent ; and
if the people enact new constitutions every five or ten years, the conven-
tion sits, in reality, as an omnipotent parliament.
346 ON CIVIL LIBERTY
importance, as indeed all law is important wherever there
is human action ; but, from what has been stated, it will be
readily perceived that constitutions are efficient toward the
obtaining of their main ends, the liberty of the citizen, only in
the same degree as they themselves consist of an aggregate of
institutions ; as, for instance, that of the United States, which
consists of a distinct number of clearly devised and limited,
as well as life-possessing institutions, or as that of England,
which consists of the aggregate of institutions considered by
him who uses the term British Constitution, of fundamental
and vital importance. It will, moreover, have appeared that
these constitutions have a real being only if founded upon
numerous wide-spread institutions, and feeding, as it were,
upon a general institutional spirit. Without this, they will be
little more than parchment ; and, important as our constitu-
tions are, it has already been seen that the institution of the
Common Law, on which all of them are based, is still more
important. It cannot be denied that occasional jarring takes
place in a strongly institutional government. It is, as we
have called it, of a co-operative character, and all co-opera-
tion may lead to conflict. There is, however, occasional jar-
ring of interests or powers, wherever there are general rules
of action.
This jarring of laws, and especially of institutions, so much
dreaded by the absolutists, whose beau-ideal is uncompromis-
ing and unrelieved uniformity, is very frequently the means
of development, and of that average justice which constitutes
a feature of all civil liberty. If there be anything instructive
in the history of free nations, and of high interest to the
student of civil liberty, it . is these very conflicts, and the
combined results to which they have led. It must also be
remembered that liberty is life, and life is often strife, in the
social region as in that of nature. If, at times, institutions
lead to real struggles, we have to decide between all the good
of institutional liberty with this occasional inconvenience, and
absolutism with all its evils and this occasional avoidance of
conflicting interests; for even under an absolutism it is but
AND SELF-GOVERNMENT. 347
occasional. What domestic conflicts have there not been in
the history of Russia and Turkey !
The institution unquestionably results in part from, and in
turn promotes, respect for that which has been established or
grown. This leads occasionally to a love of effete institutions,
even to fanaticism ; but fanaticism, which consists in carrying
a truth or principle to undue length, irrespective of other
truths and principles, equally important, besets man in all
spheres. Has absolutism not its own bigotry and fanati-
cism ? l
1 I have expressed my view on this subject in an address to a gradu-
ating class. I copy the passage here, because I believe the truth it
contains important :
"Kemember how often I have endeavored to impress upon your minds
the truth, that there is no great and working idea in history, no impulse
which passes on through whole masses, like a heaving wave over the sea,
no yearning and endeavor which gives a marking character to a period,
and no new institution or new truth, which becomes the substantial ad-
dition that a certain age adds to the stock of progressive civilization
that has not its own caricature and distorted reflection along with it.
No Luther rises with heroic purpose, without being caricatured in a
Carlstadt. The miracle wrought by Him, to whom it was no miracle,
is mimicked in toyish marvels for easy minds. The communists are to
the dignity of labor what the hideous anabaptists were to the reforma-
tion, or tyrannical hypocrites in England to the idea of British liberty in
a Pym or Hampden. There was a truth of elementary importance con-
veyed in the saying of former ages, however irreverent it may appear to
our taste, that Satan is the mimicking and grimacing clown of the Lord.
I will go farther, and assert, that no great truth can be said to have fairly
begun to work itself into practice, and to produce, like a vernal breath,
a new growth of things, if we do not observe somewhere this historic
caricature. Has Christianity itself fared better? Was the first idea,
which through a series of errors led to the anchorites and pillar saints,
not a true and holy one ? Does not all fanaticism consist in recklessly
carrying a true idea to an extreme, irrespective of other equally true
ones, which ought to be developed conjointly, and under the salutary in-
fluence of mutual modification ? There is truth in the first idea whence
the communist starts, as much so as there is truth in the idea which
serves as a starting-post for the advocate of the ungodly theory of divine
right; but both carry out their fundamental principle to madness, and,
ultimately, often run a muck in sanguinary ferocity. Do not allow your-
348 ON CIVIL LIBERTY
When an institution has become eflfete ; when nothing but
the form is left ; when its life is fled in one word, when the
hull of an institution remains, and it has ceased to be a real
institution, it is inconvenient, dangerous, or it may become
seriously injurious. Nothing, as I stated before, is so con-
venient for despotism, as the remaining forms of an obsolete
freedom, or forms of freedom purposely invented to deceive.
A nobility stripped of all independence, and being nothing
but a set of court retainers, the Roman senate under the
emperors, the court of peers under Henry VIII., represen-
tative houses without power or free action, courts-martial
dictated to by a despot, elections without freedom, are fear-
ful engines of iniquity. They bear the responsibility, with-
out free agency. They are in practice what syllogism is
without truthfulness. But this is no reproach to the insti-
tution in general, nor any reason why we ought not to rely
upon it. Many an old church has served as a den for robbers.
Shall we build no churches ? If the institution is effete, let it
be destroyed, but do it, as Montesquieu says of laws in general,
"with a trembling hand," lest you destroy what only appeared
to your one-sided view as effete.
Still more vigorously must the battering-ram be directed
against institutions which from the beginning have been bad,
or which plainly are hostile to a new state of things. There
are institutions as inconsistent with the true aim of society,
though few are as monstrous, as the regularly incorporated
prostitutes of ancient Geneva were. They must be razed.
All historical development contains conservatism, progress and
revolution, as Christianity itself is most conservative and most
revolutionary. The vital question is, when they are in place.
And from all that has been stated, it must have appeared that
the institution greatly aids in the best progress of which society
is capable, that which consists in organic changes, changes
selves, then, to be misled by these distortions, or to be driven into hope-
less timidity, which would end in utter irresolution, and a misconception
of the firmest truths."
AND SELF-GOVERNMENT. 349
which lie in the very principles of continuity and conservatism
themselves.
There are no countries on the European continent where
such constant and vast changes are going on, in spite of all
their outer revolutions, as in the United States and England,
for the very reason that they are institutional governments
that there exists self-government with them ; yet they move
within their institutions. This truth is symbolically exempli-
fied in Westminster Abbey and the Champ-de-Mars. Century
after century the former has stood, and what course of histo-
rical development has flowed through it ! What representa-
tive festivities, on the other hand, from the feast of the uni-
versal federation of France in 1790 to the distribution of
eagles to the army in May, 1852, have succeeded each other
on the latter revolutionary, conventional, republican, impe-
rial, royal, imperial-restorational, again Bourbonian, Orlean-
istic, socialistic, and uncrowned-imperialist and imperial yet
centralism has worked its steady dis-individualizing way
through all. 1 There are " sermons in stones," and sermons
in places.
1 The following is taken from a late (1852) French paper. It is of
sufficient symbolic interest to find a place in a note :
In 1790, on the 14th of July, the anniversary of the taking of the Bas-
tile was celebrated by what was called the Fete of the Universal Federa-
tion of France. Delegations were sent to it by every department, city,
town, and village in the country, all eager to manifest their enthusiasm
for the revolution of 1789. Every hundred of the National Guards was
represented by six members ; and there were also six deputies from every
regiment of infantry, and four for every regiment of cavalry. These " con-
federates," as they were styled, were all entertained by the inhabitants of
Paris, who are said to have rivalled each other in hospitality. In order
to afford facilities to the immense number of spectators who were ex-
pected on the Champ-de-Mars, over twelve thousand workmen were
employed to surround it with embankments. Fears, however, being still
entertained that the work would not be completed in time, all Paris
turned out to assist. Men, women, and children, the National Guard,
priests even, and sisters of charity, all took part in it. The Abbe Sieves
and Viscount Beauharnais were seen tugging together at the same wheel-
barrow. At the entrance to the field was erected an immense triumphal
ON CIVIL LIBERTY
arch ; while in the centre was raised an altar, called the Altar of the
Country, at which officiated Talleyrand, then Bishop of Autnn. A
bridge of boats was stretched across the Seine, near the Champ-de-Mars,
where since has been erected the bridge of Jena.
In 1791, on the 18th of September, there was a splendid Fete for the
publication of the constitution, and for receiving the oath of fidelity to
it from Louis XVI.
In 1792, on the 15th of April, the Fete of Liberty was celebrated.
The centre of attraction was an enormous car, in which was placed a
statue of Liberty, holding a liberty-cap in one hand, and in the other a
club. To such an extent was the principle of freedom carried on this
occasion, that there was not a single policeman present to preserve order.
The master of ceremonies was armed only with an ear of corn ; never-
theless, there is said to have been no disorder.
In 1793, there was &fete in honor of the abolition of slavery. On the
10th of August of the same year, there was & fete for the acceptance of
the constitution of 1793. The president of the convention received eighty-
three commissioners from the departments ; after which the registers
upon which were inscribed the votes of the Primary Assemblies were
brought to him, and he deposited them upon the " Altar of the Country,"
amid the firing of cannon, and the rejoicing of the people, who swore to
defend the constitution with their lives. On the second of December
following, the Fete of Victories took place, in celebration of the taking
of Toulon. On this occasion the Altar of the Country was transformed,
by the poet-painter David, into a temple of immortality.
In 1794, on the 21st of January, the anniversary of the death of Louis
XVI. was celebrated by all the principal authorities going to the Altar
of the Country, and renewing their oath of hatred to royalty. On the
ninth of June of the same year, the Fete of the Supreme Being com-
menced at the Tuileries, and was terminated on the Champ-de-Mars.
In the centre of the plain a " Mountain" was thrown up, surmounted by
an oak. On the summit of the mountain were seated the representatives
of the people ; while near them were a number of young men, with drawn
swords in their hands, in the act of striking a symbolical figure of the
" monster fanaticism."
In 1796, on the 21st of January, the anniversary of the death of Louis
XVI. was again celebrated. All the public functionaries renewed once
more their oath of hatred to royalty, and the people spent the day
singing the Marseillaise, Ca ira, and various patriotic songs. On the
thirtieth of March following, the Fete of Youth took place, on occasion
of arming all the young men over sixteen years of age ; and on the
thirtieth of April, on the proposition of Carnot, the Fete of Victories
was celebrated.
In 1798, on the 20th of March, was the F&e of the Sovereignty of the
AND SELF-GOVERNMENT. 351
People. On the tenth Vendemaire, there was a funeral fete in memory
of General Hoche. On the tenth Messidor, the Fete of Agriculture took
place, with a great display of chariots, cattle, fruits, etc. During the
five supplementary days of the revolutionary year, there was a series of
fetes, with an exposition of all the products of French industry, on the
Champ-de-Mars.
In 1801 there were/^es in memory of the foundation of the Republic,
and in celebration of general peace, which were attended by the First
Consul.
In 1804, on the 10th of November, Napoleou, then emperor, repaired
to the Champ-de-Mars, and there received the oath of fidelity and obe-
dience from deputations representing all the corps of the army.
In 1814, on the 7th of September, the government of the Restoration
distributed colors to the National Guard of Paris. The object of this
distribution was to efface, if possible, even the memory of the eagles of
the empire, and of the tri colored standard of the revolution. An altar,
glittering with gold and costly drapery, was erected near the military
school, and in front was placed the throne occupied by Louis XVIII.,
who was accompanied by the Count of Artois, the Duke of Angouleme,
and the Duke of Berri. Mass was celebrated by the archbishop of Paris,
M. Talleyrand Perigord, uncle of the bishop of Autun, who, as we have
seen, officiated at the Fete of Federation in 1790. The National Guards
defiled before the Throne, while the band played Vive Henry IV. and
Charmante Gabrielle.
In 1815, on the 1st of June, there was a fete in celebration of the re-
turn of the emperor. Napoleon appeared on the throne with his three
brothers. A mass was performed ; the constitution was acclaimed with
enthusiasm ; and the air was rent with cries of Vive NapoUon I The
oath was taken with enthusiasm. Napoleon addressed the soldiers from
the throne in the following words :
" Soldiers of the National Guard of Paris ; soldiers of the Imperial
Guard ; I confide to you the imperial eagle, with the national standard.
You swear to defend it with your lives, if need be, against the enemies
of the country and this throne. You swear never to rally tinder any
other banner."
During the restoration, the Champ-de-Mars was used chiefly for re-
views of the National Guard ; the most notable of which was the last
one passed by Charles X., when the citizens manifested that hostility to
the king which was a prelude to the revolution of 1830.
In 1837 there was a grand fete in honor of the marriage of the Duke
of Orleans, on which occasion the crowd in the Champ.-de-Mars was so
great that twenty-four persons were suffocated or crushed to death.
During most of the reign of Louis Philippe, however, the principal
352 ON CIVIL LIBERTY.
gatherings in the Champ-de-Mars were on occasion of military reviews
and horse-races.
In 1848, on the 22d of May, the fete of Concord was celebrated with
great pomp. The Moniteur alluded to the occasion thus :
"This solemnity was celebrated with an eclat enhanced by the mag-
nificent weather. Under so clear a sky, and surrounded by so many
joyful countenances, how was it possible to experience any feelings but
those of love, conciliation and harmony? What struck us, especially,
was the attitude, so full of enthusiasm and confidence, of the vast con-
course of people that crowded the Champ-de-Mars ; cries, a thousand
times repeated, of Vive la Rtpubtique! Vive la Rtpublique Dtmocra-
tique! Vive I'AssembUe Nationals! broke out, in formidable chorus,
every instant, as if to proclaim the respect of the people for the institu-
tions which they have adopted, and their invincible repugnance to every
retrograde or reactionary idea."
To the foregoing must be added the gigantic military fete on the 10th
of May, 1852, called the Fete of Eagles, that is, the distribution of eagles
to all the regiments of the army. A cock had been adopted as symbol
of the first republic, owing either to an etymological misconception of
the word Gallia, or to an intended pun on it. The emperor adopted the
Roman eagle ; the Bourbons brought back the three fleurs de lys ; and
in 1830 the cock was restored. Louis Napoleon, when president for ten
years, restored the imperial eagle. It must be owned the cock looked
very much as our turkey would have looked had we adopted Franklin's
humorous proposition of selecting our native and respectable turkey,
instead of our fine native eagle.
What feast will be celebrated on the same spot next ? Whatever it
may be, probably it will be nothing intrinsically different from the last.
CHAPTER XXIX.
ADVANTAGES OF INSTITUTIONAL GOVERNMENT, FARTHER
CONSIDERED.
THERE are some additional observations suggested by the
subject of institutional self-government and by that of the
institution in general, which have been deferred in order to
avoid an interruption of the general argument, and to which
it is necessary now to turn our attention.
It seems to me a symptomatic fact that the term People has at
no period, so far as I am acquainted with the domestic history
of England, become in politics a term of reproach, not even
in her worst periods. On the contrary, the word People has
always been surrounded with dignity, and when Chatham was
called "The people's minister," it was intended by those who
gave him this name as a great honor. It was far different on
the continent. In French, in German and in all the conti-
nental languages with which I am acquainted, the corres-
ponding words sank to actual terms of contempt. The word
Peuple was used in France, before the first revolution, by the
higher classes, in a disdainful and stigmatizing sense, and
often as equivalent with canaille that term which played so
fearful a part in the sanguinary drama of the revolution, and
which Napoleon purposely used, in order emphatically to ex-
press that he was or wished to be considered the man of the
people, when he said somewhat soldierly : Je suis moi meme
sorti de la canaille. 1 In German, the words Volk and Nation
1 The dictionary of the academy gives, as the last two meanings of
the word Peuple unenlightened men, and men belonging to the lowest
classes. Mr. Trench in his Lessons in Proverbs, quotes the French
Jesuit Bonhours, who says : Les proverbes sont les sentences du peuple.
23 353)
354 ON CIVIL LIBERTY
came actually to be used as vilifying invectives, even by the
lower classes themselves. The words never ceased indeed to
be used in their legitimate sense, but they were vulgarly
applied in the meaning which I have given. They acquired
this ignominious sense, because the nobility, a very numerous
class on the continent, looked with arrogance upon the people,
and the people, looking up to the nobility with stolid admira-
tion, aped the pride of that class. It is a universal law of
social degradation that it consists always of a chain of de-
graded classes who at the same time are or try to be in turn
degraders, as oppression begets the lust of oppressing in the
oppressed.
On the other hand, the English word People has never
acquired, not even during the English revolution, that import
of political horror, which Demos had in the times of Cleon for
the reflecting Athenian, or Peuple in the first French revolution.
What is the cause of these remarkable facts ? I can see no
other than that there has always existed a high degree of in-
stitutional self-government in England a very high degree, if
we compare her to the continent. The people never ceased to
respect themselves ; and others never ceased to feel their par-
tial dependence upon them. The aristocracy of England, a
patrician body, far more elevated than any continental no-
bility, still remained connected with the people, by the fact
that only one of the patrician family c*an enjoy the peerage.
et les sentences sont les proverbes des honnetes gens. (But there are
very wicked proverbs.) Honnfte means, indeed, frequently something
like the Latin honcsttts, and not exclusively our honest, but even with
this addition the English term People could never have been contradis-
tinguished from honnetes gens. To these remarks we must add the
mischievous error of giving the dignified name the people to some people
gathered together in the street. We find in the French papers and other
publications, at the time of the first revolution constant use of the term,
in such manner, as : le peuple has hanged a baker, etc., when the murder
was committed, by a rabble of a few. This confusion of a few lawless
people with the people, for whom the sovereign power was claimed, and,
in turn, the arrogation of the sacred name by a few Parisians, may be
observed throughout the history of the revolution.
AND SELF-GOVERNMENT. 355
This distinction does not, therefore, indicate a social status,
inhering in the blood; for that runs in the whole family. It
indicates a political position. 1
Possibly most of my American and English readers may
not perceive the whole import of these remarks, but let them
live for a considerable time on the continent of Europe, and
their own observations will not fail to furnish them with com-
mentaries and full explanations of the preceding pages.
Another subject to which I desire to direct attention is
Usage, which, as It has been stated, forms an important element
of the institution, and, consequently, of institutional govern-
ment. This is frequently not only admitted by the absolutists,
but in bad faith insisted upon. Continental servilists fre-
quently eulogize the liberty of the English, but wind up by
pointing at their institutions and their widely spread usages,
observing that since these are necessary and do not exist on
the continent, neither can liberty exist. It is a faithless plea
for servilism. An adequate reply is this : That in no sphere
can we attain a given end if we do not make a beginning,
and are not prepared for partial failures during that begin-
ning. If spelling is necessary before we can attain to the
skill of reading, we must not withhold the spelling-book from
the learner ; and we ought never to forget the law to which I
have alluded in a previous part of this work, namely, that the
advancement of mankind is made possible, among other things,
by the fact that when a great acquisition is once made on the
1 Aristocratic as England is in many respects, it is nevertheless true
that there is no nobility in the continental sense. The law knows of
peers, hereditary lawgivers, but it does not know even the word noble-
man. The peerage is connected with primogeniture, but there is no
English nobility in the blood. The idea of matsalliance has therefore
never obtained in England. There is no doubt that the little disposi-
tion of the English shown at any time to destroy the aristocracy, is in a
great measure owing to this fact, as doubtless the far more judicious
spirit of the English peers to yield to the people's demands, if clearly
and repeatedly pronounced, has contributed much. Mr. Hallam has
very correct remarks on the subject of English equality of civil rights,
where he speaks of the reign of Henry III.
356 ON CIVIL LIBERTY
field of civilization, succeeding generations, or other clusters
of men, are not obliged to pass through all the stages of pain-
ful struggle, or tardy experience, which may have been the
share of the pioneering nation.
The third additional remark I desire to make is, that insti-
tutional and diffused self-government is peculiarly efficient in
breaking those shocks which, in a centralized government,
reach the farthest corners of the country, and are frequently
of a ruinous tendency. This applies not only to the sphere of
politics proper, but to all social spheres which more or less
affect the political life of a nation. There are two similar
cases in French and English history which seem to illustrate
this fact with peculiar force.
Every historian admits that the well-known and infamous
necklace affair contributed to hasten on the French revolution,
by degrading the queen, and through her, royalty itself, in the
eye of France, which then believed in her culpable participa-
tion. England was obliged to behold a far more degrad-
ing exhibition the trial of Queen Caroline, the consort
of George IV. There was no surmise about the matter.
Royalty was exhibited before the nation minutely in the full-
est blaze of publicity, and mixed up with an amount of im-
mundicity the exact parallel to which it is difficult to find in
history. Every civilized being seemed to be interested in the
trial. The portrait of the queen and her trial were printed
on kerchiefs and sold all over the continent. The trial, too,
took place at a somewhat critical period in England. Yet I
am not aware that it had any perceptible effect on the public
affairs of England. The institutions of the country could not
be affected by it, any more than high walls near muddy rivers
are affected by the slime of the tides. But royalty on the
continent, trying at that very time to revive absolutism founded
upon divine right, 1 was damaged by the people thus seeing that
the purple is too scant to cover disgrace and vulgarity.
1 It was the time when Haller wrote his Restoration of Political
Sciences, in which he endeavors to excel Filmer, and does not blush to
AND SELF-GOVERNMENT. 357
Let an American imagine what would be the inevitable
consequences of local or sectional errors and excitements, of
which we are never entirely free, if we did not live under a
system of varied institutional self-government ; each shock
would be felt from one end of our country to the other with
unbroken force. Had we nothing but uninstitutional Gallican
universal suffrage, spreading like one undivided sea over the
whole, we could not continue to be a free people, and would
hardly be a united people, though not free.
A similar remark may be made with reference to that period
in French history which actually obliges the historian to be at
least as familiar with the long list of royal courtezans 1 as with
the prime ministers. The effect of this example of the court
has been most disastrous to all France. The courts of Eng-
land under Charles II. and James II. were no better. The
conduct of George I. and George II. added coarseness to
incontinency. The English nobility followed very close in
the wake of their royal masters ; but with them the evil
stopped. The people of England England herself remained
comparatively untouched, and while the court plunged into
vices, the people went their own way, rising and improving.
Had England been an uninstitutional country, the effect must
have been the same as that which ruined France.
Another observation suggested by the subject which we are
discussing is, that a wide-spread and penetrating institutional
hold up uncompromising absolutism, although a native of Switzerland.
Having secretly become a catholic, he passed into the service of the
Bourbons. The student of political science, desirous of making him-
self acquainted with the political literature of the European continent
of this period, in its whole extent, is referred to a German work of a
high order, Robert von Mohl's History and Literature of the Political
Sciences, 3 vols., large 8vo., Erlangen, 1855 to 1858, (containing 2052
pages.) The comprehensive erudition and liberal judgment of the
author, as well as the patient research in the literature of the day and
the past and of all civilized countries, make this work a storehouse of
historical and critical knowledge concerning political literature, for
which every scholar of this branch must feel deeply indebted to him.
1 The very etymology, with its present meaning, is significant.
358 ON CIVIL LIBERTY
self-government has the same concentrative effect upon society
which a careful and responsible occupation with one's own
affairs and duties has upon the individual. This may indeed
be counteracted and suspended by other and more powerful
circumstances ; but the natural effect of institutional self-
government is, I believe, such as I have just indicated.
A large and active nation, which therefore instinctively
seeks a political field of action for its energy, and which,
nevertheless, is destitute of self-ruling institutions, will gene-
rally turn its attention to conquest or any other increase of
territory, merely for the sake of conquest or of increased
extent, until a political gluttony is produced which resembles
the immoderate desire of some farmers for more land. They
neglect the intensive improvement of their farm, and are known
by every experienced agriculturist to be among the poorest
of their class. Expansion may become desirable or neces-
sary ; but a desire of extension merely for the sake of extension
is at once the most debilitating fever of a nation and the rudest
of glories, in which an Attila or Timour far excels a Fabius or
a Washington. So soon as a nation abandons the intensive
improvement of its institutions, and directs its attention solely
to foreign conquest, it enters on its downward course, and
loses the influence which otherwise might have been its share.
The truest, most intense, and most enduring influence a people
exercises upon others is through its institutions and their pro-
gressive perfection. 1 The sword does not plough deep.
1 There are persons among us who have fallen into this error ; and it
will always be found that they proportionately disregard our institutions,
or are not imbued with esteem, for institutional government. I lately
received a pamphlet in which the author wishes for a confederacy em-
bracing America from Greenland to Cape Horn. " Universal govern-
ments" were the dream of Henry IV., and again pressed into service by
Napoleon. I am not able to answer the reader, why that confederacy
should comprehend America only. There is no principle or self-defining
idea in the term America. America is a name. The water which sur-
rounds it has nothing to do with principles. Water, once the Disso-
ciabile Mare, now connects. , Polynesia ought to be added, and perhaps
Further Asia, and why not Hindostan? Our oath of allegiance might
AND SELF-GOVERNMENT. 359
This is the reason, it may be observed, why the historian,
the more truly he searches for the real history of nations, and
the more his mind acquires philosophical strength, becomes
the more attentive to the political life manifested by the
institutions of a people. It distinguishes a Niebuhr from a
common narrator of Rome's many battles. 1
On the other hand, we may observe a similar effect upon
cabinets. It seems to me one of the best effects of local and
national self-government, with its many elementary institu-
tions and a national representative government, that diplo-
macy ceases to form the engrossing subject of statesmanship.
Shrewd as English diplomacy has often proved, the history of
that country, in the eighteenth century, is a totally different
one from that of the other European countries in the same
period. It seems as if continental statesmanship sought for
objects to act on, in foreign parts, in concluding alliances
and making treaties ; in one word, as if diplomacy had been
cultivated for the sake of diplomacy. Yet nothing is surer to
lead to difficulties, to wars and suffering, than this reversed
state of things. 2
Some remarks on the undue influence of capitals in
countries void of institutions would find an appropriate place
here ; but they are deferred until we shall have considered
be improved by promising to be faithful to the United States et cetera,
as Archbishop Laud's famous oath bound the person who took it upon
an Et Cetera.
1 The same phenomenon may be observed in the more philosophical
division of history. People begin to divide the history of a nation by
the monarchs, or by any other labelling. When they penetrate deeper,
they divide history by the rise and fall of institutions, of classes, of
interests, of great ideas. To divide the history of England by George I.
and George II. is about as philosophical as if a geologist were to color
a chart, not according to the great layers that constitute the earth, but
by indicating where the people walking upon it wear shoes or sabots, or
walk barefooted.
2 We ought to compare the repeated advice of the greatest of Ame-
ricans, to beware of alliances, with the contents of such works as
Raumer's Diplomatic Dispatches of the Last Century. It is for this
reason that the present publicity of diplomacy has such vital importance.
360 ON CIVIL LIBERTY
somewhat more closely, the peculiar attributes of centraliza-
tion, the opposite of institutional self-government.
Patience, united with energy, is as much an element of
progress and efficient action in public concerns as in private
matters. Mr. Lamartine has feelingly said some excellent
truths on this subject, in his Counsellor for the People ; but it
does not seem possible to unite the two in popular politics and
in the service of liberty, except by the self-government which
we are contemplating. Patience, as well as desire of action,
can exist separately without an institutional government, but
in that case they are both destructive to freedom. Activity,
without institutions, becomes a succession of unconnected
efforts ; patience, without institutions that constantly incite
by self-government, and rouse as much as they form the mind,
becomes mere submission, and ends in Asiatic resignation.
It would seem, also, that by a system of institutional self-
government alone the advantage can be obtained of which
Aristotle speaks, when he says that the psephisma (the par-
ticular and detailed law) ought to be made so as to suit the
given cases by the Lesbian canon, 1 and ought to be applied so
as to fit the exact demands.
1 The cyclopian walls iu Greece and Italy, built before the memory
even of the ancients, and many of which still stand as firm as if raised
in recent times, have their strength in the irregularity of the component
stones, and the close fitting of one to the other, that no interstices are
left even for a blade of grass to grow. An irregular polygonal stone
was placed first ; sheets of lead were then closely fitted to the upper
and lateral surfaces. When taken off, they served as the patterns
according to which the stones to be placed next were hewn. It was
this sheet and this mode of proceeding which was called the Lesbian
canon or rule, while the canon or rule which the architect laid down
alike for all stones of an intended wall was called a general canon. See
On the Cyclopian Walls, by Forchhammer, Kiel, 1847. Now, Aristotle
compares the general law, the nomos, to the general canon, but the par-
ticular law, the psephisma, ought, as he says, to be made by the Lesbian
canon. Ethica ad Nicomachum, 5, 14. It is inelegant, I readily con-
fess, to use a figure which it is necessary to explain, but I am not
acquainted with any process in modem arts similar to the one used as
an illustration by the great philosopher, except the forming of the
AND SELF-GOVERNMENT. 361
It is on account of the institutional character of the British
polity in general and of the English constitution in particular
on account of the supremacy of the law and of the spirit
of self-government which in a high degree pervades the whole
polity and society of that country, that, long ago, I did not
hesitate to call England a royal republic. 1 Dr. Arnold, some
five years later, expressed the same idea, when in the intro-
duction to his Roman History he styles his country " a kingly
commonwealth." It will be hardly necessary to add that the
British commonwealth is in many respects of a strongly pa-
trician character, that it is occasionally aristocratic, and that
the Englishman believes one of the excellencies of his polity
to consist in the fact that it contains in the monarch an ele-
ment of conservatism apparently high above the contending
elements of progress and popular liberty. 2 What advantages
and disadvantages may be wound up in this portion of her
constitution, and how far the actual position of Great Britain,
the state of her population and her historical development,
may make it necessary, it is not our task to investigate, any
dentist's gold plate according to a mould taken from nature itself. I
naturally preferred the simile of the philosopher, even with an expla-
natory note, to the unbidden associations which the other simile carries
along with it. Nor would I withhold from my reader the pleasure we
enjoy when a figure or simile is presented to us, so closely fitting the
thought like the Lesbian canon, and so exact that itself amounts to the
enunciation of an important truth, well formulated. This is the case
with Aristotle's figure.
1 In my Political Ethics, first published in 1838.
2 I do 'not know that this opinion was ever more strikingly symbol-
ized than lately, when Lord John Russell, the leader of the administra-
tion in the commons, moved an address of congratulation to the queen
on the birth of a prince, and Mr. Disraeli, the leader of the opposition
in the same branch, seconded the motion, while a similar motion was
made in the lords by Lord Aberdeen, the premier of the administra-
tion, seconded by the Earl of Derby, the premier of the lately ousted
administration, and very bitter opponent to the present ministry. What
the queen is, in this respect, in England, the constitution or rather the
Union is in the United States. Our feelings of loyalty centre in these,
but not in our president, any more than an Englishman's loyalty finds a
symbol in his prime minister.
362 ON CIVIL LIBERTY
more than to inquire whether the steady progress of England
has not been toward a more and more fully developed institu-
tional self-government and virtual republicanism, or whether
the absolutists of the continent may be right as when they
maintain that England is no bona fide monarchy, and by her
unfortunate example is the chief cause of European unrest,
by which of course the advocates of despotic power mean the
popular longing for liberty.
My expression has been called "very bold." Whether it
be so or not is of little importance. I have given my rea-
son why I have called the English polity thus, and I may be
permitted to add that in doing so I meant to use no rhetorical
expression, but philosophically to designate an idea, the truth
of which has been ever since impressed on my mind more
strongly by extended study and the ample commentaries with
which the last lustres have furnished the political philosopher.
The opposite idea was expressed by a French politician of
distinction, when, in writing favorably of Louis Napoleon after
the vote which succeeded the second of December, but before
the establishment of the imperial throne, he said : " universal
suffrage is the republic." 1 It will be our duty to consider more
in detail the question, whether inorganic, bare, universal suf-
frage, has any necessary and intrinsic connection with liberty
or not, and to inquire into the consequences to which unin-
stitutional suffrage always leads. In this place I would only
observe that if he means by republic a polity bearing within its
1 Mr. Emil Girardin, who has been referred to several times. He is
an unreserved writer, who knows how to express his ideas distinctly,
and who is a representative of very large numbers of his countrymen.
In connection with the expression of Mr. Girardin given in the text, the
dictum of the Emperor Napoleon III. about the time of his elevation to
the throne, may be given. He said : In crowning me, France crowns
herself. The reader will find at the end of this work a similar expres-
sion of the emperor, when he opened the restored Louvre, namely, that
France, in building palaces for her kings, built them to honor herself
and to symbolize her unity. Unfortunately Louis XIV. sorely repented
on his death-bed, his passion for building, and expressed it in warning
counsel to Louis XV.
AND SELF-GOVERNMENT. 363
bosom civil liberty, the dictum is radically erroneous. If by
republic, however, nothing is meant but a kingless state of
politics, irrespective of liberty or the good government of
freemen, it is not worth our while to stop for an inquiry.
Nothing, indeed, is more directly antagonistic to real self-
government than inorganic universal suffrage spreading over
a wide dominion. I would, also allude once more to the fact
that universal suffrage is, after all, a modus, and not the
essence. If, however, it leads to the opposite of self-govern-
ment, we have no more right to call it "the republic," nor
to consider it a form of liberty, than those ancient Germans
had a right to be proud of their liberty, whom unsuccessful
gaming had led into slavery, if Tacitus reports the truth.
According to the French writer, the Roman republic might
be said to have continued under the Caesars, who were elected
by the praetorians, and an elective monarchy would present
itself as an acceptable government, while, in reality, it is one
of the worst. For it possesses nearly all the evils inherent
m the monarchical government, without its advantages, and
all the disadvantages of a republic, vastly increased, without
its advantages. History, I think, fully bears us out in this
opinion, notwithstanding one authority the only one of weight
I can remember to the contrary. 1
1 Lord Brougham, in his Political Philosophy, speaks in terms of high
praise of the elective government of the former Germanic empire. Native
and contemporary writers have not done so. It was only after the ex-
pulsion of the French, and when the German people instinctively longed
for German unity and dignity, that, at one time, a poetic longing for the
return of the medieval empire was expressed by some. If there be any
German left who still desires a return to the elective empire, he must be
of a very retrospective character.
CHAPTER XXX.
INSTITUTIONAL GOVERNMENT THE ONLY GOVERNMENT WHICH
PREVENTS THE GROWTH OF TOO MUCH POWER. LIBERTY,
WEALTH AND LONGEVITY OF STATES.
UNIVERSAL suffrage is power sweeping, real power so
vast, that even its semblance bears down everything before it.
Uninstitutional universal suffrage may be fittingly said to turn
the whole popular power and national sovereignty the self-
sufficient source of all derivative power into an executive,
and thus fearfully to confound sovereignty with absolute power,
absolutism with liberty.
Yet the idea of all government implies power, while that
of liberty implies check and protection. It is the necessary
harmony between these two requisites of all public vitality
and civil progress which constitutes the difficulty of establish-
ing and maintaining liberty a difficulty far greater than that
which a master-mind has declared the greatest, namely, the
founding of a new government. 1
1 Machiavelli tanto nomini nullum par elogiura says in his Prince,
"But in the new government lies the greatest difficulty." This depends
upon circumstances. He undoubtedly had in mind the difficulty of
uniting Italy, or rather of eliminating so many governments and esta-
blishing one Italian state. For. there has been no noble Italian, since
the times when Dante called his own Italy, Di dolor ostello. that does not
yearn for the union of his noble land, and look for the realization of his
hopes as fervently as he believes in a God. Machiavelli was one of the
foremost among these true Italians. But he had not lived through our
times. There are times when the people throw themselves into the arms
of any one that possibly may save them from impending or imaginary
shipwreck, or promises to do so. Wearied people will take a stone for a
pillow, and no persons deceive themselves so readily as the panic-stricken.
On such occasions it is easy to establish a new government, especially if
(364)
ON CIVIL LIBERTY. 365
Power is necessary; an executive cannot be dispensed with;
yet all power has a tendency to increase, and to clear away
opposition. It would not be power if it had not this tendency.
How then is liberty to be preserved ? A new power may be
created to check the first, like the Roman tribune; but the
newly created power is power, and how is this in turn to be
checked? Erecting one tier of power over the other affords
no remedy. The chief power may thus be made to change its
name or place ; but the power with all its attributes is there.
Nor will it be supposed that salvation can be found in the
mere veto, however multiplied. For the veto, although ap-
pearing negative with reference to that which is vetoed, never-
theless is power in itself, and to rest civil liberty upon a sys-
tem of mere vetoes would indeed be expecting life, action,
growth, and that which is positive, from a system of nega-
tivism. A government without power and inherent strength
is like aught else without power, useless for action. Yet action
is the object of all government. The single Polish nobleman
who possessed the rakosh or veto had a very positive but a
very injurious power. It was the pervading idea, in the mid-
dle ages, to protect by the requisition of unanimity of votes
on all important questions. But, on the one hand, this is the
principle which belonged to the disjunctive state of the middle
ages, not to our broad national liberty; and, on the other
hand, unanimity does not of itself insure protection or liberty.
Tyranny or corruption has often been unanimous.
The only way of meeting the difficulty is to prevent the
overbearing growth of any power. When grown, it is too
late ; and this cannot be done by putting class against class,
or interest against interest. One of these must be stronger
than the other, and become the absorbing one. Nor is the
problem we have to solve, discord. It is harmony, peace,
cumbersome conscience is set aside. The reverse of Machiavelli's dictum
then takes place, and the greatest difficulty lies in maintaining a govern-
ment. This applies even to administrations and ministries. All is
pleasant, sailing at first. A new power charms like a rising sun ; but
the heat of noon follows upon the morning.
366 ON CIVIL LIBERTY
united yet organic action. History or speculation points to
no other solution of this high problem of man, than a well-
grounded and ramified system of institutions, checking and
modifying one another, strong and self-ruling, with a power
limited by the very principle of self-government within each,
yet all united and working toward one common end, thus pro-
ducing a general government of a co-operative character, and
serving in many cases in which, without institutions, interests
would jar with interests, as friction rollers do in machinery.
The institution is strong within its bounds, yet not feared,
because necessarily bounded in its action. What can be more
powerful than the king's bench in England, in each case in
which it acts within its own limits. Now older than five hun-
dred years, it has repeatedly stood up against parliament with
success. Yet no one fears that its power will invade that of
other institutions ; nor did the people of the state of New York
apprehend that the court of appeals might become an invasive
power, when in its own legitimate and efficient way it lately
declared the Canal Enlargement Law, which had been passed
by a great majority, unconstitutional, and consequently null
and void.
Seeking for liberty merely or chiefly in a vetitive power of
each class or circle, interest or corporation, upon the rest,
as has been often proposed, after each modern revolution, 1
would simply amount to dismembering, instead of construct-
ing. It would produce a multitudinous antagonism, instead
of a vital organism, and it would be falling back into the
medieval state of narrow chartered independencies. We can-
not hope for liberty in a pervading negation, but must find
it in comprehensive action. All that is good or great is crea-
tive and positive. Negation cannot stand for itself, or impart
life. But that negation which is necessary to check and re-
frain is found in the self-government of many and vigorous
institutions, as they also are the only efficient preventives of
1 Harris, in his Oceana, St. Just, in the first French revolution, and
many former and recent writers might be mentioned,
AND SELF-GOVERNMENT. 367
the undue growth of power. If they are not always able to
hinder it, man has no better preventive. When in the seven-
teenth century, the Danes threw themselves into the power of
the king, making him absolute, in order to protect themselves
against baronial oppression, they necessarily created a power
which in turn became oppressive. The English, on the con-
trary, broke the power of their barons, not by raising the
king, but by increasing self-government.
We find, among the characteristic distinctions between
modern history and ancient, 1 the longevity of modern states,
contemporaneous progress of wealth or culture and civil
liberty, and the national state as contradistinguished from the
ancient city-state, the only state of antiquity in which liberty
existed. These are not merely facts which happen to pre-
sent themselves to the historian, but they are conditions upon
1 These differences between antiquity and modern times, all of which
are more or less connected with Christianity and the institution, are :
1. That in antiquity only one nation flourished at a time. The
course of history, therefore, flows in a narrow channel, and the historian
can easily arrange universal ancient history. In modern periods, many
nations flourish at the same time, and their history resembles the broad
Atlantic, on which they all freely meet.
2. Ancient states are short-lived ; modern states have a far greater
tenacity of life.
3. Ancient states, when once declining, were irretrievably lost. Their
history is that of a rising curve, with its maximum and declension. Mo-
dern states have frequently shown a recuperative power. Compare pre-
sent England with that of Charles II., France as it is with the times of
Louis XV.
4. Ancient liberty and wealth were incompatible, at least for any
length of time ; modern nations may grow freer while they are growing
wealthy.
5. Ancient liberty dwelt in city-states only ; modern liberty requires
enlarged societies nations.
6. Ancient liberty demanded disregard of individual liberty; modern
liberty is founded upon it.
7. The ancients had no international law. (Nor have the Asiatics
now. The incipiency of international law is, indeed, visible with all
tribes, for they are men. The Romans sent heralds to declare war, and
the Greek, advised to poison his arrows, declines doing so, " for," Homer
makes him say, " I fear the gods will punish me.")
368 ON CIVIL LIBERTY
which it is the modern problem to develop liberty, because
they are requisites for modern civilization, and civilization is
the comprehensive aim of all humanity.
We must have national states (and not city-states ;) we must
have national broadcast liberty (and not narrow chartered
liberty;) we must have increasing wealth, for civilization is
expensive; we must have liberty, and our states must endure
long, to perform their great duties. All this can be effected
by institutional liberty alone. It is neither affirmed that lon-
gevity alone is the object, nor that it can be obtained by in-
stitutions alone. Russia, peculiarly uninstitutional, because it
unites Asiatic despotism with European bureaucracy, has lasted
through long periods, even though we may consider the late
celebration of its millennial existence as a great official license.
All we maintain here is, that longevity, together with pro-
gressive liberty, is obtainable only by institutional liberty.
England, now really a thousand years old, presents the great
spectacle of an old nation advancing steadily in wealth and
liberty. She is far richer than she was a century ago, and
her government is of a far more popular cast. In ancient
times, it was adopted as an axiom that liberty and wealth are
incompatible. Modern writers, down to a very recent period,
have followed the ancients. Declaimers frequently do so to
this day ; but they show that they do not comprehend modern
liberty and civilization. Modern in-door civilization, with all
her schools and charities and comforts of the masses, is incal-
culably dearer than ancient out-door civilization. Modern
civilization requires immense production ; it is highly expen-
sive. Yet our liberty needs civilization as a basis and a prop;
our progressive liberty requires progressive civilization, con-
sequently progressive wealth not, indeed, enormous riches in
the hands of a few. Antiquity knew, and Asia possesses to
this day hoarded treasures in greater number than modern
Europe has ever known them. 1 We stand in need of immea-
1 Indeed, the enormous treasures occasionally met with in Asia are
indications of her comparative poverty.
AND SELF-GOVERNMENT. 369
surable wealth, but it is diffused, widely spread and widely
enjoyed wealth, necessary for widely diffused and widely en-
joyed culture.
To last long to last with liberty and wealth, is the great
problem to be solved by a modern state. Our destinies differ
from that of brief and brilliant Greece. Let us derive all
the benefit from Grecian culture and civilization from that
chosen nation, whose intellectuality and aesthetics, with chris-
tian morality, Roman legality and Teutonic individuality and
independence, form the main elements of the great phenome-
non we designate by the term modern civilization, without
adopting her evils and errors, even as we adopt her sculpture
without that religion whose very errors contributed to pro-
duce it.
24
CHAPTER XXXI.
INSECURITY OF UNINSTITCTIONAL GOVERNMENTS. UNORGAN-
IZED INARTICULATED POPULAR POWER.
THE insecurity of concentrated governments has been dis-
cussed in a previous part of this work. The same insecurity
exists in all governments that are not of a strongly institutional
character. Eastern despotism is exposed to the danger of
seraglio conspiracies, as much so as the centralized governments
of the European continent showed their insecurity in the year
1848. They tottered and many broke to pieces, although there
was, with very few exceptions, no ardent struggle, and nothing
that approached to a civil war. To an observer at a distance,
it almost appeared as if those governments could be shaken by
the loud huzzaing of a crowd. They have, indeed, recovered ;
but this may be for a time only ; nor will it be denied that the
lesson, even as it stands, is a pregnant one.
During all that time of angry turmoil, England and the
United States stood firm. The government of the latter coun-
try was exposed to rude shocks indeed, at the same period ;
but her institutional character protected her. England has had
her revolution ; every monarchy probably must pass through
such a period of violent change ere civil liberty can be largely
established and consciously enjoyed by the people ere govern-
ment and people fairly understand one another on the common
ground of liberty and self-government. But no fact seems
to be so striking in the revolution of England as this, that all
her institutions of an organic character, her jury, her common
law, her representative legislature, her local self-government,
her justice of the peace, her sheriif, her coroner all survived
domestic war and depotism, and, having done so, served as
(370)
ON CIVIL LIBERTY. 371
the basis of an enlarged liberty. The reason of this broad
fact cannot be that the English revolution did not occur at
a time of bold philosophical speculation which characterized
the age of the French revolution. The English religionists
of the seventeenth century were as bold, speculative reasoners
as the French philosophers, and England's religious fanatics
were quite as fierce enemies of private property and society
as the French political fanatics were. It was, in my opinion,
pre-eminently her institutional character in general, or the
whole system of institutions and the degree of self-govern-
ment contained in each, that saved each single institution,
and enabled England to weather the storm when she was
exposed to the additional great danger of a worthless general
government after the restoration. There is a tenacity of life
and a reproductive principle of vitality exhibited in the whole
seventeenth century of British history, that cannot be too
attentively examined by the candid statesmen of our family
of nations.
It may be objected to my remarks that Russia, too, has re-
mained untouched by the attempted revolutions of the year
1848, although her government is a very centralized one.
Russia has in some respects much of an Asiatic character, and
the succession of her monarchs is marked by an almost equal
number of palace conspiracies and imperial murders or im-
prisonments. 1 The people, on the other hand, have not yet
been affected by the political movements of our race. There
is in politics, as in all spheres of humanity, such a thing as
being below and being above an evil. Many persons that are
free from skepticism are not above it, but the dangerous ques-
tions have never yet presented themselves; and many nations
remain quiet, while others are torn by civil wars, not because
they have reached a settled state above revolution, but because
they have not yet arrived at the period of contending elements.
Russia may be said, in one respect at least, to furnish us
1 A London journal said some years ago, with great bitterness, yet
with truth : A Russian czar is a highly assassinative substance.
372 ON CIVIL LIBERTY
with the extreme opposite to self-government. "The service,"
that is, public service, or the being a servant of the imperial
government, has been raised in that country to a real culte, a
sort of official religion. Any infraction of justice, any hard-
ship, any complaint is passed over with a shrug of the shoulder
and the words "the service." The term Service in its present
Russian adaptation is the symbol for the most consistent abso-
lutism, the most passive bureaucracy, and a most automaton-
like government set in motion by the czar, and it is thus, as it
was said before, the extreme opposite to our self-government.
If concentrated governments are insecure, mere unorganized
and uninstitutional popular power is no less so, and neither
such power nor mere popular opposition to all government is
a guarantee of liberty. The first may be the reason why all
the Athenian political philosophers of mark looked from their
own state of things, during and after the Peloponnesian war,
with evident favor upon the Lacedaemonian government. La-
cedaemon was, indeed, no home for individual liberty ; but
they saw in Sparta permanent institutions, and without having
arrived at a perfectly clear distinction between an institutional
government and one of a fluctuating absolute market majority,
they may have perceived, more or less instinctively, that nei-
ther permanency nor safety is possible without an institutional
system. They must have observed that there was no individual
liberty in Sparta ; but her institutional character may have
struck them, and the contrast may have lent to that govern-
ment the appearance of substantial value which it did not
possess in reality. It seems otherwise difficult to explain why
the most reflecting should have preferred a Lacedsemon to an
Athens, even if we take into account the general view of the
ancients, that individuality must be sacrificed to the state a
view of which I have spoken at the beginning of this work.
As to the second position, that the guarantee of liberty can-
not be sought for in mere opposition to government or in a mere
negation of power, it is only necessary to reflect that in such
a state of things one of three evils must necessarily happen.
Either the people are united and succeed in enfeebling or de-
AND SELF-GOVERNMENT. 373
stroying the government, in which case again the new govern-
ment possesses the whole sweeping power, and of course is in
turn a negation of liberty; thus substituting absolutism for
absolutism. Or the people are not united, do not succeed,
and leave the government more powerful and despotic than
before. Or a state of affairs is brought about in which all
power is destroyed political asthenia. It is a state of poli-
tical disintegration, leading necessarily to general ruin, and
preparing the way for a new, generally a foreign power, which
then rears something fresh upon the ruins of the past fabrics
that are cemented with blood and tears.
There is no other way to escape from the appalling dilemma
than to unite the people and government into one living organ-
ism, and this can only be done by a widely ramified system of
sound institutions, instinct with self-government.
It is not maintained that history does not furnish us with
instances of national conditions in which nothing else remained
possible but a general rising against a government that had
become isolated from the people ; but nothing is gained if the
new state of things is not founded upon institutions. This
is, indeed, a difficult task ; at times it would seem impossible.
If so, the destruction of the whole is decreed; and its accom-
plishment adds another lesson to the many stored up in the
book of history, that those nations who neglect to provide for
institutions, and to allow them freely to grow, are walking the
path of political ruin.
We are now fully able to judge how utterly mistaken those
are who endeavor to press the opinion upon the people that
"there are but two principles between which civilized men
have to choose Divine Right and Democratic Might." The
one is as ungodly as the other. Neither is founded in justice;
neither admits of liberty ; both rest on the principle of abso-
lutism. Both are theories fabricated by despotism, false in
logic, unhallowed in practice, and ruinous in their progress.
Allusion has been made before to the common mistake of
those men who are not bred in civil liberty, and are unacquainted
with the appliances of self-government, that they believe popu-
374 ON CIVIL LIBERTY
lar power alone, uniform, sweeping and inorganic, constitutes
liberty, or is all that is necessary to insure it. It is doubtless
this kind of popular power which is generally called demo-
cracy in France and other countries of the continent. It
confounds, as we have seen, things entirely distinct in their
nature. Power is not liberty. Power is necessary for pro-
tection, and liberty consists in a great measure in the protec-
tion of certain rights and certain institutions ; nevertheless,
power is not liberty, and because it is power it requires
limitation, or, as I have stated, it is necessary to prevent the
generation of dangerous power. Of all power, however,
popular power, if by this term we designate the uninstitu-
tional sway of the multitude, is at once the most direct, because
not borrowed nor theoretical, and the most deceptive, because,
in reality, it is necessarily led or handled by a few or by one.
The ancients knew this perfectly well, and repeatedly treated of
the fact ; but it is not essential that the agora, the bodily assem-
bled multitude, have unlimited and uninstitutional power. The
same defects exist and the same results are produced where, so to
speak, the market extends over a whole country, and where all
liberty is believed to consist in one solitary formula universal
suffrage. Many effects of the latter are, indeed, more serious. 1
No evolution of public opinion, no debate, no gradual for-
mation takes place. Some few prepare the measures, and Yes
or No is all that can be asked or voted.
Whenever we speak of the power of the people, in an un-
organized state, we cannot mean anything else but the power
of the majority ; and where liberty is believed to consist in the
unlimited power of the people, the inevitable practical result
1 Nowhere, I believe, can the views of a large class of Frenchmen on
this subject, be found more distinctly enounced, than in the different
works of Mr. Louis Blanc. They are many, and, in my opinion, as may
be supposed, often very visionary ; but Mr. Blanc is the spirited repre-
sentative of that French school which believes that liberty is power, that
the ouvriers are the people, that wealth consists in the largest possible
amount of currency, and money is a deception, and that communism is
the most perfect political phase of humanity.
AND SELF-GOVERNMENT. 375
is neither more nor less than the absolutism of the majority
and the total want of protection of the minority.
As, however, this uninstitutional multitude has no organism,
it is, as I have stated, necessarily led by a few or one, and thus
we meet in history with the invariable result, that virtually
one man rules where absolute power of the people is believed
to exist. After a short interval, that one person openly as-
sumes all power, sometimes observing certain forms by which
the power of the people is believed to be transferred to him.
The people have already been familiar with the idea of abso-
lutism they have been accustomed to believe that, wherever
the public power resides, it is absolute and complete, so that it
does not appear strange to them that the new monarch should
possess the unlimited power which actually resided in the peo-
ple or was considered to have belonged to them. There is
but one step from the "peuple tout-puissant" if, indeed, it
amounts to a step, to an emperor tout-puissant. 1
It is a notable fact which, so far as I know history, has no
important exception, that in all times of civil commotion in
which two vast parties are arrayed against each other, the
anti-institutional masses, which are erroneously yet generally
called the people, are monarchical, or in favor of trusting
power into the hands of one man. All dictators have become
1 This, it will be observed, is very different from the English maxim,
the parliament is omnipotent. Unguarded and extravagant as it is, it
only means that parliament has the supreme power. But parliament
itself is a vast institution, and part and parcel of a still vaster institu-
tional system, which is pervaded by the principle of self-government.
Parliament has often found that it is not omnipotent when it has at-
tempted to break a lance with the common law. It is as unguarded a
maxim as that the king can do no wrong, which is true only in a limiting
sense, namely, that because he can do no wrong, some one else must be
answerable for every act of his. Besides, there is the marginal note of
James II. appended to this maxim, which never has been understood to
mean what the ancient French maxim meant: In the presence of the
king, the laws are silent; or what was meant by the famous "bed of
justice," namely, that the personal presence of the monarch silenced all
opposition, and was sufficient to ordain anything he pleased.
376 ON CIVIL LIBERTY
such by popular power, if the commotion tended to a general
change of government. It was the case in Rome when Caesar
ruled. The party in the Netherlands which clamored for the
return of the Stadtholder against that great citizen De Witt,
and was bent on giving the largest extent of hereditary power
to the house of Orange, was the popular party. Cromwell
was mainly supported by the anti-institutional army and its
adherents. We may go farther. The rise of the modern prin-
cipate, that is, the vast increase of the power of the prince
and the breaking down of the baronial power, was everywhere
effected by the help of the people. We have not here to in-
quire, whether in many of these struggles the people did not
consciously or instinctively support the prince or leader
against his opponents, because the ancient institutions had be-
come oppressive. At present, it is the fact alone which we
have to consider.
Probably it was this fact, together with some other reasons,
which caused Mr. Proudhon, the socialist, to utter the remark-
able sentence that "no one is less democratic than the people."
The fact is certain that, merely because supreme power has
been given by the people, or is pretended to have been con-
ferred by the people, liberty is far from being insured. On the
contrary, inasmuch as this theory rests on the theory of popu-
lar absolutism, it is invariably hostile to liberty, and, gene-
rally, forms the foundation of the most stringent and odious
despotism. To use the words of Burke : " Law and arbitrary
power are in eternal enmity. . . . It is a contradiction in
terms, it is blasphemy in religion, it is wickedness in politics,
to say that any man can have arbitrary power. . . We may
bite our chains if we will ; but we shall be made to know our-
selves and be taught that man is born to be governed by law ;
and he that will substitute will in the place of it is an enemy
to God." 1
I add the words of one still greater, the elder Pitt, and be it
remembered that he uttered them when he was an old man.
1 Mr. Burke, in 1788.
AND SELF-GOVERNMENT. 377
"Power," said he, "-without right is the most detestable
object that can be offered to the human imagination ; it is not
only pernicious to those whom it subjects, but works its own
destruction. Res detestabilis et caduca. Under the pretence
of declaring law, the commons have made a law, a law for
their own case, and have united in the same persons the offices
of legislator, and party, and judge." 1 Frederic the Great of
Prussia, perceived this clearly, for he said " he could very
well understand how one man might feel a desire to make his
will the law of others, but .why thirty thousand or thirty
millions should submit to it he could not understand." This
is the saying of a monarch who probably knew or suspected as
little of an institutional self-government as any one, and who
continually complained of the power of parliament in chang-
ing ministers, when England was his ally. 2 But was he sin-
cere when he wrote those words ? Was he still in his period
of philosophic sentiment? Did he really not see why this
apparent transfer of power so often happens, or did he utter
them merely as something piquant ?
By whatever process this vast popular power is transferred
or pretended to be transferred for we must needs always add
this qualification is of no manner of importance with refer-
ence to liberty. Immolation brings death, though it should be
self-immolation, and of the two species of political slavery,
1 He spoke of Wilkes's expulsion.
2 Raumer gives the dispatches from Mitchell, the English minister
near the court of Frederic. The minister reports many complaints of
the king, of this sort. But Frederic is not the only one who thus com-
plained. General Walsh, that native Frenchman, who became minister
of Spain, did the same. See Coxe's Memoirs, mentioned before. So
when Russian statesmen desire to show the superiority of their govern-
ment, they never fail to dwell on the low position of an English minister,
inasmuch as he depends upon a parliamentary majority, or, as an English
minister expressed it, must be the minister of public opinion. See Mr.
Urquhart's Collection. I believe it will always be found that, where ab-
solute governments come in contact with those of freemen, the former
complain of the instability of the latter. They consider a change of
ministry a revolution.
378 ON CIVIL LIBERTY
that is probably the worst which boasts of having originated
from free self-submission, such as Hobbes believed to have
been the origin of all monarchy, and of which recent history
has furnished an apparent frightful instance.
Nothing is easier than to show to an American or English
reader that the origin of power has of itself no necessary con-
nection with liberty. What American would believe that a
particle of liberty were left him if his country were denuded of
every institution, federal or in the states, except of the presi-
dent of the whole, though he alone were left to be elected
every four years by the sweeping majority of the entire coun-
try, from New York to San Francisco ? Or what English-
man would continue to boast of self-government, if a civil
hurricane were to sweep from his country every institution,
common law and all, except parliament, as an "omnipotent"
body indeed ?
The opposite of what we have called institutional self-
government is that liberty which Rousseau conceived of, when,
in his Social Contract, he not only assigns all power to the
majority, and almost teaches what might be called a divine
right of the majority, but declares himself against all division.
He shows a bitter animosity to the representative system. He
seeks, unconsciously to himself, for a legitimate source of pub-
lic force, when he thinks he lays a foundation for liberty. In
this he may be said to be original, at least in the idea of the
permanent action of the social contract, or of the sovereignty
not only residing in the people, but continuing to act directly
and without checking institutions. For the rest, he only car-
ried out the old French idea of unity of power, of centraliza-
tion, which appeared to the French long before him, the sum-
mum bonum not only in politics, but in all other spheres.
The works of the great Bossuet show this pervading idea, in
the sphere of theology ; and numerous proofs have been given
in the course of this work, that the principle of uncompromis-
ing unity was distinctly acknowledged and almost idolized by
nearly all the leading statesmen of France from Richelieu,
through the first revolution, and continues to be so down to
AND SELF-GOVERNMENT. 379
the present day. 1 No one can understand the history of
France who does not remember the ardor for unconstitutional
unity of power, and what is intimately connected with it, the
idea that this all-pervading and uncompromising power must
do and provide for everything the extinction of self-reliance.
The socialists do not differ from the imperialists ; on the con-
trary, society is with them a unit in which the individual is
lost sight of, even in marriage and property.
Rousseau insists upon an inarticulated, unorganized, un-
institutional majority. It is a view which is shared by many
millions of people on the European continent, and has deeply
affected all the late and unsuccessful attempts at conquering
liberty. Rousseau wrote in a captivating style, and almost
always plausibly, very rarely profoundly, often with impas-
sioned fervor. Plausibility, however, generally indicates a
fallacy, in all the higher spheres of thought and action ; still
it is that which is popular with those who have had no expe-
rience to guide them ; and since the theory of Rousseau has
had so decided an influence in France, and since no one can
understand the recent history of our race without having
studied the Social Contract, 2 that theory, for the sake of
brevity, may be called Rousseauism.
1 One of the past statesmen of France, and renowned as a publicist,
said to me, in 1851, when we discoursed on the remarkable extinction of
former French royalty : " There is but one thing to which all Frenchmen
cling with enthusiasm, almost with fanaticism, and that is absolute unity."
Those statesmen who have not unconditionally joined this sentiment, such
as Mr. Guizot, are considered unnational.
2 The Contract Social was the bible of the most advanced convention
men. Robespierre read it daily, and the influence of that book can be
traced throughout the revolution. Its ideas, its simplicity, and its senti-
mentality had all their effects. Indeed, we may say that two books had
a peculiar influence in the French revolution, Rousseau's Social Contract
and Plutarch's laves, however signally they differ in character. The
translation of Plutarch by Amyot in the sixteenth century it was the
period of Les Cents Contre Un and subsequent ones, had a great effect
upon the ideas of a certain class of reflecting Frenchmen. We can trace
this down to the revolution, and during this struggle we find with a
380 ON CIVIL LIBERTY.
We return once more to that despotism which is founded upon
pre-existing popular absolutism. The processes by which the
transition is effected are various. The appointment may de-
ceptively remain in the hands of the majority, as was the case
when the president of the French republic was apparently
elected for ten years, after the second of December; or the
praetorians may appoint the Csesar ; or there may be apparent
or real acclamation for real or pretended services ; or the
emperor may be appointed by auction, as in the case of the
emperor Didius ; or the process may be a mixed one. The
process is of no importance ; the facts are simply these the
power thus acquired is despotic, and hostile to self-government ;
the power is claimed on the ground of absolute popular power;
and it becomes the more uncompromising because it is claimed
on the ground of popular power.
number of the leading men, a turn of ideas, a conception of republicanism
formed upon their view of antiquity, and a stoicism which may be fitly
called Plutarchism. It is an element in that great event. It showed
itself especially with the Brissotists, the Girondists, and noble Charlotte
Corday was imbued with it. A very instructive paper might be written
on the influence of Plutarch on the political sentiment of the French,
ever since that first translation.
CHAPTER XXXII.
IMPERATORIAL SOVEREIGNTY.
THE Caesars of the first centuries claimed their power
as bestowed upon them by the people, and went even so far
as to assume the praetorians, with an accommodating and
intimidated senate, as the representatives, for the time, of
the people. The Caesars never rested their power upon
divine right, nor did they boldly adopt the Asiatic principle in
all its nakedness, that power the sword, the bow-string, the
mere possession of power is the only foundation of the right
to wield it. The majestas populi had been transferred to the
emperor. 1 Such was their theory. Julius, the first of the
Caesars, made himself sole ruler by the popular element,
against the institutions of the country.
If it be observed here that these institutions had become
effete, that the Roman city-government was impracticable for
an extensive empire, and that the civil wars had proved how
incompatible the institutions of Rome had become with the
1 The idea of the populus vanished only at a late period from the
Roman mind ; that of liberty had passed away long before. Fronto,
in a letter to Marcus Aurelius (when the prince was Czesar,) mentions
the applause which he had received from the audience for some oration
which he had delivered, and then continues thus : " Quorsum hoc
retuli ? uti te, Domine, ita compares, ubi quid in coetu hominum recita-
bis, ut scias auribus serviendum : plane non ubique et omni modo, at-
tamen nonnunquam et aliquando. Quod ubi facies, simile facere te
reputato, atque illud facitis, ubi eos qui bestias strenue interfecerint,
populo postitlante ornatis aut manuraittitis, noccntes ctiam homines aut
scelere damnatos, sed populo postulante conceditis. Ubique igitur
populus dominatur et prcepollet. Igitur ut populo gratum ent, ita
facies atque ita dices." Epist. ad Marc. Cses., lib. i. epist. 1.
(381)
382 ON CIVIL LIBERTY
actual state of the people, it will be allowed not to consider
the common fact that governments or leaders first do every-
thing to corrupt the people or plunge them into civil wars, and
then, "taking advantage of their own wrong," use the cor-
ruption and bloodshed as a proof of the necessity to upset the
government 1 it will be allowed, I say, that at any rate Caesar
did not establish liberty, or claim to be the leader of a free
state, and that he made his appearance at the close of a long
period of freedom, marking the beginning of the most fear-
ful decadence which stands on record ; and that, unfortu-
nately, the rulers vested with this imperatorial sovereignty 2
never prepare a better state of things with reference to civil
dignity and healthful self-government. They may establish
peace and police ; they may silence civil war, but they also
destroy those germs from which liberty might sprout forth
1 Not unlike the conduct of the powers surrounding Poland, before
they had sufficiently prepared her partition. The government of Poland
was certainly a very defective one, but it was the climax of historical
iniquity in Russia, Austria and Prussia to declare, after having used
every sinister means to embroil the Polish affairs, and stir up faction,
that the Poles were unfit to be a nation, and as neighbors too trouble-
some.
2 The idea which I have to express, would have prompted me, and
the Latin word Cacsareus would have authorized me, to use the term
Cajsarean Sovereignty. It is unquestionably preferable to imperatorial
sovereignty, except that the English term Caesarean has acquired a
peculiar and distinct meaning, which might even have suggested the
idea of a mordant pun. I have, therefore, given up this term, although
I had always used it in my lectures. It will be observed that I use the
term sovereignty in this case with a meaning which corresponds to the
sense in which the word sovereign continues to be used by many, desig-
nating a crowned ruler. I hope no reader will consider me so ignorant
of history and political philosophy, as to think me capable of believ-
ing in the real sovereignty of an individual. If sovereignty means the
self-sufficient primordial power of society, from which all other powers
are derived and unless it mean this we do not stand in need of the
term it is clear that no individual ever possessed or can possess it.
On the other hand, it is not to be confounded with absolute power. My
views on this important subject have been given at length in my Poli-
tical Ethics, as I have said before.
AND SELF-GOVERNMENT. 383
at a future period. However long Napoleon I. might have
reigned, his whole path must have led him farther astray from
that of an Alfred, who allowed self-government to take root,
and respected it where he found it. We can never arrive
at the top of a steeple by descending deeper into a pit.
Whatever Caesar's greatness may have been, he did not,
at any rate, usher in a new and prosperous era, either of
liberty or popular grandeur. What is the Roman empire
after Caesar ? Count the good rulers, and weigh them against
the unutterable wretchedness resulting from the worst of all
combinations of lust of power, voluptuousness, avarice, and
cruelty and forming a stream of increasing demoralization,
which gradually swept down in its course everything noble
that had remained of better times.
The Roman empire did, undoubtedly, much good, by spread-
ing institutions which adhered to it in spite of itself, as seeds
adhere to birds, and are carried to great distances ; but it did
this in spite, and not in consequence of the imperatorial sove-
reignty.
How, in view of all these facts of Roman history and of
Napoleon I., the French have been able once more boastfully
to return to the forms and principles of imperatorial sove-
reignty, and once more to confound an apparently voluntary
divestment of all freedom with liberty, is difficult to be un-
derstood by any one who is accustomed to self-government.
Whatever allowance we may make on the ground of vanity,
both because it may please the ignorant to be called upon to
vote yes or wo, regarding an imperial crown, and because it
may please them more to have an imperial government than one
that has no such sounding name; whatever may be ascribed
to military recollections and, unfortunately, in history peo-
ple only see prominent facts, as at a distance we see only the
steeples of a town, and not the dark lanes and crowding misery
which may be around them ; whatever allowance may be made,
and however well we may know that the whole could never
have been effected without a wide-spread centralized govern-
384 ON CIVIL LIBERTY
inent and an enormous army 1 it still remains surprising to us
that the French, or at least those who now govern, please
themselves in the imperatorial forms of Rome, and in present-
ing popular absolutism as a desirable phase of democracy. As
though Tacitus had written like a contented man, and not
with despair in his breast, breathed into many lines of his
melancholy annals !
Yet so it is. Mr. Troplong, now president of the senate,
said on a solemn occasion, after the sanguinary second of
December, when he was descanting on the services rendered
by Louis Napoleon: "The Roman democracy conquered in
Caesar and in Augustus the era of its tardy avenement " z If
imperatorial sovereignty were to be the lasting destiny of
France, and not a phase, French history would consist of a
long royal absolutism ; a short struggle for liberty, with the
long fag-end of Roman history the avenement of democracy
1 See paper on Elections, in the appendix.
2 A sepulchral inscription in honor of Massaniello had an allusion
conceived in a similar spirit. I give it entire, as it probably will be in-
teresting to many readers.
Eulogium
Thomce Aniello de Amalfio
Cetario mox Cesareo
Honore conspicuo
qui
Oppressa patria Parthenope
cum
Suppressions nobilium
Combustione mobilium
Purgations exulum
Extinctione vectigalium
Proregis injustitia
Liberata
Ab his qui liberavit est peringrale occisus
jEtatis suce anno vigesimo scptimo, imperil vero
Decennio
Mortuus non minus quam vivus
Triumphavit
Tantce rei populus Neapolitans tanquam immemor
Posuit.
AND SELF-GOVERNMENT. 385
in its own destroyer, the imperatorial sovereignty, but -without
the long period of Roman republicanism.
The same gentleman drew up the report of the senatorial
committee to which had been referred the subject, whether the
people should be called upon to vote Yes or No on the ques-
tion : Shall the republic be changed into an empire ? This
extraordinary report possesses historical importance, because
it is a document containing the opinion of such a body as the
French senate, and the political creed of the ruling party. I
shall give it, therefore, a place in the appendix. It contains
the same views mentioned above, but spread over a considera-
ble space, occasionally with surprising untenableness and in-
consistency.
So little, indeed, has imperatorial sovereignty to do with
liberty, that we find even the earliest Asiatics ascribing the
origin of their despotic power to unanimous election. I do not
allude only to the case of Daioces, related by Herodotus, but
to the mythological books of Asiatic nations. The following
extract from the Mongolian cosmogony, whose mythos extends
over a vast part of the East, is so curious and so striking an
instance of "the avenement of democracy" though not a
tardy one and so clear a conception of imperatorial sove-
reignty without a suspicion of liberty, as a matter of course,
since the whole refers to Asia, that the reader will not be dis-
satisfied with the extract.
" At this time (that is, after evil had made its appear-
ance on earth) a living being appeared of great beauty and
excellent aspect, and of a candid and honest soul and clear
intellect. This being confirmed the righteous possessors in
their property, and obliged the unrighteous possessors to give
up what they had unjustly acquired. Thereupon the fields
were distributed according to equal measure, and to every one
was done even justice. Then all elected him for their chief,
and yielded allegiance to him with these words : We elect thee
for our chief, and we will never trespass thy ordinances. On
account of this unanimous election, he is called in the Indian
language Ma-ha-Ssamati-Radsha ; in Thibetian, Mangboi-b
25
386 ON CIVIL LIBERTY
Kurbai-r Gjabbo ; and in Mongolian, Olana-ergukdeksen Cha-
gran (the many-elected Monarch.)" 1
"In the name of the people," are the words with which
commenced the first decree of Louis Napoleon, issued after
the second of December, when he had made himself master of
France, and in which he called upon all the French to state
whether he should have unlimited power for ten years. If it
was not their will, the decree said, there was no necessity of
violence, for in that case he would resign his power. This
was naive. But theories or words proclaimed before the full
assumption of imperatorial sovereignty are of as little import-
ance as after it. Where liberty is not a fact and a daily
recurring reality, it is not liberty. The word Libertas occurs
frequently on the coins of Nero, and still more often the sen-
timental words, Fides Mutua, Liberalitas Augusta, Felicitas
Publica.
Why, it may still be asked, did the Caesars recur to the peo-
ple as the source of their power, and why did the civilians say
that the emperor was legislator, and power-holder, inasmuch
as the majestas of the Roman people, who had been legislators
and power-holders, had been conferred upon him ? Because,
partly, the first Caesars, at any rate the very first, had ac-
tually ascended the steps of power with the assistance of
some popular element, cheered on somewhat like a diademed
tribune ; because there was and still is no other actual source
of power imaginable than the people, whether they positively
give it, or merely acquiesce 2 in the imperatorial power, and
because, as to the historical fact by which power in any given
case is acquired, we must never forget that the ethical element
1 The History of the East Mongols, by Ssanang Ssetsen Changsaidshi,
translated into German, by I. J. Schmidt. I owe this interesting pas-
sage to my friend, the Rev. Professor J. W. Miles, who directed my
attention to the work.
2 As the words stand above, I own, they may be variously interpreted;
but it would evidently lead me too far, were I to attempt a full state-
ment of the sense in which I take them, which indeed I have done at
length in my Political Ethics.
AND SELF-GOVERNMENT. 387
and that of intellectual consistency are so inbred in man that,
wherever humanity is developed, a constant desire is observ-
able to make actions, however immoral or inconsistent, at
least theoretically agree with them. No proclamation of war
has ever avowed, I believe, that war was simply undertaken
because he who issued the proclamation had the power and
meant to use it fas aut nefas. 1 Even Attila called himself
the scourge of God.
No matter what the violence of facts has been, however
rudely the shocks of events have succeeded one another, the
first thing that men do after these events have taken place. is
invariably to bring them into some theoretical consistency,
and to attempt to give some reasonable account of them.
This is the intellectual demand ever active in man. The other,
equally active, is the ethical demand. No man, though he com-
manded innumerable legions, could stand up before a people
and say: "I owe my crown to the murder of my mother, to
the madness of the people, or to slavish place-men." To
appear merely respectable in an intellectual and ethical point
of view, requires some theoretical decorum. The purer the
generally acknowledged code of morality, or the prevailing
religion is, or the higher the general mental system which
prevails at the time, the more assiduous are also those who lead
the public events, to establish, however hypocritically, this
apparent agreement between their acts and theory, as well as
morals. It is a tribute, though impure, paid to truth and
morality.
1 The reader sufficiently acquainted with history will remember that
the consul Manlius, when the Gallatians, a people in Asia Minor, urged
that they had given no offence to the Romans, answered that they were
a profligate people deserving punishment, and that some of their ances-
tors had, centuries before, plundered the temple of Delphi. Justin, the
historian, says that the Romans assisted the Acarnanians against the
Aetolians because the former had joined in the Trojan war, a thousand
years before. But this principle does not act, even to a degree of
caricature, in politics only. What cruelties have not been committed
Pro majore Dei gloria !
CHAPTER XXXIII.
IMPERATORIAL SOVEREIGNTY, CONTINUED. ITS ORIGIN AND
CHARACTER EXAMINED.
IT has been said in the preceding pages that imperatorial
sovereignty must be always the most stringent absolutism, 1
especially when it rests theoretically on election by the whole
people, and that the transition from an uninstitutional popular
absolutism to the imperatorial sovereignty is easy and natural.
At the time of the so-called French republic of 1848, it was
a common way of expressing the idea then prevailing, to call
the people le peuple-roi (the king-people,) and an advocate,
defending certain persons before the high court of justiciary
sitting at Versailles in 1849, for having invaded the chamber
of representatives, and consequently having violated the con-
stitution, used this remarkable expression, " the people" (con-
founding of course a set of people, a gathering of a part of
the inhabitants of a single city, with the people) "never vio-
late the constitution." 2
Where such ideas prevail, the question is not about a change
of ideas, but simply about the lodgement of power. The
minds and souls are already thoroughly familiarized with the
idea of absolutism, and destitute of the idea of self-govern-
ment. This is also one of the reasons why there is so much
similarity between monarchical absolutism, such for instance
1 That absolutism and imperatorial sovereignty go hand in hand, was
neatly acknowledged by an inscription over the sub-prefecture of Dun-
kerque, when the imperial couple passed it, in 1855. It was to this effect :
A l'he>itier de Napol6on, la ville de Louis XIV.
2 Mr. Michel, on the 10th of November. I quote from the French
papers, which gave detailed reports. Mr. Michel, to judge from his own
speech, seems to have been the oldest of the defending advocates.
(388)
ON CIVIL LIBERTY. 389
as we see in Russia, and communism, as it was preached in
France ; and it explains why absolutism, having made rapid
strides under the Bourbons before the first revolution, has
terminated every successive revolution with a still more compres-
sive absolutism and centralism, except indeed the revolution of
1830. This revolution was undertaken to defend parliamen-
tary government, and may be justly called a counter-revolu-
tion on the part of the people against a revolution attempted
and partially carried by the government. It explains farther
how Louis Napoleon 'after the second of December, and later
when he desired to place the crown of uncompromising abso-
lutism on his head, could appeal to the universal suffrage of all
France he that had previously curtailed it, with the assist-
ance of the chamber of representatives. This phenomenon,
however, must be explained also by the system of centralism,
which prevails in France. I shall offer a few remarks on this
topic after having treated of some more details appertaining
to the subject immediately in hand.
The idea of the peuple-roi (it would perhaps have been more
correct to say peuple-czar) also tends to explain the other-
wise inconceivable hatred against the bourgeoisie, by which the
French understand the aggregate of those citizens who inhabit
towns and live upon a small amount of property or by traffic.
The communists and the French so-called democrats entertained
a real hatred against the bourgeoisie ; the proclamations, occa-
sionally issued by them, openly avowed it ; and the government,
when it desired to establish unconditional absolutism in form
as well as principle, fanned this hatred. Yet no nation can
exist without this essential element of society. In reading
the details of French history of the year 1848 and the next
succeeding years, the idea is forced upon our mind that a vast
multitude of the French were bent on establishing a real and
unconditional aristocracy of the ouvrier the workman. 1
1 Tliis error broke forth into full blaze at the indicated time, but it
had of course been long smouldering, and, as is customary, had found
some fuel even in our country. In the year 1841, during the pre-
sidential canvass, a gentleman who has since become the editor of a
390 ON CIVIL LIBERTY
If the irnperatorial sovereignty is founded upon an actual
process of election, whether this consist in a mere form or not,
it bears down all opposition, nay all dissent, however lawful
it may be, by a reference to the source of its power. It says
" I am the people, and whoever dissents from me is an enemj
to the people. Vox Populi vox Dei. My divine right is the
voice of God, which spake in the voice of the people. The
government is-the true representative of the people." 1
catholic periodical, and has probably changed, his views published a
pamphlet in which he attacked individual property, and fell into the
same error which is spoken of in the text above.
The author of the pamphlet, which was very widely distributed, found
it of course impossible to draw the line between the workmen and those
who are not " working," and I recollect that he did not even allow the
superintendent of a factory to be a workman. I have treated of these
subjects in detail in my Essays on Labor and Property, and believe that
a Humboldt is a harder working " working man," not indeed than the
poor weaver who allows himself but five hours rest in the whole twenty-
four, but certainly a far harder working man than any of those physi-
cally employed persons who want to make their class a privileged order.
The fact is simply this, that there is no toiling man, however laboriously
employed in a physical way, that does not guide his efforts by an exer-
tion of the brain, and no mentally employed man that is not obliged to
accompany his labor by some, frequently by much physical exertion. To
draw an exact line between the two, for political purposes, is impossible.
All attempts at doing so are mischievous. The hands and the brain
rule the world. All labor is manual and cerebral, but the proportion
in which the elements combine is infinite. So soon as no cerebral labor
is necessary, we substitute the animal or the machine. In reading some
socialist works, one would almost suppose that men had returned to
some worship of the animal element, raising pure physical exertion
above all other human endeavors. Humanity does not present itself
more respectably than in the industrious and intelligent artisan, but
every artisan justly strives to reach that position in which he works
more by the intellect than by physical exertion. He strives to be an
employer. The type of a self-dependent and striving American artisan
is a really noble type. The author hopes to count many an American
operative among his readers ; and if he be not deceived, he takes this
opportunity of declaring that he believes he too has a very fair title to be
called a hard-working man, without claiming any peculiar civil privileges
on that account.
1 The idea that God speaks through the voice of the people, familiar
AND SELF-GOVERNMENT. 391
The eight millions of votes, more or less, which elevated the
present French emperor, first to the decennial presidency and
then to the imperial throne, are a ready answer to all objec-
tions. If private property is confiscated by a decree ; if per-
sons are deported without trial ; if the jury trial is shorn of
its guarantees, the answer is always the same. The emperor
is the unlimited central force of the French democracy ; thus
the theory goes. He is the incarnation of the popular power,
and if any of the political bodies into which the imperatorial
power may have subdivided itself, like a Hindoo god, should
happen to indicate an opinion of its own, it is readily given to
understand that the government is in fact the people. Such
bodies cannot, of course, be called institutions ; for they are
devoid of independence and every element of self-government.
The president of the French legislative corps in 1853, found it
necessary, on the opening of the session, to assure his col-
leagues, in an official address, that their body was by no means
without some importance in the political system, as many
seemed to suppose.
The source of imperatorial power, however, is hardly ever
what it is pretended to be, because, if the people have any
power left, it is not likely that they will absolutely denude
themselves of it, surely not in any modern and advanced nation.
The question in these cases is not whether they love liberty,
but simply whether they love power and every one loves
power. On the one hand, we have to observe that no case
exists in history in which the question, whether imperatorial
power shall be conferred upon an individual, is put to the peo-
to the middle ages, is connected with the elections of ruder times by
general acclaim. It reminds us also of the Dieu le veut, at Clermont,
when Peter the Ilermit called on the chivalry and the people to take the
sign of the cross. And again it reminds us of the disastrous decrets
tl 'acclamation of the first French Revolution. That the government is
the true representative of the people, has been often asserted in recent
times in France, and Napoleon I., in one of his addresses, delivered in
the council of state, said: The government, too, is the representative of
the people. Miot de Melito, in his Memoirs.
392 ON CIVIL LIBERTY
pie, except after a successful conspiracy against the existing
powers or institutions, or a coup d'e'tat, if the term be pre-
ferred, on the part of the imperatorial candidate ; and, on the
other hand, a state of things in which so great a question is
actually left to the people is wholly unimaginable. There may
be a so-called interregnum during the conclave, when the car-
dinals elect a pope, but a country cannot be imagined in a
state of perfect interregnum while the question is deciding
whether a hereditary empire shall be established. It is idle
to feign believing that this is possible, most especially so
where the question is to be decided not by representatives,
but by universal suffrage, and that, too, in a country where
the executive power spreads over every inch of the territory,
and is characterized by the most consistent centralism. The
two last elections of Louis Napoleon prove what is here stated.
Ministers, prefects, bishops, were openly and officially in-
fluencing the elections ; not to speak of the fact that large
elections concerning persons in power, which allow to vote
only yes or no, have really little meaning, as the history of
France abundantly proves. 1 But how elections at present
are managed in France, even when the question is not so
comprehensive, may be seen from a circular addressed by
the minister, Mr. de Moray, 2 to the prefects, previous to the
elections for the first legislative corps. It is an official paper,
strikingly characteristic, and I shall give a place to a transla-
tion of it in the appendix. We ought to bear in mind that
one of the heaviest charges against Mr. de Polignac, when
tried for treason, was, that he had allowed Charles X. to in-
fluence the elections.
1 See the Paper on Elections, in the appendix.
2 Mr. de Moray is the frcrc adulttrin of Louis Xapolcon, on the
mother's side, Queen Hortensia. lie aided his half-brother very actively
in the overthrow of the republic, and the establishment of the empire.
Mr. de Morny lost the ministry nt the time when I,. Bonaparte despoiled
the Orleans family of their lawful property, and, it was believed, because
the minister could not in his conscience sanction an act at once so un-
lawful and ungrateful.
AND SELF-GOVERNMENT. 393
When such a vote is put to the people under circumstances
which have been indicated, the first question which presents
itself, is : And what if the vote turn out No ? Will the can-
didate, already at the head of the army, the executive, and of
every other branch ; whose initials are paraded everywhere,
and whose portrait is in the courts of justice, some of which
actually have styled themselves imperial, and who has been
addressed Sire ; who has an enormous civil list will he make
a polite bow, give the keys to some one else, and walk his
way? And to whom was he to give the government? The
question was not, as Mr. de Laroche-Jacquelin had proposed,
Shall A or B rule us ? Essentially this question would not
have been better ; but there would have been apparently some
sense in it. The question simply was : Shall B rule us ? Yes
or No. It is surprising that some persons can actually believe
reflecting people may thus be duped.
The Caesar always exists before the imperatorial govern-
ment is acknowledged and openly established. Whether the
praetorians or legions actually proclaim the Caesar or not, it is
always the army that makes him. A succeeding ballot is no-
thing more than a trimming belonging to more polished or
more timid periods, or it may be a tribute to that civilization
which does not allow armies to occupy the place they hold in
barbarous or relapsing times, at least not openly so.
First to assume the power and then to direct the people to
vote, whether they are satisfied with the act or not, leads
psychologically to a process similar to that often pursued by
Henry VIII., and according to which it became a common
saying: First clap a man into prison for treason, and you will
soon have abundance of testimony. It was the same in the
witch- trials.
The process of election becomes peculiarly unmeaning, be-
cause the power already assumed allows no discussion. There
is no free press. 1
1 When the question of the new imperial crown was before the people
of France, Count Chambord, the Bourbon prince who claims the crown
394 ON CIVIL LIBERTY
Although no reliance can be placed on wide-spread elec-
tions, whose sole object is to ratify the assumption of impera-
torial sovereignty, and when therefore it already dictatorially
controls all affairs, it is not asserted that the dictator may not
at times be supported by large masses, and possibly assume
the imperatorial sovereignty with the approbation of a ma-
jority. I have repeatedly acknowledged it ; but it is unques-
tionably true that generally in times of commotion, and espe-
cially in uninstitutional countries, minorities rule, for it is
minorities that actually contend. Yet, even where this is not
the case, the popularity of the Caesar does in no way affect the
question. Large, unarticulated masses are swayed by tempo-
rary opinions or passions, as much so as individuals, and it re-
quires but a certain skill to seize upon the proper moment to
receive their acclamation, if they are willing and consider
themselves authorized to give away by one sudden vote, all
power and liberty, not only for their own lifetime, but for
future generations. In the institutional government alone, sub-
stantial public opinion can be generated and brought to light.
It sometimes happens that arbitrary power or centralism
recommends itself to popular favor by showing that it intends
to substitute a democratic equality for oligarchic or oppressive,
unjust institutions, and the liberal principle may seem to be
on the side of the levelling ruler. This was doubtless the case
when in the sixteenth and seventeenth century the power of
the crown made itself independent on the continent of Europe.
Instead of transforming the institutions, or of substituting
new ones, the governments levelled them to the ground, and
that unhappy centralization was the consequence which now
draws every attempt at liberty back into its vortex. At other
times, monarchs or governments disguise their plans to destroy
of France on the principle of legitimacy, wrote a letter to his adherents,
exhorting them not to vote. The leading government papers stated at
the time that government would have permitted the publication of this
letter, had it not attacked the principle of the people's sovereignty. The
people were acknowledged sovereign, yet the government decides what
the sovereign may read !
AND SELF-GOVERNMENT. 395
liberty in the garb of liberty itself. Thus James II. endeavored
to break through the restraints of the constitution, or perhaps
ultimately to establish the catholic religion in England, by pro-
claiming liberty of conscience for all, against the established
church. Austria at one time urged measures, apparently liberal
for the peasants, against the Gallician nobles. In such cases,
governments are always sure to find numerous persons that
do not look beyond the single measure, nor to the means by
which it is carried out ; yet the legality and constitutionality
of these means are of great, and frequently of greater im-
portance than the measure itself. Even historians are fre-
quently captivated by the apparently liberal character of a
single measure, forgetting that the dykes of an institutional
government once being broken through, the whole country may
soon be flooded by an irresistible tide of arbitrary power.
We have a parallel in the criminal trial, in which the question
how we arrive at the truth is of equal importance with the
object of arriving at truth. Nullum bonum nisi bene.
On the other hand, all endeavors to throw more and more
unarticulated power into the hands of the primary masses,
to deprive a country more and more of a gradually evolv-
ing character; in one word, to introduce an ever-increasing
direct, unmodified popular power, amount to an abandonment
of self-government, and an approach to imperatorial sove-
reignty, whether there be actually a Caesar or not to popu-
lar absolutism, whether the absolutism remain for any length
of time in the hands of a sweeping majority, subject, of
course, to a skilful leader, as in Athens after the Pelopon-
nesian war, or whether it rapidly pass over into the hands
of a broadly named Csesar. Imperatorial sovereignty may
be at a certain period more plausible than the sovereignty
founded upon divine right, but they are both equally hostile
to self-government, and the only means to resist the inroads
of power is, under the guidance of providence and a liberty-
wedded people, the same means which in so many cases have
withstood the inroads of the barbarians, namely, the institu-
tion the self-sustaining and organic systems of laws.
CHAPTER XXXIV.
CENTRALIZATION. INFLUENCE OF CAPITAL CITIES.
WE have seen in how great a degree French centralism has
produced an incapacity for self-rule, according to one of the
most distinguished statesmen of France herself. This central-
ism, in conjunction with imperatorial sovereignty, has produced
some peculiar effects upon a nation so intelligent, ardent, and
wedded to system as the French are. Before I conclude
this treatise, therefore, I heg leave to offer a few remarks,
which naturally suggest themselves, in connection with cen-
tralism and imperatorial sovereignty; both so prominent at
this moment in France.
Centralism has given to Paris an importance which no capi-
tal possesses in any other country. The French themselves
often say Paris is France ; foreigners always say so ; and to
them as well as to those French people who desire to enjoy,
at one round, as much as possible of all that French civiliza-
tion produces, this is, doubtless, very agreeable and instruc-
tive. Paris is brilliant, as centralism frequently is; Paris
naturally flatters the vanity of the French ; Paris stands with
many people for France, because they see nothing of France
but Paris. Centralization appears most imposing in Paris in
the buildings, in demonstrations, in rapidity of execution, and
in an aesthetical point of view. Upon a close examination of
history, however, we shall find that it has been not only a
natural effect of centralism, but an object of all absolute rulers
over intelligent races, to beautify the capital and raise its
activity to the highest point. The effect is remarkable. The
government of King Jerome, of Westphalia now again prince
of France was one of the most ruinous that has ever existed,
(396)
ON CIVIL LIBERTY. 397
and yet long after the downfall of that ephemeral kingdom,
every disapproval of it was answered by a reference to the
embellishment of Cassel, the capital. 1
1 There are psychological processes which indicate suspicious inten-
tions the adoption of a new and scientifically sounding term for an old
and common offence, as Repudiation for declining to, pay what is due ;
and of mystifying; high sounding abstractions in statesmanship. The
latter is carried to a degree, in the following address of Napoleon, which
is rare even in France. Louis XIV., according to the present emperor
of the French, the great representative of French unity and glory, when
he had ruined France by the building of Versailles, warned, on his death-
bed, his successor to beware of wars and of building. There are so
many points of French politics tersely put in the speech of Napoleon III.,
when in September of 1857 he opened the Louvre, that its record may
be considered a historical document. We give it therefore entire.
The ceremony of opening the Louvre was simple but imposing. The
ministers, marshals and generals, the senators and great functionaries,
assembled in the hall of the Louvre. The emperor and empress arrived
at two o'clock with a vast retinue. The business began by the presen-
tation of an address to the emperor from M. Fould, briefly describing
the origin and completion of a work which, begun in 1852 and finished
in 1857, unites the Louvre and the Tuileries. The emperor next distri-
buted the legion of honor to the professional men who have distinguished
themselves during the erection of the building ; making some com-
manders, some simple knights. Having distributed all the honors, the
emperor delivered the following address :
" Gentlemen I congratulate myself, with you, on the completion of
the Louvre. I congratulate myself especially upon the causes which
have rendered it possible. In fact, it is order, restored stability, and the
ever-increasing prosperity of the country, which have enabled me to
complete this national work. I call it so because the governments which
have succeeded each other have made it a point to do something towards
the completion of the royal dwelling commenced by Francis I. and em-
bellished by Henry II.
" Whence this perseverance, and even this popularity, in the building
of a palace ? It is because the character of a people is reflected in its
institutions as in its customs, in the events that excite its enthusiasm as
well as in the monuments which become the object of its chief interest.
Now France, monarchical for so many centuries, which always beheld
in the central power the representative of her grandeur and of her
nationality, wished that the dwelling of the sovereign should be worthy
of the country; and the best means of responding to that sentiment
398 ON CIVIL LIBERTY
Capital cities and residences of kings, and even of petty
princes, have in this respect the same effect which single large
fortunes or single busy places have on the minds of the super-
ficial, in point of political economy. They are palpable, and
strike the mind, yet they prove nothing of themselves. There
is not a war, however ruinous, that does not produce gigantic
gains for some bankers, contractors, and able speculators.
They are often pointed out to prove that a certain war has not
been fatal to general prosperity. There have never existed
greater fortunes than those of some princely Roman senators,
was to adorn that dwelling with the different masterpieces of human
intelligence.
" In the middle ages, the king dwelt in a fortress, bristling with defen-
sive works ; but soon the progress of civilization superseded battle-
ments, and the produce of letters, of the arts and sciences, took the
place of weapons of war. Thus the history of monuments has also its
philosophy as well as the history of events.
"In like manner that it is remarkable that at the time of the first
revolution, the committee of public welfare should have continued, with-
out being aware of it, the work of Louis XI., of Richelieu, of Louis XI V.,
giving the last blow to the feudal system, and carrying out the system of
unity and centralization, the constant aim of monarchy in like manner
is there not a great lesson to learn in beholding the idea of Henry IV.,
of Louis XIII., of Louis XIV., of Louis XV., of Louis XVI., of Napo-
leon, as regards the Louvre, adopted by the ephemeral power of 1848 ?
One of the first acts, in fact, of the provisional government, was to decree
the completion of the palace of our kings. So true is it that a nation
draws from its antecedents, as an individual derives from his education,
ideas which the passions of a moment do not succeed in destroying.
When a moral impulse is the consequence of the social condition of a
country, it is handed down through centuries, and through different
forms of government, until the object in view is attained.
" Thus the completion of the Louvre, towards which I thank you for
your co-operation, given with so much zeal and skill, is not the caprice
of a moment, but is the realization of a plan conceived for the glory
and kept alive by the instinct of the country for more than three hundred
years."
In the evening some hundreds of persons engaged in the work work-
ing men, artists, men of letters, journalists were entertained at dinner
by the minister of state in a gallery of the Louvre. Of course the speak-
ing was ultra-loyal.
AND SELF-GOVERNMENT. 399
with their latifundia, in the very worst periods of the Roman
empire, amidst universal ruin, and when the country was
fast declining to that state in which the tillers of the soil
abandoned their farms, because unable to pay the taxes,
and in which Italy, with the utmost exertion of the go-
vernment, was not able to raise an army against invading
hordes.
Whenever we shall have executed our railway to the Pacific,
nothing of it will be seen at one moment and by the physical
eye, that differs from the rails of any other road, and the vul-
gar will be struck far more by a palace at Versailles, or a
column of Trajan ; unless, indeed, a pointing hand were hewn
in granite, at San Francisco, with the words, To the Atlantic,
and another at some Atlantic city, with the words, To the
Pacific ; and even then the grandeur of the road would not
be perceived by the physical eye. 1
We live in an age which has justly been called the age of
large cities. 2 Populous cities are indispensable to civilization,
and even to liberty, though I own that one of the problems
we have yet to solve is, how to unite in large cities the highest
degree of individual liberty and order.
But absorbing cities, cities on which monarchs are allowed
to lavish millions of the national wealth, always belong to a
low state of general national life, often to effete empires. The
vast cities of Asia, Byzantium, imperial Rome, and many other
cities prove it. On the other hand, it is an unfortunate state
of things in which one city rules supreme, either by an over-
whelming population, as Naples, or by concentration, as Paris.
Constant changes of governments seem almost inevitable,
whether they are produced by the people, as in the case of
Paris, or by foreigners, as was formerly the case in Naples.
A comparison between Paris and London, in this respect, is
1 No one will charge the author, he trusts, with political iconoclasm,
that has read his chapter on monuments in his Political Ethics.
2 The Age of Great Cities, or Modern Society viewed in its Relation
to Intelligence, Morals and Religion, by Robert Vaughn, D.D. Lon-
don, 1843.
400 ON CIVIL LIBERTY
instructive. London, far more populous, has far less influence
than Paris ; and London, incomparably richer, is far less bril-
liant than Paris. Monarchical absolutism and centralism
strike the eye and strive to do so ; liberty is brilliant indeed,
but it is brilliant in history, and must be studied in her institu-
tions. 1
Great as the influence of Paris has been ever since the reign
of the Valois, it has steadily increased, and those who strove
for liberty were by no means behind the others in their wor-
ship of the capital. This singular idolatry was actually ac-
knowledged by several resolutions of the representatives of
the people, during the late republic.
The intense influence of Paris, together with the wide-spread
system of government, every single thread of which centres in
Paris, is such that, in 1848, the republic was literally tele-
graphed to the departments, and adopted without any resist-
ance from any quarter, civil or military, which cannot be ex-
plained by the often avowed horror of the French at shedding
French blood, since blood was readily shed to elevate Louis
Napoleon. The same causes made it possible for the republic,
so readily and unanimously adopted, to be with equal readi-
ness changed by eight millions of votes into a monarchy.
It has already been admitted that centralism, by the very
fact that it concentrates great power, can produce many strik-
ing results which it is not in the power of governments on a
1 This manifests itself in all spheres. Paris leads in fashion, art,
science, language, etc. England has her Oxford and Cambridge.
The title of Walker's Critical Pronouncing Dictionary, has these
words' : " Likewise Rules to be observed by the Natives of Scotland,
Ireland and London, for avoiding their respective Peculiarities," as
indicating part of the contents. This is strikingly English. The pro-
nunciation and " peculiarities" of the Parisians, even as they change
from time to time, are the very standard of French pronunciation.
Similar remarks may be made regarding the courts. The court of
Versailles, dictated in every sphere at the time when Horace Walpole,
the whig, wrote that the English court was not fashionable, and was
considered little better than a number of Germans kept there for some
useful practical end.
AND SELF-GOVERNMENT. . 401
different principle to exhibit. These effects please and often
popularize a government ; but there is another fact to be taken
into consideration. Symmetry is one of the elements of hu-
manity ; systematizing is one of man's constant actions. It
captivates and becomes dangerous, if other elements and
activities equally important are neglected, or if it is carried
into spheres in which it ought not to prevail. The regu-
larity and consistent symmetry, together with the princi-
ple of unity, which pervade the whole French government,
charm many a beholder, and afford pleasure not unlike that
which many persons derive from looking at a plan of a mathe-
matically regular city, or from gardens architectonically
trimmed. But freedom is life, and wherever we find life it is
marked, indeed, by agreement of principles and harmony of
development, but also, by variety of form and phenomenon,
and by a subordinate exactness of symmetry. The centralist,
it might be said, mistakes lineal and angular exactness, formal
symmetry and mathematical proportions, for harmonious evo-
lution and profuse vitality. He prefers an angular garden of
the times of Louis XIV. to an umbrageous grove.
Centralism, and the desire to bring everything under the
influence of government, or to effect as far as possible every-
thing by government, has fearfully increased from the moment
that the imperatorial absolutism was declared j 1 while, at the
same time, a degree of man-worship has developed itself, which
makes people at a distance almost stand aghast. The same
hyperbolical, and, in many cases, blasphemous flattery, which
reminded the observer, in the times of Napoleon I., of im-
perial Rome, has been repeated since. No one who has at-
tentively followed the events of our times stands in need of
instances ; they were offered by hundreds, 2 and of a character
1 According to the latest news even the dead are under the control of
government, not in the sense of Sidney Smith, by paying taxes, but no
one can any longer be buried in Paris except by a chartered company,
standing under the close inspection of the police department.
2 Churchmen and laymen, as is well known, vie with each other on
such occasions. The blasphemous flattery offered by some dignitaries
26
402 ON CIVIL LIBEETT
that would make the most inveterate former tory-worship of
the crowned person appear as an innocent blundering; but
of the church to Napoleon I. was revolting. We have seen the same
when there seemed to be a question who could bid highest in burning
incense to the present new (Jjpsar. The Lord's prayer was travestied.
The following " proclamation" is taken from the " Concorde de Seine et
Oise," of October, 1852, for the very reason that it is not one of the
worst :
" Town of Sevres. Proclamation of the Empire.
"Inhabitants Paris, the heart of France, acclaimed on the 10th of
May for its emperor him whose divine mission is every day revealed in
such a striking and dazzling manner. At this moment it is the whole of
France electrified which salutes her savior, the elect of God, by this new
title, which clothes him with sovereign power : ' God wills it,' is repeated
with one voice ' vox populi vox Dei.' It is the marriage of France
with the envoy of God, which is contracted in the face of the universe,
under the auspices of all the constituted bodies, and of all the people.
That union is sanctified by all the ministers of religion, and by all the
princes of the church. These addresses, these petitions, and these
speeches, which are at this moment exchanging between the chief of
the state and France, are the documents connected with that holy
union ; every one wishes to sign them, as at the church he would sign
the marriage-deed at which he is present. Inhabitants of Sevres, as the
interpreter of your sentiments, I have prepared the deed which makes
you take part in this great national movement. Two books are opened
at the Mairie to receive your signatures : one of them will be offered in
your presence to him whom I from this day designate under the title of
emperor. Let us hope that he will deign to accede to the supplications
which I shall address to him in your name, to return to the palace of
St. Cloud through our territory, by the gate of honor which we possess.
The other book, which 1 shall present for the signature of the prince,
will remain in your archives as a happy souvenir of this memorable
epoch. Let all the population, without distinction, come, therefore, and
sign this document ; it sets forth that which is in your heart and in your
will."
This document is accompanied by a formal proclamation, appro-
priately signed " Manager, mayor."
Plain dealing, however, obliges us to remember, along with such
extravagances of foreigners, the repulsive flattery in which some indi-'
viduals indulged when Kossuth was among us. Nor must we wholly
forget the language of certain daily journals at the time of General
Jackson's administration. But these were erratic acts of individuals,
and, however disgusting, were not officially received by government.
AND SELF-GOVERNMENT. 403
we cannot pass over the fact that an infatuated yet large
part of a nation have for the first time in history, so far as
we know, called ideas after a man of action. "Napoleonic
ideas" has become a favorite expression. Not only newspa-
pers use this term a late one condemned free-trade because
"free-trade is no Napoleonic idea" but men whom we have
been accustomed to look upon with respect 1 have fallen into
this infatuation. All of us have heard of Christian ethics,
Christian ideas and sentiments, but we have never heard of
Carlovingian, Frederician, Julian, Alexandrian, Gregorian or
Lutheran ideas. It is a submission to a name, an individual
and an individual, too, be it observed, who distinguished him-
self as a man of action, which seems to indicate a singular
want of self-reliance and relf-respect.
Centralized governments can effect certain brilliant acts,
but they are on this account seriously liable to fall into a
method of carrying on public affairs, which, in the language of
stage managers, is significantly called starring, and which has
the serious inconvenience of leading popular attention from
solid actions to that which dazzles, from wholesome reality to
mere brilliant ideas.
The elevation of Napoleon III. may be referred in a mea-
sure to this error. Huzzaing crowds are never substantial in-
dications of any opinion, whether the crowds are voluntary or
subprenaed. "Where are my enemies?" said Charles II.
when he re-entered London and passed through the crowd of
his subjects. He had enough. Prince de Ligne tells us that,
when Catharine travelled through Crimea, distant populations
were carried to the roadside of the imperial traveller, to wait
on her, in costumes delivered to them by the government, and
to personate the inhabitants of show villages which had been
erected in the background. These sham villages are typical.
Still we can believe that many persons rushed to see the
present emperor when he travelled through France, before he
made himself emperor, because they really believed that which
Mr. Chevalier.
404 ON CIVIL LIBERTY.
had been so often repeated that Louis Napoleon " had saved
society and civilization." Now, this is exactly an idea which
belongs to the order that has been indicated.
It is in the first place founded upon the belief that if civili-
zation perishes in France, it is necessarily lost for the entire
world. It would certainly produce a very serious shock ; but
the French idea of one leading nation is an anachronism. It
belongs to ancient times ; the French easily fall into this error,
because Paris really leads France. Civilization, however, would
not be wholly lost even for France, should Paris be destroyed;
or, if it were so, what must we think of the whole country ?
Secondly, those who assert that Napoleon III. saved society,
mean, it must be supposed, that had he not taken the reins of
absolute power, the socialists would have destroyed property,
industry and individuality.
The fear which the socialists have inspired must have been
very great, and doubtless the power in every individual of
doing mischief is immense, compared to that of doing good.
Even an insect can cause a leak to a man-of-war ; but to say
that a single man such a man and by such means has been
the savior of society, is at once so monstrous an exaggeration,
and such an avowal of inability to act, and want of self-re-
liance, that this hyperbole, if it be not altogether an error,
would have led to no such results with any nation less accus-
tomed to centralism, absolutism, and an absorbing govern-
ment. These were necessary to make a nation so rapidly,
and apparently with so much good-humor, bend to all the
exorbitant and insulting demands of absolutism, to which,
unfortunately at this moment, the French nation seems to
bow with a peculiar grace.
CHAPTER XXXV.
VOX POPULI VOX DEI.
THE maxim Vox Populi Vox Dei is so closely connected
with the subjects which we have been examining, and it is so
often quoted on grave political occasions, that it appears to
me proper to conclude this work with an inquiry into the
validity of this stately saying. Its poetic boldness and epi-
grammatic finish, its Latin and lapidary formulation, and its
apparent connection of a patriotic love of the people with
religious fervor, give it an air of authority and almost of sacred-
ness. Yet history, as well as our own times, show us that
everything depends upon the question who are "the people,"
and that even if we have fairly ascertained the legitimate
sense of this great yet abused term, we frequently find that
their voice is anything rather than the voice of God.
If the term people is used for a clamoring crowd, which is
not even a constituted part of an organic whole, we would be
still more fatally misled by taking the clamor for the voice of
the deity. We shall arrive, then, at this conclusion, that in no
case can we use the maxim as a test, for, even if we call the
people's voice the voice of God in those cases in which the
people demand that which is right, we must first know that
they do so before we could call it the voice of God. It is no
guiding authority ; it can sanction nothing.
" The chief priests, and the rulers, and the people," cried
out all at once, " Crucify him, crucify him I" 1 Were then
"the rulers and the people" not the populus ? their voice
was assuredly not the vox Dei in this case ? If populus
1 St. Luke, 23.
(405)
406 ON CIVIL LIBERTY
means the constituted people speaking through the organs and
in the forms of law, the case of Socrates arises at once in
our mind. It was the people of Athens, speaking by their
constituted authorities, that bade him drink the hemlock ; yet
it would be blasphemy to say that it was the voice of God that
spoke in this case through the mouth of the Athenians. Was
it the voice of the people, and, through it, the voice of God,
which demanded the sway of the guillotine in the first French
revolution? Or was it the voice of God which made itself
heard in 1848, when all punishment of death for political of-
fences was abolished in France ? Or is it the voice of God
which through "the elect one of the people" demanded the
re-establishment of capital punishment for high political of-
fences ? Or is it the voice of God that used so indefinite a
term in law as that of political offences ?
There are, indeed, periods in history in which, centuries
after, it would seem as if an impulse from on high had been
given to whole masses, or to the leading minds of leading
classes, in order to bring about some comprehensive changes.
That remarkable age of maritime discovery which has influ-
enced the whole succeeding history of civilization and the en-
tire progress of our kind, would seem at first glance, and to
many, even after a careful study of all its elements, to have
received its motion and action from a breath not of human
breathing. No person, however, living at that period would
have been authorized to call the wide-spread love of maritime
adventure the voice of God, merely because it was widely dif-
fused. Impulsive movements of greater extent and intensity
have been movements of error, passion, and crime. It must be
observed that the thorough historian often acts in these cases
as the natural philosopher who finds connection, causes and ef-
fects where former ages thought they recognized direct and
detached manifestations or interpositions of a superior power,
and not the greater attribute of admitting variety under eter-
nal laws and unchanging principles.
When the whole of Europe was animated by one united
longing to conquer the holy land, it appeared undoubtedly to
AND SELF-GOVERNMENT. 407
the crusaders that the voice of the people was the voice of
God. It seemed, indeed, as if an afflatus numinis breathed
over the European land. Those, however, who now believe
that the crusades were a great injury to Europe and there
are such do not perceive the voice of God in this vast move-
ment. They will perhaps maintain .that it was not the people
who felt this surprising impulse, but the chivalry, who by their
unceasing petty feuds had developed a martial restlessness
which began to lack food, and thus engaged in distant enter-
prises, stimulated by the highly sacerdotal character which
pervaded that age. To find out, then, whether it was the
vox populi, would first require to find out whether it was the
vox Dei, and, consequently, we are no better off with the
maxim than without it. 1
I am under the impression that the famous maxim first came
into use in the middle ages, at a contested episcopal election, 2
1 Sir Win. Hamilton begins the third paragraph, page 770, of The
Works of Thomas Reid on the Universality of the Philosophy of Com-
mon Sense, in this way :
" 1. Hesiod thus terminates his Works and Days :
(Prjfj.rj d'ou-ors -xd/JLitav an oj.hr at r]c rtva TtoXkdl
Aatii l and libe-
rally constituted government, or ought to be suffered in a com-
munity which acknowledges the sovereignty of the law. Beccaria
says that clemency should be excluded in a perfect legislation, and
that pardon is a tacit disapprobation of the law. This is erro-
neous. No legislation can ever be perfect in the sense in which it
is taken here, namely, operating in all cases, in the same manner
1 Cicero in Verrem 7. 2 Des Lois Pennies.
3 Crimea and Punishments, chap. 4G, on Pardons ; English Tranila-
lation, 1807.
AND SELF-GOVERNMENT. 441
toward exactly the same end, for which the legislator has enacted
the law ; because the practical cases to which the laws apply are
complex, and often involve conflicting laws ; because the legislator,
though he were the wisest, is but a mortal with a finite mind, who
cannot foresee every combination of cases ; because the changes of
society, things, and relations necessarily change the effect produced
by the same laws ; and because the law-maker cannot otherwise
than cast the rules of action, which he prescribes, in human lan-
guage, which of itself is ever but an imperfect approximation to
that which is to be expressed.
Laws cannot, in the very nature of things, be made abstract
mathematical rules ; and so long as we live on this earth, where
we do not see "face to face, "where mind cannot commune with
mind except through signs which have their inherent imperfections,
cases must frequently occur in which the strict and formal applica-
tion of the law operates against essential justice, so that we shall
actually come to the conclusion that, in a country in which the
sovereignty of the laws is justly acknowledged, we stand in need
of a conciliatory power to protect ourselves against a tyranny of
the law, which would resemble the bed of Procrustes, and would
sometimes sacrifice essential justice as a bleeding victim at the
shrine of unconditional and inexorable law itself. It is to these
cases, among others, that the adage of the jurists themselves ap-
plies : Summum jus, summa injuria. We take it then for granted
on all hands, that, justice being the great end of all civil govern-
ment, and law the means to obtain it, the pardoning power is ne-
cessary in order to protect the citizen against the latter, whenever,
in the peculiar combination of circumstances, it militates with the
true end of the state, that is, with justice itself. But it is equally
true that the supremacy of the law requires that the extraordinary
power of pardoning be wielded in the spirit of justice, and not ac-
cording to individual bias, personal weakness, arbitrary view, or in-
terested consideration ; a truth which is the more important in our
country, because the same principles which make us bow before the
law as our supreme earthly ruler, also bring the magistrate so near
to the level of the citizen that he who is invested with the pardon-
ing power is exposed to a variety of influences, individual and
political, which have a powerful, and often, as practice shows, an
irresistible effect, although there is no inherent connection between
442 ON CIVIL LIBERTY
them and the cases to which the pardon is applied influences,
therefore, which in this respect are arbitrary or accidental. All
arbitrariness, however, is odious to sterling freedom in general, and
the arbitrary use of the pardoning power and its frequency pro-
duce the most disastrous consequences in particular.
It unsettles the general and firm reliance on the law, an abiding
confidence in its supremacy, and a loyal love of justice.
It destroys the certainty of punishment, which is one of the
most important and efficacious elements in the whole punitory
scheme ; and it increases the hope of impunity, already great, in
the criminally disposed, according to the nature of man and the
necessary deficiency even of the best contrived penal systems.
It endangers the community, since it is perfectly true what the
prince of poets, in his great wisdom, has said :
Mercy is not itself, that oft looks so ;
Pardon is still the nurse of second wo.
It interferes most effectually with the wise objects of reform
which our penitentiary systems aim at ; for all men, practically ac-
quainted with their operation, are agreed that reform never fairly
begins in a convict before he has calmly made up his mind to sub-
mit to the punishment, and so long as a hope of pardon leads his
thoughts from the prison cell to the anticipated enjoyment of un-
due enlargement a phenomenon easily to be accounted for upon
psychological grounds.
It induces large numbers of well-disposed persons, male and fe-
male, from a superficial feeling of pity, to meddle with cases of
which they have no detailed knowledge, and with a subject the
grave importance of which has never presented itself to their
minds. At times it induces persons to seek for pardons on frivo-
lous grounds and leads communities to trifle with law, justice and
government. 1
It largely attracts to the community, in which the pardoning
power is known to be abused, criminals from foreign parts where
such an abuse does not exist ; it imports crime.
1 At the beginning of 1858 it appeared from certain documents published
in California, that a petition to the governor, numerously signed by citizens
of Monterey, to pardon one Jose Anastasia, under the sentence of death,
claimed the pardon on the ground that Jose was the only fiddler in Monterey
that understood properly to play for dancing.
AND SELF-GOVERNMENT. 443
It makes every sentence, not pardoned, an unjust one ; for, in
matters of state, every act should be founded on right and equal
justice. 1 No one, therefore, has the right, whatever his power may
be, to extend a favor to one without extending it to all equally
situated, and, consequently, equally entitled to the favor. The
doctrine of Dr. Paley, of "assigning capital punishment to many
kinds of offences, but inflicting it only upon a few examples of each
kind," which he actually calls one of the "two methods of admi-
nistering penal justice," amounts to revolting monstrosity if practi-
cally viewed, and to an absurdity in a philosophical and scientific
point of view.
It adds, with the very commonly annexed condition of expatria-
tion, the flagrant abuse of saddling, in an inhuman, unchristian,
and unstatesmanlike manner, neighboring communities with crime,
to which the people, whose sacred and bounden duty it was to
punish it, were too weak and negligent to mete out its proper
reward. 2
And it places an arbitrary power in the hands of a single indi-
vidual, or several individuals, in states where all arbitrary power is
disclaimed, and allows them by one irresponsible act to defeat the
ends of toilsome, costly, and well-devised justice and legislation,
putting the very objects of civil government to naught.
We do not theorize on this subject. All the disastrous effects
of the abuse of the pardoning power, whether inherent in the
power itself, when unlimited by proper restrictions, or arising out
of a state of things peculiar to ourselves, have shown themselves
among us in an alarming degree, and are in many parts of the
country on the increase.
1 Lord Mansfield is reported justly to have remarked to George III., who
wished to save the Rev. Dr. Dodd from the gallows, to which he had been
sentenced for forgery: "If Dr. Dodd does not suffer the just sentence of the
law, the Perreaus may be said to have been murdered." Holliday's Life of
Lord Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of
very high standing, but had been hanged for forgery, in spite of the most
weighty petitions.
' 2 This unhallowed abuse has been raised into a law by Sir George Grey's
Expatriation Law, passed in 1847, according to which convicts who behave
well shall be pardoned after the lapse of two-thirds of the imprisonment to
which they had been originally sentenced, provided they will leave the
country.
444 ON CIVIL LIBERTY
JFor the proof of this evil state of things we appeal to every
one in our whole country who has made penal matters the subject
of earnest inquiry ; we appeal to the fact that, for a long series of
years, the official reports of persons connected with prisons and
penitentiaries, and of legislative committees, have teemed with
complaints of the mischievous effects of the pardoning power ; we
appeal to the daily papers, near and far, and to recent occurrences
in one of our most prominent states, where pardons have been
granted to blood-stained criminals of the most dangerous, perse-
vering, and resolute sort, without even the least indication of their
reform, after a short time of imprisonment, which had already
been substituted for capital punishment ; we appeal to the statis-
tics, whenever they have been collected, from official documents,
on this melancholy subject ; and, lastly, we appeal to the present-
ments of grand juries in several states of our Union, in which the
frequency of pardons under some governors has been called by the
severe yet merited name of nuisance.
So long ago as the year 1832, Messrs, de Beaumont and de
Tocqueville showed, in their work on the penitentiary system in
the United States, 1 by documents and statistical tables, the fright-
ful abuse of the pardoning power in the United States in general,
and the additional abuse, naturally resulting from the circum-
stances, that pardon is more liberally extended to those convicts
who are sentenced to a long period of imprisonment, or for life, than
to less criminal persons. We refer especially to the 2d part of the
16th note of the appendix, page 232 of the translation. We are
aware that in some, perhaps in many states of the Union, the par-
doning power has been used more sparingly since that time ; but
it will be observed that there is no security against a return to the
former state of things ; nor is the effect of pardoning, when it is
rare, yet abused in a few glaring cases, which attract universal
notice, less injurious ; for instance, when the member of a wealthy
or distinguished family is pardoned, although guilty of a well-
proven heinous crime, or when men are pardoned on political
grounds, although they have committed infamous and revolting
offences. Such cases have a peculiar tendency to loosen the ne-
cessary bonds of a law-abiding and law-relying community, which
Translated, with many additions, by Francis Lieber, Philadelphia, 1833.
AND SELF-GOVERNMENT. 44)
has nothing else, and is proud of having nothing else, to rely upon
than the law.
Many years ago Mr. M. Carey said, in his Thoughts on Peni-
tentiaries and Prisons : " The New York committee ascertained
that there are men who make a regular trade of procuring pardons
for convicts, by which they support themselves. They exert them-
selves to obtain signatures to recommendations to the executive
authority to extend pardon to them by whom they are employed.
And in this iniquitous traffic they are generally successful, through
the facility with which respectable citizens lend their names, with-
out any knowledge of the merits or demerits of the parties. Few
men have the moral courage necessary to refuse their signatures
when applied to by persons apparently decent and respectable, and
few governors have the fortitude to refuse."
To this statement we have now to add the still more appalling
fact, which we would pass over in silence if our duty permitted it,
that but a short time ago the governor of a large state a state
amongst the foremost in prison discipline was openly and widely
accused of having taken money for his pardons. We have it not
in our power to say whether this be true or not ; but it is obvious
that a state of th' ings which allows suspicions and charges so de-
grading and so ruinous to a healthy condition of public opinion,
ought not to be suffered. 1 It shows that, leaving the pardoning
privilege, uncontrolled in any way, to a single individual, is con-
trary to a substantial government of law, and hostile to a sound
commonwealth. 2
1 While these sheets are passing through the press, the papers report that
the governor of a large state has pardoned thirty criminals, among whom
were some of the worst character, at one stroke, on leaving the gubernato-
rial chair. What a legacy to the people ! Lord Brougham said that the
only aim of counsel for the prisoner was to get him clear, no matter what
the consequences might be. If all the lawyers acted on this saying, and all
the executives as the mentioned governor, Justice might as well shut up her
halls, and the people save the expenses which they incur for the administra-
tion of justice. It is paying too dear for a farce, which is not even enter-
taining.
2 In some of the worst governments, as those of Charles II., James II.,
and Louis XV., pardons were sold, but not by the pardoning ruler. It was
the mistresses and courtiers who carried on the infamous traffic, though the
monarchs knew about it.
446 ON CIVIL LIBERTY
A very interesting paper, relating to the subject of pardon, was
furnished in the year 1846 by the secretary of state, of Massa-
chusetts, and published by the house of representatives of that
commonwealth. The paper is, of itself, of much interest to every
penologist ; but, when we consider that Massachusetts justly ranks
amongst the best governed states of our Union, its value is much
enhanced ; for we may fairly suppose that the abuse of the pardon-
ing power exists in many of the other states in no less a degree.
In many, indeed, we actually know it to exist in a far greater and
more appalling degree.
From this document, 1 we have arrived at the following results :
There were imprisoned in the state of Massachusetts, from the
year 1801, inclusive, to the month of February, 1847, in the state
prisons, convicted, 3,850.
Of these were pardoned, before the term of imprisonment ex-
pired, 460. So that of the whole were pardoned 12 per cent, or
every eighth convict.
The average time of remaining in prison (of these 460,) com-
pared to the time of their original sentence, amounted to 65 per
cent. In other words, they remained in prison but two-thirds of
the time of imprisonment imposed upon them by the law of the
state.
Of the 460 pardoned convicts, there had been originally sen-
tenced to the imprisonment of ten years, or more, the number of
49. And the time which these convicts had actually remained in
prison, compared to the terms of their original conviction,
amounts to 60 per cent. ; so that a criminal sentenced to ten
years, or more, had a better chance of having his imprisonment
shortened, than those sentenced to a period less than ten years, in
the proportion of about six to seven in other words, while the
less guilty was suffering a week's imprisonment, the prisoners of
the darkest dye suffered six days only.
There were committed for life, by commutation of sentence, and
still farther pardoned at a later period, from 1815 to 1844 inclusive,
seventy-five. The average time they actually remained in prison
was a fraction over seven years. So that, if we take twenty-five
years as the average time of a sentence of imprisonment for life,
House of Representatives, of Massachusetts, 184G, No. C3.
AND SELF-GOVERNMENT. 447
we find that they remained in prison but little over one-fourth of
the time which had been allotted to them, in consequence of a first
pardon, (twenty-five per cent.,) or the executive substituted seven
years' imprisonment for death decreed by law. There were alto-
gether, committed for life by commutation of sentence, fifteen.
And, as we have seen that five of these were farther pardoned, we
find that one-third of the whole were pardoned (thirty-three per
cent.) It does not appear how many criminals were sentenced to
death, and what proportion, therefore, had their sentences com-
muted to imprisonment for life.
The abuse of pardoning in the state of Massachusetts has, how-
ever, much decreased during the latter part of the period through
which the mentioned report extends ; for, according to a table
published in the able and ' instructive third report of the New
York Prison Association, 1847, page 41 of the report of the
Prison Discipline Committee, we find that from 1835 to 1846, there
was pardoned in Massachusetts one convict of 1,804 ; while our
statement shows that in the period from 1807 to 1846 every
eighth convict was pardoned.
We beg leave to copy the chief result of the table just men-
tioned. 1
1 "While the work was passing through the press, a document, published
by the Massachusetts convention to amend the state constitution, reached
the writer. It contains "A List of Pardons, Commutations and liemissions
of Sentence, granted to Convicts by the Executive of the Commonwealth for
the ten years including 1843 and 1852." Unfortunately this important
paper, which contains the names of the persons, sentences, number of years
sentenced, number of years remitted, and the crimes, does not give any clas-
sifications, summings-up or comparisons with the number of sentences and
unremitted punishments. It only exhibits the following recapitulation for
10 years from 1843 to 1852 :
Full Pardons 36
liemissions . . . . . . . . .319
Restorations ........ 103
Commutations 35
Total - . 483
This paper will doubtless be made the basis of very instructive statistical
calculations, and it is greatly to be desired that other states would follow.
As it is, I am incapable of giving at this moment any other information. It
would require other documents, which I have not about inc. My remarks
448 ON CIVIL LIBERTY
Table showing the pardons in the following prisons in one or
several years from 1845 to 1846.
Vermont, one convict pardoned of 5.87 convicts.
Maine, 20.74 "
New Hampshire, 4.56 "
Connecticut, 36.50 "
Massachusetts, 18.04 "
Virginia, " " 33.31
Maryland, 41.00 "
Sing Sing, " 21.25 "
Auburn, " 17.83 "
Eastern Penitentiary, 20.37 "
Western Penitentiary, 6.43
Mississippi, " 10.81
Kentucky, 8.50
District of Columbia, " 87.00
Ohio, " 11.31
Rhode Island, " 18.00 "
If we take the above list as a fair representation of the whole
United States, we shall find that one convict of 26.33 is pardoned.
But we fear that this would not be very correct ; nor must it be
believed that any average number fairly represents the average
mischief of the abuse of pardoning. Although there be but very
few convicts pardoned in a given community, yet incalculable mis-
chief may be done by arbitrarily or wickedly pardoning a few pro-
minent and deeply stained criminals, as the average temperature
of a place may turn out very fair at the end of a year, while,
nevertheless, a few blasting night-frosts may have ruined the whole
crop.
are not intended to reflect on the gentleman who has drawn up the paper ;
for it appears that the convention ordered the paper on the ]8th of June,
and on July 5th it was handed in. There was then no time to collect the
materials for comparisons such as I have alluded to. What is now most im-
portant to know is the sum total of what sentences for what crimes were
chiefly remitted or pardoned ; for what reasons, what proportion pardons,
&c., bear to unretnitted sentences; for what crimes and what duration these
sentences were inflicted; of what countries the pardoned, &c., convicts were;
and what proportion the pardoned, &c., short sentences bear to pardoned,
&c., long sentences or death.
AND SELF-GOVERNMENT. 449
It ought to be kept in mind that, in all calculations of proba-
bility, averages must be taken with peculiar caution in all cycles of
facts in which an exceptionally high or low state of things produces
effects of its own, differing not only in degree but also in kind from
the effects which result from the more ordinary state of things. In
these cases averages indicate very partial truth only, or cannot be
taken as an index of the desired truth at all. The effects of these
maxima or minima are not distributive, and being effects of a dis-
tinct class there are no facts in the opposite direction to counteract
them. This applies to moral as well as physical averages, and be-
fore we apply ourselves to averages at all we must distinctly know
whether the elements we are going to use stand in the proper
connection with the nature of the result at which we desire to
arrive. 1
The abuse then exists, and exists in an alarming degree. How
is it to be remedied ?
In trying to answer this question, we would preface that we are
well aware that, unfortunately, the pardoning power is in almost all
states of our confederacy, determined by their constitutions, and
cannot be changed without a change of these fundamental instru-
ments. The object of the present paper, however, is not to pro-
pose any political measure. We shall treat the subject as a scien-
tific one, and an open question, irrespective of what can or may be
done in the different states in conformity with existing fundamental
laws. It is necessary, before all, to know what is the most desira-
1 A few examples may illustrate the truth too often forgotten: No farmer
can determine the fitness of a given climate for the culture of a certain
plant from the mean heat of the summer or the mean cold of the winter;
for the mean heat does not indicate whether the weather is uniform or
violently changeable; the mean interest at which money may have been
obtainable in the course of the year does not indicate the truth, unless we
know that it has not been peculiarly low at some periods and extraor-
dinarily high at others ; the general criminality of a community cannot be
calculated from the percentage of crime, unless we know that there has not
been a peculiarly disturbing cause: for instance, one man who has mur-
dered half a dozen of people in a comparatively small community; and the
mischief produced by pardons cannot be calculated by the average per-
centage alone, if we do not know that among these pardons there were no
some peculiarly arbitrary or peculiarly hostile to the ends of justice. A
wholesale pardon may be warranted by the truest principles, and a single
arbitrary pardon may shock the whole community.
29
450 ON CIVIL LIBERTY
i
ble object to be obtained. After this has been done, it will be pro-
per for every one concerned to adopt that practical course which
best meets his own peculiar circumstances, and to settle how near
his own means allow him to approach the desirable end.
Many vague things have been asserted of the pardoning power
by writers otherwise distinguished for soundness of thought, because
they were unable to rid themselves of certain undefined views and
feelings concerning princes and crowns. Some have maintained
that the pardoning privilege can be justified only in the monarchy,
because the monarch combines the character of the legislator and
executive, while Montesquieu wishes to restrict the right to the
constitutional monarch alone, because he does not himself perform
the judicial functions. All these opinions appear to us unsubstan-
tial. There is nothing mysterious, nothing transcendental in the
pardoning power. The simple question for us is, Why ought it
to exist ? If it ought to exist, who ought to be vested with it ?
What are its abuses, and how may we protect ourselves against
them ?
We have already seen that doubtless the pardoning power ought
to exist :
That there is no inherent necessity that it ought to exist in the
executive, or in the executive alone :
That a wide-spread abuse of the pardoning power exists, and
has existed at various periods :
That the abuse of the pardoning power produces calamitous
effects :
That the executive in our country is so situated that, in the
ordinary course of things, it cannot be expected of him that he will
resist the abuse :
And that the chief abuse of the pardoning power consists in the
substitution of an arbitrary use of power or of subjective views
and individual feelings, for, high, broad justice, and the unwavering
operation of the law, which ought to be freed from all arbitra-
riness.
We know, moreover, that all our constitutions, as well as the
laws of England, actually restrict the pardoning power in some
cases ; for instance, regarding impeachments, or fines to be paid to
private parties ; and in most of our states the executive is not in-
vested with the right of pardoning treason, which can only be done
AND SELF-GOVERNMENT. 451
by the legislature. i In others, again, the governor has no autho-
rity to pardon capital punishment before the end of the session of
that legislature which first meets after the sentence of death has
been pronounced ; and in other states he has only the power of
respiting the capitally condemned criminal until the meeting of the
legislature. It is obvious that no specific reason has induced our
legislators to give the pardoning power to the executive. It was
rather left where they happened to find it, or they placed it by
analogy, and not in consideration of any intrinsic reasons. 2
If it be true that pardon ought to be granted only in cases in
which essential justice demands it against the law, or for very spe-
cific and peculiar reasons for instance, if a convict, sentenced to
a short imprisonment, is so feeble in health, that, no proper hospi-
tal existing, the incidental consequences of imprisonment would be
infinitely severer than the law intended the punishment to be 3 (and
1 The Constitution of the late French Republic of 1848 has this provision :
"Art. 55. He (the president of the republic) shall possess the right of
pardon, but he shall not have the power to exercise the right until after he
has taken the advice of the council of state. Amnesties shall only be granted
by an express law. The president of the republic, the ministers, as well as
all other persons condemned by the high court of justice, can only be par-
doned by the national assembly."
1 do not consider it desirable that the pardoning power be given or im-
posed upon a political body already existing for other purposes, as in this
case to the council of state ; but I have cited this provision to show that
the French at that time did not consider the limitation of the pardoning
power in the executive unfavorable to popular liberty.
2 A remarkable proof of this fact seems to have been afforded by the late
constituent assembly of the state of New York ; for, so far as we are aware,
there was no debate on the question whether the pardoning power ought to
be left uncontrolled in the hands of the executive. We can very well imagine
that, after a discussion of this subject, a majority might have decided,
erroneously in our opinion, that the pardoning privilege ought to remain
where it was ; but we cannot imagine that a large number of men could
have possibly been from the beginning so unanimous upon so important a
subject, that not even a discussion was elicited, had the pardoning been
made a subject of any reflection at all. This is impossible in the nature of
things. Men will differ in opinion upon almost any point, nnd would cer-
tainly have differed upon so weighty and delicate a subject, had their minds
been directed to it.
s We certainly think that ill health, threatening disastrous consequences,
should form a ground of release in cases of comparatively short sentences,
452 ON CIVIL LIBERTY
is not this also a case of essential justice against the law ?) or
because strong suspicions of innocence have arisen after the trial,
it is equally clear that pardon ought to be granted after due inves-
tigation only, and that this investigation ought to be insured by
law.
The pardoning power might be transferred from the executive
to the legislature, or to an assembly of judges. We are emphati-
cally averse to either measure. The legislature is composed of
members elected to represent a variety of interests and views, all
of which ought to have a proportionate weight in the formation of
laws ; but neither the reasons why, nor the objects for which legis-
lators are elected have any connection with deciding upon a ques-
tion of pardon. If the decision were left at once to the whole
assembly, it would be impossible to give that degree of attentive ex-
amination to the details of each case which its nature requires, and
a party feeling would frequently warp a decision which could be
justified only on the ground of the highest and of essential justice.
If the case were first given to a committee (as we may imagine a
standing committee of pardon), and the legislature were regularly
to follow the decision of the committee, the latter step is useless ;
if the legislature, however, were not to follow implicitly this deci-
sion, we have the incongruities just indicated. As to the forming
if no good prison hospital exists. But, even where no hospital exists (which
is undoubtedly a great deficiency), much caution must be exercised. An
experienced and highly respectable prison physician in Massachusetts stated
in his report, some years ago, that pardons on account of deficient health
had a tendency to increase sickness in the prison, because many prisoners
will seriously and perseveringly injure their health in the hope of obtaining
thereby a pardon. A prison ought to have a hospital, and if, in spite of a
good hospital, the consciousness of being imprisoned has of itself any bad
consequences for the imprisoned patient, it must be taken as one of the
many incidental but unavoidable consequences of all imprisonment. There
are more serious consequences than this, which we are, nevertheless, unable
to separate from punishment. Punishment ought always to be individual,
and to strike no one but the evil doer: yet there is hardly ever an individual
punished whose sentence does not at the same time entail moral or physical
suffering upon others. Men are decreed to constitute societies, with con-
catenated weal and woe, and human judges cannot punish without indirectly
inflicting suffering upon those who are unconnected with the crime, but con-
nected with the criminal. If we were absolutely to follow out the first prin-
ciple, that the offender alone should suffer, we could not punish a single
convict.
AND SELF-GOVERNMENT. 453
a board of pardon of judges alone, we think the case would be
equally incongruous. The business of the judge, his duty, and his
habit of thinking, are strictly to apply the law. He is a valuable
magistrate only so long as he is a faithful organ of the established
law ; but, in the case of pardon, the object is neither to make nor
to apply a law, but to defeat its operation in a given and peculiar
case.
In order to constitute a proper authority, to which the pardon-
ing privilege can be safely intrusted, we ought to organize it so that
the following points are well secured :
That a careful investigation of each case take place before par-
don be granted :
That the authority be sufficiently strong to resist importunity :
That it contain a sufficient amount of knowledge of the law, its
bearing, and object :
That it enjoy the full confidence of the community.
These great objects, it is believed, can be obtained by a board of
pardon, consisting of a proper number of members say nine (in
the republic of Geneva it consists of this number), with one or two
judges among them, to be appointed by the legislature, with a pe-
riodical partial renovation (one-third leaving every three years),
and with these farther provisions :
That the board sit at certain portions of the year say twice :
That certain and distinct grounds must be stated in every peti-
tion for pardon ; and that, without them, all petitions, ever so re-
spectably and numerously signed, be not received :
That pardon can be granted by the governor only when duly re-
commended by the board ; and must be granted if the board recom-
mend it a second time, after the governor has returned the recom-
mendation with his reasons against it :
That no pardon be recommended without advertising in the
county where the convict has lived previous to his imprisonment,
and where he has committed his crime, that the board have in view
to recommend him to pardon, and without giving proper time to
act upon the advertisement :
That no pardon be granted without informing, likewise, the
warden of the prison, or prisons, in which the subject of the in-
tended pardon is, or has been, incarcerated, of the intention of the
board :
454 ON CIVIL LIBERTY
That no pardon be granted without previous inquiry of the court
which has sentenced the convict :
And that the reasons of the pardon, when granted, be pub-
lished.
Without some such guarantees, the pardoning power will always
be abused. The advertising of the intention of pardoning will
not be mistaken for an extra-constitutional and illegal call upon
the county to exercise functions which do not belong to it, and
ought not to belong to it, as, in reality, the governor of Ohio
(years ago) respited the execution of a criminal guilty of an atro-
cious murder, informing, at the same time, the people of the county
whence the criminal came, that he was desirous of knowing whether
they wished the criminal pardoned or not. 1
Nor must it be believed that, while we recommend to inform the
warden of a prisoner that his pardon is contemplated, we are de-
sirous of countenancing a system of pardon founded upon the good
conduct of the convicts in the prison. We consider such a mea-
sure inadmissible, for many reasons. It has been tried in France,
on a large scale ; and the effect was so bad that its own author ob-
tained its abolition, confessing his error. 2 What we desire is, that
proper information be obtained before a convict be pardoned, and
that no imposition take place. It frequently happens that a par-
don is obtained by persons unacquainted with the culprit, and a
dangerous and infamous man is returned to a community which
had the deepest interest in seeing the law take its uninterrupted
course.
We think it proper that the executive, thus controlled on the
one hand, and protected against importunites on the other, form a
party to the pardon, because the actual release must go through
his hands.
We doubt not that, if a board of pardoning were established, in
a short time a series of fair principles and rules, somewhat like the
rules of equity, would be settled by practice, and the pardoning
would be far less exposed to arbitrary action.
Totally distinct, however, from the pardoning ought to be kept
the restitution of a convict, when innocence has been proved after
1 National Gazette, Philadelphia, October 10, 1833.
2 De la Ville de Mirmont, Observations sur les Maisons Centrales de De-
tention de Paris, 1833, p. 65, and sequ.
AND SELF-GOVERNMENT. 455
conviction. It is a barbarous error to confound acknowledgment
of wrong committed by society against an individual with the
pardoning of a guilty person. Nothing can be pardoned where
nothing is to be pardoned, or where the only pardoner is the con-
vict He is entitled to indemnity, and the process ought even to
be called by a different name and differently to be provided for.
Not long ago a person sentenced for forgery in England to trans-
portation for a very long period or for life, we forget which, was
pardoned after several years endurance of the sentence, because
his innocence had been made patent. Some English papers justly
remarked how incongruous a pardon is in such cases, where, in
fact, the question is how a great and ruinous wrong committed by
society against an individual may be repaired in some degree at
least, and as far as it lies in human power. This is an important
subject of its own, deserving the most serious attention of all
civilized states, but does not fall within the province proper of
pardoning.
FRANCIS LIBBER.
I append to this paper, besides the additional notes which the
reader has seen, the following three items :
The official reports of the attorney-general of Massachusetts
show that :
In 1850, prosecutions of crime cost in that state $66,589 36
1851, " " 71,078 18
1852, " " " 63,900 68
To this must be added the cost of the courts, detective police,
rewards, penitentiaries, prison support.
When we speak of the cost of crime in general, we must not
only take into account the above items, but also the waste of pro-
perty by criminals, and the loss of labor, for criminals by profession
do not work, therefore do not produce.
The following extract of a speech by Lord Palmerston, secretary
for the home department, June 1, 1853, in the commons, is very
remarkable. C'est tout comme chez nous. I do not mean our
quakers act thus, but women inconsiderately get up petitions, and
are joined by busy religionists. Lord Palmerston said :
" That would be a very great evil, were any change of the law to
bring it about. But let us see how the thing would work. Even
456 ON CIVIL LIBERTY.
now, in cases of disputed rights of property, although it is gene-
rally matter of great scruple of conscience to depose to statements
which are not consistent with truth, yet we frequently see evidence
brought before courts of law not founded in fact. But in matters
regarding life and liberty, I am sorry to say that benevolent indi-
viduals have very little conscience at all. ('Hear!' and laughter.)
You may depend upon it that I have had too much experience of
the truth of what I have stated. I get applications signed by great
numbers of most respectable persons in favor of individuals with
regard to whose guilt there can be no possible doubt, or any doubt
that they have committed the most atrocious crimes. That is a
matter of every-day occurrence. Not long ago, a member of the
Society of Friends actually tried to bribe a witness to absent him-
self from the trial of a prisoner, in order to screen the man from
punishment, of whose guilt no human being could doubt. If you
had these second trials, you would have these pious frauds as fre-
quently committed."
Lastly, I would put here a short newspaper paragraph very
simple yet very fearful.
" In the course of an editorial article, intended to show that it
is the certainty, and not the severity, of punishment which is needed
for the suppression of crime, the Pittsburg Commercial makes the
following statement : *
" 'In fifteen years, during which the annals of crime in this
county have been stained by more than fifty murders, a single in-
stance of hanging has been affirmed by the executive as the mea-
sure of extreme penalty due ; and there justice was cheated of her
victim by suicide !' "
National Intelligencer, Washington, July 12, 1853.
APPENDIX III.
A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL
TRIAL AND THE LAWS OF EVIDENCE.
FEW things, in my opinion, show more distinctly the early Eng-
lish character than the fact that, without vindictiveness or cruelty
in the national character, the penal law inflicted death with a fear-
ful disregard of human life, while at the same time the penal trial
was carried on with great regard for individual rights and for the
mode of ascertaining the truth. The English were from early
times a peculiarly jural nation.
Those people who have the inquisitorial trial, on the other hand,
were in some instances far less sanguinary in their punishments, but
perfectly regardless of the trial, or, rather, the trial seemed to have
been established chiefly for the prosecuting party. It aimed at
knowing the truth ; the means to arrive at it were little cared about.
The rights of the prosecuted person appeared in a shadowy, unde-
fined way. And all this continues to exist in many countries.
I do not speak here of the worst countries only. I do not mean
to advert to the Austrian trial, as it was before the late revolutions.
I refer, for instance, to the German penal trial ; and mean by it the
penal trial of the countries in which the common German law pre-
vails, as well as those where, as in Prussia, a trial by statute law is
introduced. The late revolutions have changed some items. The
main ideas, however, remain, in many cases, the same.
Now, when a person accustomed to a regular and well-guarded
penal trial reads such works as Feuerbach's Criminal Cases, or any
detailed description of a penal trial, the laxity and incongruity of
the procedure strike us among other things with reference to the
following points :
1. The inquiring judge, that is, the judge who has been detailed,
to use a military term, to lead the whole inquiry, and who has been
day after day with the prisoner, and only one witness, viz. the secre-
tary, and whose whole skill has been exerted to bring the prisoner
(457)
458 ON CIVIL LIBERTY
to confession, or to establish the crime, is also frequently the first
sentencing judge, and always very powerfully influences the sentence.
If there is a separate sentencing judge, all the " acts," that is, all
that has been written down, is handed over to him, and from them
he frames his sentence, upon which the other judges, if there are
any, vote in plenary session. As a matter of course, they cannot
know much about the subject, and must be guided by the report
the sentencing judge makes.
2. The inquiring judge is, in many cases, what we would consi-
der wholly unrestricted. He takes hearsay evidence, and all sorts
of evidence, if he thinks proper. He is unrestricted as to time,
and an accused person may be kept for years under trial. He is
allowed to resort to all kinds of tricks, in order to work upon the
imagination of the prisoner ; for instance, calling him up at mid-
night, examining him and suddenly showing a skull to him. Every
worthy and puerile motive to speak the truth, and confess the
offence is resorted to.
3. There is no regular indictment, nor does the accused know in
his examinations what is charged against him ; at least the law does
not demand that he shall know it.
4. The prisoner is constantly urged to confess ; the whole trial
assumes the act charged against the prisoner, and treats him ac-
cordingly. Indeed it may be said that, although not avowedly,
yet virtually, the inquisitorial trial assumes in a very great degree
the character of an accusation which the accused has to disprove,
not one which the accuser is bound to prove. In some countries
and in certain cases this is positively the case. Even the French
penal trial is by no means wholly free from this serious fault.
5. There is no physical torture resorted to in order " to bring
out" the truth, since the positive abolition of the torture, but the
moral torture which is applied is immense, and the judge is author-
ized by law to punish with lashes or other physical means every
contradiction or lie proved from the convict's own statements. That
this can easily lead to all sorts of abuses is obvious.
6. There is no cross-examination of witnesses, and no stringent
law to compel witnesses in favor of the prisoner to appear before
the court.
7. Court and police frightfully mingle in their functions, in the
first stages of the trial.
AND SELF-GOVERNMENT. 459
8. There is a most sorrowful defence, cautious, fearful of offend-
ing the judges upon whom the promotion of the defensor depends,
and empowered to obtain certain points further cleared up only
through the court, which is the prosecuting party. Besides, the
defence only begins when the whole investigation by the court is
at an end, that is to say, all the " acts" are handed over to the 'de-
fensor. He studies them and writes the defence, which is given
along with the " acts" to the sentencing judge.
No wonder that the Germans universally called for a total change
of such a trial, and, as I stated before, some very important changes
have taken place.
The chief incongruity in this inquisitorial trial, however, is that
it admits of half proofs, two of which amount to a whole proof,
with other logical flagrancies, as well as the legal flagrancy of " de-
ficient proof," according to which a lighter punishment, but still a
punishment, is inflicted.
It is hardly conceivable how an intelligent nation, advanced in
the sciences, can have continued a logical absurdity of such crying
character until the most recent times, and can continue it, in some
parts of the country, to this day. It is reversing the order of
things, and substituting evidence, the means of arriving at the fact,
which is the thing to determine the punishment, for the criminal
fact.
The principle from which we start in penal law is, that crime
ought to be followed by evil, as a consequence of the crime. If
crimes punished themselves, we should not want judges ; if judges
were omniscient, we should not want trials. The object of the
trial is to prove that a crime has been committed, and that it has
been committed by the indicted person. This is called establish-
ing the fact, which means proving it reproducing it, as it were,
before the eyes of the judge ; in one word, convincing him of the
truth of the charge, of the fact, and the fact alone the deed can
be punishable. But the idea of a fact does not admit of degrees.
There may, indeed, be every possible degree of belief in a judge
from the first suspicion, from surmise, doubt, and belief, to the full-
est conviction ; but, if he metes out his punishments accordingly,
he does not punish for facts done by others, but according to the
degree of belief in himself. He substitutes his own subjective be-
lief for the objective fact. Now, there cannot be half facts, or
460 ON CIVIL LIBERTY
three-fourths of facts. A man may, indeed, buy poison, to commit
murder he may add to this, the mixing of the poison with a soup ;
he may add to this, the carrying of the soup to the sick-room ; and
he may add to this again, the presenting of the soup to a patient,
who finally consumes it ; but all these successive acts are not parts
of facts. Wherever the evil-minded man stopped, it was a fact ;
and, if it is punished, it is not punished as part of a crime, but
the inchoate crime is a whole penal fact, and, as such, punished.
Again, though four persons may, as witnesses, establish a fact, a
truth, each witness does not prove, on that account, a fourth of the
truth, which, like the fact, is one and indivisible. If they prove a
chain which ultimately establishes a fact, they still prove but one
fact, and each one proves for himself a whole truth, which, in con-
nection with the other truths, establishes the ultimate truth.
If four not very creditable witnesses establish one fact, when
I would not have believed either of them singly, because, in the
assumed case, they corroborate one another, when no connivance
can have taken place, they are in this case good witnesses, each
one for himself, and not four witnesses, each one worth a fourth of
a good witness. A thousand liars cannot, as liars, establish a truth,
but they may testify under circumstances which deprive them of
the character of liars, and thus be in the case good witnesses.
It is true, indeed, that man, conscious of his fallibility, and re-
solved severely to punish certain crimes, has laid down the rule
that, to prove certain crimes in such a manner that the law shall
consider them as proved, an amount of testimony shall be neces-
sary which is not required for lighter oifences. But this is only as
a safeguard, so as to prevent, as far as in us lies, the unjust infliction
of severe punishment. It has nothing to do with parts of truths,
or parts of facts. It has nothing to do with logic. In barbarous
times, however, it was actually conceived that logic itself is of
a sliding character, as it were. The Ripuarian laws demanded
seventy-two compurgators to absolve an incendiary, or murderer
(Leg. Ripuar. , cap. vi. vii. and xi. ) Here, the first error was to
consider the accused as tainted, who must clear himself, and not
as one accused, upon whom the deed must be proved. The second
error was that the number of compurgators must rise to clear the
tainted person, according to the taint (which, as yet, is nothing but
accusation). The Koran prescribes, in certain cases, a number of
AND SELF-GOVERNMENT. 461
oaths as though each oath, even of a person unworthy of belief,
contained some truth, which, by repetition, could be accumulated,
and ultimately form a whole truth. Not quite dissimilar is what
we read in Gregory of Tours. When the chastity of a certain
queen of France was suspected, three hundred knights swore, with-
out hesitation, that the infant prince was truly begotten by her de-
ceased husband. As if the oath of three hundred knights could
have any weight, when none of them could know the fact. But, if
people once fall into the error of demanding the proof of the nega-
tive to establish innocence, instead of demanding the proof positive
of the charge, they must necessarily fall into all sorts of errors.
The ecclesiastical law required, in a similar manner, or still requires,
seventy witnesses to prove incontinencyon a cardinal ; and, in Spain,
as Chancellor Livingston tells us, it required more witnesses to con-
vict a nobleman than a commoner. This is pretty much the same
logic which, as Captain \Vilkes tells us, induces the Fijians to put
more powder into the gun if they fire at a large man.
On the other hand; the idea of punishing according to the de-
gree of conviction in the judge, namely, lightly, if light suspicion
only has been existing, more severely, if belief has been created,
and so on, would not have been wholly inconsistent in ancient times,
when men had not yet succeeded in strictly separating the moral
law from the law of nature, and when the punishment was consi-
dered as a sort of extinction of guilt a neutralizing agent. This
is a theory which actually some modern criminalists of prominence
have endeavored to revive. According to them, the fact, not the
deed, is punished society has to wipe off the criminal fact which
has occurred, and the punishment is like the minus put against the
plus. But Aristotle already said, even the gods cannot make un-
done what has been done. The punishment would resemble the
penitence which in early times kings had to undergo for great na-
tional calamities. If this unphilosophical view were true, it would
be difficult to show why the criminal, who has committed the deed,
is the one selected to re-establish the equilibrium or for the atone-
ment. But the common sense of mankind has been in this case,
as in a thousand others, sounder than theories of unpractical
thinkers.
The judge who punishes half, because the evidence has sufficed
to create half a conviction only, commits the same logical fault
462 ON CIVIL LIBERTY
which a navigator would commit who has seen but dimly something
that may be a rock, and would go but half out of the way of the
danger. I say he commits the same logical fault, although the
effects would be the reverse.
Punishment, which is the intentional infliction of some sufferance
as deserved sufferance (in which it differs from the infliction of pain
by the surgeon), requires the establishment of the deed, and this is
absolute. The various degrees of belief in the deed are only in the
judge, not in the deed. The deed must determine the different
degrees of infliction of pain or privation ; all else is illogical.
If the reader has thought that I have dwelt too long on this
topic, he must remember that millions are to this day subject to
such legal logic as has been described.
It will be hardly necessary to refer in this place to the fact, that
although the ascertainment of truth is the main object of the trial,
it is not on that account allowed to resort to all and every means
which may bring about this end. Sound sense and a due regard
to the rights of individuals lead men to the conviction that a fixed
law of evidence is necessary, and to prescribe rules according to
which courts shall believe facts to be established, discarding all
those means which may expose the accused to cruelty, which may
be easily abused, which in turn may deceive, and whose effects in
general would be worse than the good obtained. Truth, established
according to those rules, is called legal truth. There can be but
one truth, that is the conviction agreeing with fact, but truth may
be established by various means, or by means agreeing with pre-
scribed rules. There may be one witness who testifies that he has
seen a man doing that, which, before the court can punish it, re-
quires two witnesses. The judge may be thoroughly convinced that
the witness speaks the truth ; yet the truth would not be legally
established it would not be a legal truth. This, too, may appear
unworthy of mention ; but only to those who do not know how
vehemently all persons hostile to liberty declaim against the dead
letter of the law, the hollow formalism of the Anglican trial, and
how anxious they are to substitute the subjective opinion of the
judge for the positive and well-defined law. I may put it down
here as a fact of historical interest that even so late as my early
days I heard a criminalist of some distinction regret the abolition
of " the question," i. e. the torture, and I speak gravely when I say
AND SELF-GOVERNMENT. 463
that, as times go, I should not be surprised if the re-establishment
of the torture should once more be called for in some countries.
Indeed, has the torture not been used ? Mr. Gladstone's pamphlet
on Neapolitan affairs tells us strange things. 1
1 It would seem that the torture actually continues to exist in some parts
of Europe. The following is taken from the London Spectator, of Decem-
ber 22d, 1849, which gives as its authority the well known Allgemeine
Zeitung, published at Augsburg, and, consequently, not far from Switzer-
land.
"A strange circumstance, says the Allgemeine Zeitung, has just taken
place at Herisau, the capital of Inner Appenzell, in Switzerland, showing
how much, in these countries of old liberties, civilization is behindhand in
some matters. A young girl of nineteen, some months back, assassinated
her rival. Her lover was arrested with her, and, as she accused him of the
crime, both were put to the torture. The girl yielded to the pain, and con-
fessed her crime ; the young man held firm in his denial: the former was
condemned to death, and on the 7th of this month was decapitated with the
sword, in the market-place of Herisau. This fact is itself a startling one,
but the details are just as strange. For two hours the woman was able to
struggle against four individuals charged with the execution. After the first
hour the strength of the woman was still so great that the men were obliged
to desist; the authorities were then consulted, but they declared that justice
ought to follow its course. The struggle then recommenced, with greater
intensity, and despair seemed to have redoubled the woman's force. At the
end of another hour she was at last bound by the hair to a stake, and the
sword of the executioner then carried the sentence into effect."
The author has touched upon the fact that, in our country, the abolition
of trial by jury has been proposed, in the note appended to page 236. The
topic is one of vital importance to our entire system of government and po-
litical existence. It is for this reason that he does not hesitate to direct the
earnest student of law, and of government, to a German work of high merit
Mr. Mittermaier's Legislation and Practice, with Reference to the Penal
Trial, according to their recent Development; Erlangen, 1856. The author
had not become acquainted with this important work, when the page re-
ferred to, was printing ; but the testimony given by the great criminalist, of
the satisfactory results derived from trial by jury, even in countries where
it has been recently established, has induced the author to append this note
here, rather than leave his readers unacquainted with evidence of such
weight in favor of so great an institution, considered by almost all friends
of liberty as one of the substantial acquisitions obtained by our progressive
race.
APPENDIX IV.
MAGNA CHART A OF KING JOHN,
FIFTEENTH DAY OF JUNE, IN THE SEVENTEENTH YEAR OF THE KING'S
REIGN, A.D. 1215.
JOHN, by the grace of God, king of England, lord of Ireland,
duke of Normandy and Aquitain, and earl of Anjou : to the arch-
bishops, bishops, abbots, earls, barons, justiciaries of the forests,
sheriffs, governors, officers, and to all bailiffs and other of his faith-
ful subjects, greeting. Know ye, that we, in the presence of God,
and for the health of our soul, and of the souls of our ancestors
and heirs, and to the honor of God and the exaltation of holy
church, and amendment of our kingdom, by advice of our venerable
fathers, Stephen, archbishop of Canterbury, primate of all England
and cardinal of the holy Roman church ; Henry, archbishop of
Dublin, William, bishop of London, Peter of Winchester, Jocelin,
' of Bath and Glastonbury, Hugh, of Lincoln, Walter, of Worcester,
William, of Coventry, Benedict, of Rochester, bishops ; and master
Pandulph,the pope's subdeacon and ancient servant, brother Ayrne-
rick, master of the temple in England, and the noble persons, Wil-
liam Marescall, earl of Pembroke, William, earl of Salisbury, Wil-
liam, earl of Warren, William, earl of Arundel, Alan de Galoway,
constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, and
Hubert de Burghe, senechal of Poictou, Hugo de Nevill, Matthew
Fitz Herbert, Thomas Basset, Alan Basset, Philip de Albine, Robert
de Roppele, John MarescaH, John Fitz Hugh, and others our liege-
men ; have, in the first place, granted to God, and by this our pre-
sent charter confirmed for us and our heirs forever :
1. That the church of England shall be free, and enjoy her whole
rights and liberties inviolable. And we will have them so to be
observed ; which appears from hence that the freedom of elections,
which was reckoned most necessary for the church of England, of
our own free will and pleasure we have granted and confirmed by
our charter, and obtained the confirmation of from Pope Innocent
(464)
ON CIVIL LIBERTY. 465
the Third, before the discord between us and our barons : which
charter we shall observe, and do will it to be faithfully observed by
our heirs forever.
II. We have also granted to all the freemen of our kingdom, for
us and our heirs forever, all the underwritten liberties, to have and
to hold to them and their heirs, of us and our heirs.
III. If any of our earls, or barons, or others who hold of us in
chief, by military service, shall die, and at the time of his death his
heir shall be of full age, and owe a relief, he shall have his inherit-
ance by the ancient relief; that is to say, the heir or heirs of an
earl, for a whole earl's barony, by a hundred pounds ; the heir or
heirs of a baron, for a whole barony, by a hundred pounds ; the
heir or heirs of a knight, for a whole knight's fee, by a hundred
shillings at most ; and he that oweth less shall give less, according
to the ancient custom of fees.
IV. But if the heir of any such shall be under age, and shall
be in ward, when he comes of age he shall have his inheritance
without relief or without fine.
Y. The warden of the land of such heir, who shall be under age,
shall take of the land of such heir only reasonable issues, reasona-
ble customs, and reasonable services ; and that without destruction
or waste of the men or things ; and if we shall commit the guardian-
ship of those lands to the sheriff, or any other who is answerable to
us for the issues of the land, and if he shall make destruction and
waste upon the ward lands, we will compel him to give satisfaction,
and the land shall be committed to two lawful and discreet tenants
of that fee, who shall be answerable for the issues to us, or to him
whom we shall assign. And if we shall give or sell the wardship
of any such lands to any one, and he makes destruction or waste
upon them, he shall lose the wardship, which shall be committed to
two lawful and discreet tenants of that fee, who shall in like man-
ner be answerable to us, as hath been said.
VI. But the warden, so long as he shall have the wardship of
the land, shall keep up and maintain the houses, parks, warrens,
ponds, mills and other things pertaining to the land, out of the
issues of the same land ; and shall restore to the heir, when he
comes of full age, his whole land stocked with ploughs and car-
riages, according as the time of wainage shall require, and the
issues of the land can reasonably bear.
30
466 ON CIVIL LIBERTY
VII. Heirs shall be married without disparagement, so as that
before matrimony shall be contracted those who are nearest to the
heir in blood shall be made acquainted with it.
VIII. A widow, after the death of her husband, shall forthwith,
and without any difficulty, have her marriage and her inheritance ;
nor shall she give anything for her dower or her marriage, or her
inheritance, which her husband and she held at the day of his death ;
and she may remain in the capital messuage or mansion house of
her husband, forty days after his death, within which term her dower
shall be assigned.
IX. No widow shall be distrained to marry herself, so long as
she has a mind to lire without a husband. But yet she shall give
security that she will not marry without our assent, if she holds of
us, or without the consent of the lord of whom she holds, if she
holds of another.
X. Neither we nor our bailiffs shall seize any land or rent for
any debt, so long as there shall be chattels of the debtor's upon
the premises, sufficient to pay the debt. Nor shall the sureties of
the debtor be distrained, so long as the principal debtor is suf-
ficient for the payment of the debt.
XI. And if the principal debtor fail in the payment of the debt,
not having wherewithal to discharge it, then the sureties shall
answer the debt ; and if they will, they shall have the lands and
rents of the debtor, until they shall be satisfied for the debt which
they paid him ; unless the principal debtor can show himself ac-
quitted thereof, against the said sureties.
XII. If any one have borrowed anything of the Jews, more or
less, and dies before the debt be satisfied, there shall be no interest
paid for that debt, so long as the heir is under age, of whomso-
ever he may hold. And if the debt falls into our hands, we will
take only the chattel mentioned in the charter or instrument.
XIII. And if any one shall die indebted to the Jews, his wife
shall have her dower, and pay nothing of that debt ; and if the
deceased left children under age, they shall have necessaries pro-
vided for them according to the tenement (or real estate) of the
deceased ; and out of the residue the debt shall be paid ; saving,
however, the service of the lords. In like manner let it be with
debts due to other persons than the Jews.
XIV. No scutage or aid shall be imposed in our kingdom, un-
AND SELF-GOVERNMENT. 467
less by the common council of our kingdom, except to redeem our
person, and make onr eldest son a knight, and once to marry our
eldest daughter ; and for this there shall only.be paid a reasonable
aid.
XV. In like manner it shall be concerning the aids of the city
of London ; and the city of London shall have all its ancient
liberties and free customs, as well by land as by water.
XVI. Furthermore, we will and grant that all other cities, and
boroughs, and towns, and ports, shall have all their liberties and
free customs ; and shall have the common council of the kingdom,
concerning the assessment of their aids, except in the three cases
aforesaid.
XVII. And for the assessing of scutages we shall cause to be
summoned the archbishops, bishops, abbots, earls, and great barons
of the realm, singly by our letters.
XVIII. And furthermore we shall cause to be summoned in
general by our sheriffs and bailiffs, all others who hold of us in
chief, at a certain day, that is to say, forty days before the meet-
ing, at least, to a certain place ; and in all letters of such sum-
mons we will declare the cause of the summons.
XIX. And summons being thus made, the business shall pro-
ceed on the day appointed, according to the advice of such as shall
be present, although all that were summoned come not.
XX. We will not for the future grant to any one, that he may
take aid from his own free tenants, unless to redeem his body, and
to make his eldest son a knight and once to marry his eldest daugh-
ter ; and for this there shall only be paid a reasonable aid.
XXI. No man shall be distrained to perform more service for a
knight's fee, or other free tenement, than is due from thence.
XXII. Common pleas shall not follow our court, but shall be
holden in some certain place. Tryals upon the writs of novel dis-
seisin, and of mort d'ancestor, and of darreine presentment, shall
be taken but in their proper counties, and after this manner: We,
or if we should be out of the realm, our chief justiciary, shall send
two justiciaries through every county four times a year ; who with
the four knights chosen out of every shire by the people, shall hold
the said assizes in the county, on the day and at the place appointed.
XXIII. And if any matters cannot be determined on the day
appointed to hold the assizes in each county, so many of the
468 ON CIVIL LIBERTY
knights and freeholders as have been at the assizes aforesaid shall
be appointed to decide them, as is necessary, according as there is
more or less business.
XXIV. A freeman shall not be amerced for a small fault, but
according to the degree of the fault ; and for a great crime in pro-
portion to the heinousness of it ; saving to him his contenement,
and after the same manner a merchant, saving to him his merchan-
dise.
XX Y. And a villain shall be amerced after the same manner,
saving to him his wainage, if he falls under our mercy ; and none
of the aforesaid amerciaments shall be assessed but by the oath of
honest men of the neighborhood.
XXYI. Earls and barons shall not be amerced but by their
peers, and according to the quality of the offence.
XXVII. No ecclesiastical person shall be amerced, but according
to the proportion aforesaid, and not according to the value of his
ecclesiastical benefice.
XXVIII. Neither a town or any person, shall be distrained to
make bridges over rivers, unless that anciently and of right they
are bound to do it.
XXIX. No sheriff, constable, coroners, or other our bailiffs,
shall hold pleas of the crown.
XXX. All counties, hundreds, wapentakes and trethings shall
stand at the old ferm, without any increase, except in our demesne
lands.
XXXI. If any one that holds of us a lay fee dies, and the
sheriff or our bailiff show our letters patents of summons concern-
ing the debt due to us from the deceased, it shall be lawful for the
sheriff or our bailiff to attach and register the chattels of the de-
ceased found upon his lay fee, to the value of the debt, by the view
of lawful men, so as nothing be removed until our whole debt be
paid ; and the rest shall be left to the executors to fulfil the will of
the deceased ; and if there be nothing due from him to us, all the
chattels shall remain to the deceased, saving to his wife and chil-
dren their reasonable shares.
XXXII. If any freeman dies intestate, his chattels shall be dis-
tributed by the hands of his nearest relations and friends, by the
view of the church, saving to every one his debts which the de-
ceased owed.
AND SELF-GOVERNMENT. 469
XXXIII. No constable or bailiff of ours shall take corn or
other chattels of any man, unless he presently gives him money for
it, or hath respite of payment from the seller.
XXXIY. No constable shall distrain any knight to give money
for castle guard, if he himself shall do it in his own person, or by
another able man, in case he shall be hindered by any reasonable
cause.
XXXV. And if we shall lead him, or if we shall send him
into the army, he shall be free from castle guard for the time he
shall be in the army by our command.
XXXVI. No sheriff or bailiff of ours, or any other, shall take
horses or carts of any for carriage.
XXXVII. Neither shall we, or our officers, or others, take any
man's timber for our castles, or other uses, unless by the consent
of the owner of the timber.
XXXVIII. We will retain the lands of those that are convicted
of felony but one year and a day, and then they shall be delivered
to the lord of the fee.
XXXIX. All wears for the time to come shall be demolished
in the rivers of Thames and Medway, and throughout all England,
except upon the sea-coast.
XL. The writ which is called prascipe shall not for the future be
granted to any one of any tenement whereby a free man may lose
his cause.
XLI. There shall be one measure of wine and one of ale
through our whole realm, and one measure of corn, that is to say,
the London quarter ; and one breadth of dyed cloth and russets
and haberjects, that is to say, two ells within the list ; and the
weights shall be as the measures.
XLII. From henceforward nothing shall be given or taken for
a writ of inquisition, from him that desires an inquisition of life
or limb, but shall be granted gratis, and not denied.
XLIII. If any one holds of us by fee farm, or socage, or bur-
gage, and holds lands of another by military service, we will not
have the wardship of the heir or land, which belongs to another
man's fee, by reason of what he holds of us by fee farm, socage, or
burgage ; nor will we have the wardship of the fee farm, socage, or
burgage, unless the fee farm is bound to perform military service.
XLIV. We will not have the wardship of an heir, nor of any
470 ON CIVIL LIBERTY
land which he holds of another by military service, by reason of
any petit-serjeanty he holds of us, as by the service of giving us
arrows, daggers, or the like.
XLV. No bailiff for the future shall put any man to his law,
upon his single accusation, without credible witnesses produced to
prove it.
XLVI. No freeman shall be taken, or imprisoned, or disseised,
or outlawed, or banished, or any ways destroyed ; nor will we pass
upon him, or commit him to prison, unless by the legal judgment
of his peers, or unless by the law of the land.
XLVII. We will sell to no man, we will deny no man, or defer
right or justice.
XLVIII. All merchants shall have safe and secure conduct to
go out of and to come into England, and to s.tay there, and to
pass, as well by land as by water, to buy, and sell by the ancient and
allowed customs, without any evil toll, except in time of war, or
when they shall be of any nation in war with us.
XLIX. And if there shall be found any such in our land in the
beginning of a war, they shall be attached, without damage to
their bodies or goods, until it may be known unto us, or our chief
justiciary, how our merchants be treated in the nation at war with
us ; and if ours be safe there, theirs shall be safe in our lands.
L. It shall be lawful for the time to come, for any one to go
out of our kingdom, and return safely and securely by land or by
water, saving his allegiance to us ; unless in time of war, by short
space, for the benefit of the kingdom, except prisoners and out-
laws, according to the law of the land, and people in war with us,
and merchants who shall be in such condition as is above mentioned.
LI. If any man holds of any escheat, as of the honor of Wal-
lingford, Nottingham, Bologne, Lancaster, or of other escheats
which are in our hands, and are baronies, and dies, his heir shall
not give any other relief, or perform any other service to us than
he would to the baron, if the barony were in possession of the
baron ; we will hold it after the same manner the baron held it.
LII. Those men who dwell without the forest, from henceforth
shall not come before our justiciaries of the forest upon summons,
but such as are impleaded or are pledges for any that were at-
tached for something concerning the forest.
LIII. We will not make any justiciaries, constables, bailiffs or
AND SELF-GOVERNMENT. 471
sheriffs, but what are knowing in the laws of the realm, and are
disposed duly to observe it.
LIV. All barons who are founders of abbies, and have charters
of the kings of England for the advowson, or are entitled to it by
ancient tenure, may have the custody of them, when void, as they
ought to have.
LV. All woods that have been taken into the forests, in our
own time, shall forthwith be laid out again, and the like shall be
done with the rivers that have been taken or fenced in by us, during
our reign.
LVI. All evil customs concerning forests, warrens, and foresters
warreners, sheriffs and their officers, rivers and their keepers, shall
forthwith be inquired into in each county, by twelve knights of the
same shire, chosen by the most creditable persons in the same
county, and upon oath ; and within forty days after the said in-
quest be utterly abolished, so as never to be restored.
LYII. We will immediately give up all hostages and engage-
ments, delivered unto us by our English subjects as securities for
their keeping the peace, and yielding us faithful service.
LYIII. We will entirely remove from our bailiwicks the rela-
tions of Gerard de Athyes, so as that for the future they shall
have no bailiwick in England. We will also remove Engelard
de Cygony, Andrew, Peter, and Gyon de Canceles, Gyon de
Cygony, Geoffrey de Martyn and his brothers, Philip Mark and
his brothers, and his nephew Geoffrey, and their whole retinue.
LIX. And as soon as peace is restored, we will send out of the
kingdom all foreign soldiers, crossbowmen and stipendiaries, who
are come with horses and arms, to the injury of our people.
LX. If any one hath been dispossessed or deprived by us with-
out the legal judgment of his peers, of his lands, castles, liberties
or right, we will forthwith restore them to him ; and if any dispute
arises upon this head, let the matter be decided by the five and
twenty barons hereafter mentioned, for the preservation of the peace.
LXI. As for all those things of which any person has without
the legal judgment of his peers been dispossessed or deprived,
either by king Henry, our father, or our brother, king Richard,
and which we have in our hands, or are possessed by others, and
we are bound to warrant and make good, we shall have a respite
till the term usually allowed the Croises ; excepting those things
472 ON CIVIL LIBERTY
about which there is a suit depending, or whereof an inquest hath
been made by our order, before we undertook the crusade. But
when we return from our pilgrimage, or if we do not perform it, we
will immediately cause full justice to be administered therein.
LXII. The same respite we shall have for disafforesting the
forests, which Henry, our father, or our brother, Richard, have af-
forested ; and for the wardship of lands which are in another's fee,
in the same manner as we have hitherto enjoyed these wardships,
by reason of a fee held of us by knight's service, and for the ab-
bies founded in any other fee than our own, in which the lord of
the fee claims a right ; and when we return from our pilgrimage,
or if we should not perform it, we will immediately do full justice
to all the complainants in this behalf.
LXIII. No man shall be taken or imprisoned upon the appeal
of a woman, for the death of any other man than her husband.
LXIV. All unjust and illegal fines, and all amerciaments, im-
posed unjustly and contrary to the law of the land, shall be en-
tirely forgiven, or else left to the decision of the five and twenty
barons hereafter mentioned for the preservation of the peace, or of
the major part of them, together with the foresaid Stephen, arch-
bishop of Canterbury, if he can be present, and others whom he
shall think fit to take along with him ; and if he cannot be present,
the business shall nevertheless go on without him ; but so that if
one or more of the five and twenty barons aforesaid be plaintiffs in
the same cause, they shall be set aside as to what concerns this par-
ticular affair, and others be chosen in their room out of the said
five and twenty, and sworn by the rest to decide that matter.
LXY. If we have disseised or dispossessed the Welsh of any
lands, liberties, or other things, without the legal judgment of
their peers, they shall be immediately restored to them. And if
any dispute arises upon this head, the matter shall be determined
in the Marches, by the judgment of their peers ; for tenements in
England, according to the law of England ; for tenements in
Wales, according to the law of Wales ; for tenements in the
Marches, according to the law of the Marches ; the same shall the
Welsh do to us and our subjects.
LXVI. As for all those things of which any Welshman hath,
without the legal judgment of his peers, been disseised or de-
prived, by king Henry, our father, or our brother, king Richard,
AND SELF-GOVERNMENT. 473
and which we either have in our hands, or others are possessed
of, and we are obliged to warrant it, we shall have a respite till
the time generally allowed the Croisaders ; excepting those things,
about which a suit is pending, or whereof an inquest has been made
by our order, before we undertook the crusade. But when we re-
turn, or if we stay at home, and do not perform our pilgrimage,
we will immediately do them full justice, according to the laws of
the Welsh, and of the parts aforementioned.
LXVII. We will without delay dismiss the son of Lewelin,
and all the Welsh hostages, and release them from the engage-
ments they entered into with us for the preservation of the peace.
LXYIII. We shall treat with Alexander, king of Scots, con-
cerning the restoring of his sisters, and hostages, and rights and
liberties, in the same form and manner as we shall .do to the rest
of our barons of England ; unless by the engagements which his
father William, late king of Scots, hath entered into with us, it
ought to be otherwise ; and this shall be left to the determination
of his peers in our court.
LXIX. All the aforesaid customs and liberties which we have
granted to be holden in our kingdom, as much as it belongs to us
towards our people, all our subjects, as well clergy as laity, shall
observe, as far as they are concerned, towards their dependents.
LXX. And whereas, for the honor of God and the amendment
of our kingdom, and for quieting the discord that has arisen be-
tween us and our barons, we have granted all the things aforesaid ;
willing to render them firm and lasting, we do give and grant our
subjects the following security, namely : that the barons may choose
five and twenty barons of the kingdom, whom they shall think con-
venient, who shall take care with all their might to hold and ob-
serve, and cause to be observed, the peace and liberties we have
granted them, and by this our present charter confirmed. So as
that if we, our justiciary, our bailiffs, or any of our officers, shall
in any case fail in the performance of them towards any person, or
shall break through any of these articles of peace and security,
and the offence is notified to four barons, chosen out of the five and
twenty aforementioned, the said four barons shall repair to us, or
to our justiciary, if we are out of the realm, and laying open the
grievance, shall petition to have it redressed without delay ; and if
it is not redressed by us, or, if we should chance to be out of the
474 ON CIVIL LIBERTY
realm, if it is not redressed by our justiciary within forty days,
reckoning from the time it has been notified to us, or to our justi-
ciary, if we should be out of the realm, the four barons aforesaid shall
lay the cause before the rest of the five and twenty barons, and the
said five and twenty barons, together with the community of the
whole kingdom, shall distrein and distress us in all the ways pos-
sible ; namely, by seising our castles, lands, possessions, and in any
other manner they can, till the grievance is redressed to their
pleasure, saving harmless our own person, and the persons of our
queen and children ; and when it is redressed, they shall obey us as
before.
LXXI. And any person whatsoever in the kingdom may swear
that he will obey the orders of the five and twenty barons afore-
said, in the execution of the premises, and that he will distress us
jointly with them, to the utmost of his power ; and we give public
and free liberty to any one that will swear to them, and never shall
hinder any person from taking the same oath.
LXXII. As for all those of our subjects, who will not of their
own accord swear to join the five and twenty barons in distreining
and distressing us, we will issue our order to make them take the
same oath as aforesaid.
LXXIII. And if any one of the five and twenty barons dies, or
goes out of the kingdom, or is hindered any other way from put-
ting the things aforesaid in execution, the rest of the said five and
twenty barons may choose another in his room, at their discretion,
who shall be sworn in like manner as the rest.
LXXI V. In all things that are committed to the charge of these
five and twenty barons, if, when they are all assembled together,
they should happen to disagree about any matter, or some of
them summoned will not, or cannot come, whatever is agreed upon
or enjoyned by the major .part of those who are present shall be
reputed as firm and valid as if all the five and twenty had given
their consent ; and the foresaid five and twenty shall swear that
all the premises they shall faithfully observe, and cause with all
their power to be observed.
LXXV. And we will not, by ourselves or others, procure any-
thing whereby any of these concessions and liberties be revoked or
lessened ; and if any such thing be obtained, let it be null and
void ; neither shall we ever make use of it, either by ourselves or
any other.
AND SELF-GOVERNMENT. 475
LXXYI. And all the ill-will, anger and malice that hath arisen
between us and our subjects of the clergy and laity, from the first
breaking out of the dissension between us, we do fully remit and
forgive. Moreover, all trespasses occasioned by the said dissen-
sions, from Easter, in the sixteenth year of our reign, till the resto-
ration of peace and tranquillity, we hereby entirely remit to all,
clergy as well as laity, and as far as in us lies, do fully forgive.
LXVII. We have moreover granted them our letters patents
testimonial of Stephen, lord-archbishop of Canterbury, of Henry,
lord-archbishop of Dublin, and the bishops aforesaid, as also of
master Pandulph, for the security and concessions aforesaid.
LXXYIII. Wherefore we will, and firmly enjoin, that the
church of England be free, and that all men in our kingdom have
and hold all the aforesaid liberties, rights and concessions, truly
and peaceably, freely and quietly, fully and wholly, to themselves
and their heirs, of us and our heirs, in all things and places forever,
as is aforesaid.
LXXIX. It is also sworn, as well on our part as upon the part
of the barons, that all the things aforesaid shall faithfully and sin-
cerely be observed.
Given under our hand, in the presence of the witnesses above
named, and many others, in the meadow called Runningmede, be-
tween Windelsore and Staines, the 17th day of June, in the 17th
year of our reign.
[The great charter has been repeatedly amended and confirmed.
I take the liberty of copying the following down to the end of page
201, from Mr. Creasy's Text-Book of the Constitution. 1 ]
1 The Text-Book of the Constitution, Magna Charta, The Petition of
Right and the Bill of Rights, with Historical Comments and Remarks on
the Present Political Emergencies, by E. S. Creasy, M. A., Barrister-at-
Law, Professor of History in University College, London, &c. London,
1848. A small work of 63 pages, excellent in its kind.
Since the first edition of the Civil Liberty was issued, Mr. Creasy has
published The Rise and Progress of the English Constitution, London, 1853;
the third edition of which was republished, in 1856, in New York, 12mo.,
350 pages. It is the best book for the student to commence the study of the
British Constitution, and preparatory for Hallam's Constitutional History of
England. Throughout the present work it must have appeared that a
knowledge of the English Constitution and of its history, is indispensable
for a correct understanding of our own, and I recommend the work of Mr.
Creasy, in this point of view, to every young American student.
476 OX CIVIL LIBERTY
MAGNA CHART A,
THE GREAT CHARTER,
(TRANSLATED AS IN THE STATUTES AT LARGE,)
MADE IN THE NINTH YEAR OF KING HENRY THE THIRD, AND CONFIRMED BY
KING EDWARD THE FIRST, IN THE FIVE AND TWENTIETH YEAR OF HIS
REIGN.
Edward, by the grace of God king of England, lord of Ireland,
and duke of Guyan : to all archbishops, bishops, &c. We have seen
the great charter of the lord Henry, sometimes king of England,
our father, of the liberties of England, in these words :
" Henry, by the grace of God king of England, lord of Ireland,
duke of Normandy and Guyan, and earl of Anjou: to all arch-
bishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, and
officers, and to all bailiffs and other our faithful subjects, which shall
see this present charter, greeting : Know ye, that we, unto the
honor of almighty God, and for the salvation of the souls of our
progenitors and successors, kings of England, to the advancement
of holy church and amendment of our realm, of our mere and free
will, have given and granted to all archbishops, bishops, abbots,
priors, earls, barons, and to all freemen of this our realm, these
liberties following, to be kept in our kingdom of England forever."
CHAPTER I.
A Confirmation of Liberties.
" First, we have granted to God, and by this our present charter
have confirmed for us and our heirs forever, that the church of
England shall be free, and shall have all her whole rights and liber-
ties inviolable. We have granted, also, and given to all the free-
men of our realm, for us and our heirs forever, these liberties un-
derwritten, to have and to hold to them and their heirs, of us and
our heirs forever."
CHAPTER II.
The Relief of the King's Tenant of full Age.
[Same as 2d chapter of John's Charter.]
AND SELF-GOVERNMENT. 477
CHAPTER III.
The Wardship of the Heir within Aye. The Heir a Knight.
[Similar to 3d chapter of John's Charter.]
CHAPTER IV.
No waste shall be made by a Guardian in waste lands.
[Same as 4th chapter of John's Charter.]
CHAPTER V.
Guardians shall maintain the Inheritance of Wards. Of
Bishoprics, &c.
[Similar to 5th chapter of John's Charter, with addition of like
provisions against the waste of ecclesiastical possessions while in
the king's hand during a vacancy in the see, &c.]
CHAPTER VI.
Heirs shall be Married without Disparagement.
[Similar to 6th chapter of John's Charter.]
CHAPTER VII.
A Widow shall have her Marriage, Inheritance and Quarantine.
The King's Widow, &c.
[Similar (with additions) to the 7th and 8th chapters of John's
Charter.]
CHAPTER VIII.
How Sureties shall be charged to the King.
[Same as 9th chapter of John's Charter.]
CHAPTER IX.
The Liberties of London and other Cities and Towns confirmed.
[Same as 13th chapter of John's Charter.]
CHAPTER X.
None shall distrain for more Service than is due.
[Same as 16th chapter of John's Charter.]
CHAPTER XI.
Common Pleas shall not follow the King's Court.
[Same as 17th chapter of John's Charter.]
478 t ON CIVIL LIBERTY
CHAPTERS XII. & XIII.
When and before whom Assizes shall be taken. Adjournment
for Difficulty. Assizes of Darrein Presentment.
[Analogous to 18th and 19th chapters of John's Charter.]
CHAPTER XIV.
How Men of all sorts shall be amerced, and by whom.
[Same as 20th and 21st chapters of John's Charter.]
CHAPTERS XV. & XVI.
Making and defending of Bridges and Banks.
[Similar to 23d chapter of John's Charter.]
CHAPTER XVII.
Holding Pleas of the Crown.
[Same as 24th chapter of John's Charter.]
CHAPTER XVIII.
The King's Debtor dying, the King shall be first paid.
[Same as 26th chapter of John's Charter.]
CHAPTERS XIX., XX. & XXI.
Purveyors for a Castle. Doing of Castle-ward. Taking of
Horses, Carts and Woods.
[Same as 28th, 29th, 30th and 31st chapters of John's Charter.]
CHAPTER XXII.
How long Felons' Lands shall be holden by the King.
[Same as 32d chapter of John's Charter.]
CHAPTER XXIII.
In what places Wears shall be put down.
[Same as 33d chapter of John's Charter.]
CHAPTER XXIV.
In what case a Prsecipe in Capite is grantable.
[Same as 14th chapter of John's Charter.]
AND SELF-GOVERNMENT. 479
CHAPTER XXV.
There shall be but one Measure through the Realm.
[Same as 35th chapter of John's Charter.]
CHAPTER XXVI.
Inquisition of Life and Member.
[Same as 38th chapter of John's Charter.]
CHAPTER XXVII.
Tenure of the King in Socage, and of another by Knight's Ser-
vice. Petit Serjeanty.
[Same as 37th chapter of John's Charter.]
CHAPTER XXVIII.
Wager of Law shall not be without witness.
[Same as 38th chapter of John's Charter.]
CHAPTER XXIX.
None shall be condemned without Trial. Justice shall not be
sold or deferred. 1
" No freeman shall be taken, or imprisoned, or be disseised of his
freehold, or liberties, or free customs, or be outlawed or exiled, or
any otherwise destroyed ; nor will we pass upon him, nor condemn
him, but by lawful judgment of his peers, or by the law of the
land. We will sell to no man, we will not deny or defer to any
man, either justice or right."
CHAPTER XXX.
Merchant Strangers coining into this Realm shall be well used.
[Same as 41st chapter of John's Charter.]
CHAPTER XXXI:
Tenure of a Barony coming into the King j s hands by Escheat.
[Same as 43d chapter of John's Charter.]
1 See 39th and 40th chapters of John's Charter.
480 ON CIVIL LIBERTY
CHAPTER XXXII.
Lands shall not be Aliened to the Prejudice of the Lord's Ser-
vice [i. e. Lord of the Fee~].
CHAPTER XXXIII.
Patrons of Abbeys shall have the custody of them in time of
Vacation.
[Same as 46th chapter of John's Charter.]
CHAPTER XXXIV.
In what cases only a Woman shall have an Appeal of Death.
[Same as 51st chapter of John's Charter.]
CHAPTER XXXV.
At what time shall be kept a County Court, a Sheriff's Term,
and a Leet.
CHAPTER XXXVI.
No Land shall be given in Mortmain.
" It shall not be lawful from henceforth to any to give his lands
to any religious house, and to take the same land again to hold of
the same house. Nor shall it be lawful to any house of religion
to take the lands of any, and to lease the same to him of whom he
received it : if any from henceforth give his lands to any religious
house, and thereupon be convict, the gift shall be utterly void, and
the land shall accrue to the lord of the fee."
CHAPTER XXXVII.
A Subsidy in respect of this Charter and the Charter of the
Forest granted to the King.
" Escuage from henceforth shall be taken like as it was wont to
be in the time of king Henry, our grandfather ; reserving to all
archbishops, bishops, abbots, priors, templars, hospitalers, earls,
barons, and all persons, as well spiritual as temporal, all their free
liberties and free customs, which they have had in time past. And
all these customs and liberties aforesaid, which we have granted to
be holden within this our realm, as much as appertaineth to us and
our heirs, we shall observe. And all men of this our realm, as
AND SELF-GOVERNMENT. 481'
well spiritual as temporal (as much as in them is), shall observe
the same against all persons in like wise. And for this our gift
and grant of these liberties, and of others contained in our charter
of liberties of our forest, the archbishops, bishops, abbots, priors,
earls, barons, knights, freeholders, and other our subjects, have
given unto us the fifteenth part of all their moveables. And we
have granted unto them, for us and our heirs, that neither we nor
our heirs shall procure or do anything whereby the liberties in this
charter contained shall be infringed or broken. And if anything
be procured by any person contrary to the premises, it shall be had
of no force nor effect. These being witnesses : Lord B., archbishop
of Canterbury, E., bishop of London, I., bishop of Bath, P., of
Winchester, H., of Lincoln, R., of Salisbury, W., of Rochester,
W., of Worcester, J., of Ely, H., of Hereford, R., of Chichester,
W., of Exeter, bishops ; the abbot of St. Edmonds, the abbot of
St. Albans, the abbot of Bello, the abbot of St. Augustine's in
Canterbury, the abbot of Evesham, the abbot of Westminster, the
abbot of Bourgh St. Peter, the abbot of Reding, the abbot of
Abindon, the abbot of Malmsbury, the abbot of Winchcomb, the
abbot of Hyde, the abbot of Certesy, the abbot of Sherburn, the
abbot of Cerne, the abbot of Abbotebir, the abbot of Middleton,
the abbot of Seleby, the abbot of Cirencester ; H. de Burgh, jus-
tice, H., earl of Chester and Lincoln, W., earl of Salisbury, W.,
earl of Warren, G. de Clare, earl of Gloucester and Hereford, W.
de Ferrars, earl of Derby, W. de Mandeville, earl of Essex, H. de
Bygod, earl of Norfolk, W., earl of Albemarle, H., earl of Here-
ford, J., constable of Chester, R. de Ros, R. Fitzwalter, R. de
Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de
Aubenie, J. Gresly, F. de Breus, J. de Monemue, J. Fitzallen,
H. de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauly,
Brian de Lisle, Thomas de Multon, R. de Argenteyn, G. de Nevil,
W. Mauduit, J. de Balun, and others."
We, ratifying and approving these gifts and grants aforesaid,
confirm and make strong all the same for us and our heirs per-
petually ; and by the tenor of these presents do renew the same,
willing and granting for us and our heirs that this charter, and all
and singular its articles, forever shall be stedfastly, firmly and in-
violably observed. Although some articles in the same charter
contained yet hitherto peradventure have not been kept, we will
31
482 ON CIVIL LIBERTY
and, by authority royal, command from henceforth firmly they be
observed. In witness whereof, we have caused these our letters
patent to be made. T. Edward, our son, at Westminster, the
twelfth day of October, in the twenty-fifth year of our reign.
Magna Charta, in this form, has been solemnly confirmed by our
kings and parliaments upwards of thirty times; but in the twenty-
fifth year of Edward I. much more than a simple confirmation of
it was obtained for England. As has already been mentioned, the
original charter of John forbade the levying of escuage, save by
consent of the great council of the land ; and although those im-
portant provisions were not repeated in Henry's charter, it is cer-
tain that they were respected. Henry's barons frequently refused
him the subsidies which his prodigality was always demanding.
Neither he nor any of his ministers seems ever to have claimed for
the crown the prerogative of taxing the landholders at discretion ;
but the sovereign's right of levying money from his towns and
cities, under the name of tallages or prises, was constantly exer-
cised during Henry III.'s reign, and during the earlier portion of
his son's. But, by the statute of Edward I. intituled Confirmatio
Chartarum, all private property was secured from royal spoliation^
and placed under the safeguard of the great council of all the
realm. The material portions of that statute are as follows :
CONFIRMATIO CHARTARUM.
ASNO VICESIMO QUIKTO EDV. I.
CAP. V.
And for so much as divers people of our realm are in fear that
the aids and tasks which they have given to us beforetime, towards
our wars and other business, of their own grant and good will
(howsoever they were made), might turn to a bondage to them and
their heirs, because they might be at another time found in the
rolls, and likewise for the prises taken throughout the realm, in our
name, by our ministers, we have granted for us and our heirs that
we shall not draw such aids, tasks, nor prises, into a custom for
anything that hath been done heretofore, be it by roll or any other
precedent that may be founden.
AND SELF-GOVERNMENT. 483
CAP. VI.
Moreover, we have granted for us and our heirs, as well to
archbishops, bishops, abbots, priors, and other folk of holy church,
as also to earls, barons, and to all the commonalty of the land, that
for no business from thenceforth we shall take such manner of
aids, tasks, nor prises, but by the common assent of all 1 the
realm, and for the common profit thereof, saving the ancient aids
and prises due and accustomed.
1 "Par commun assent de tut le roiaume." The version in our statute-
book omits the important word "All."
APPENDIX V.
THE PETITION OF RIGHT.'
To the King's Most Excellent Majestic.
HUMBLY shew unto our Sovereign Lord the King, the Lords
Spiritual and Temporal, and Commons in Parliament assembled,
that whereas it is declared and enacted by a Statute, made in the
tyme of the Raigne of King Edward the first, commonly called
" Statutum de Tallagio non concedendo," that no Tallage or Aide
should be laid or levied, by the King or his heires, in this Realme ;
without the good -will and assent of the Arch Bishopps, Bishopps,
Earles, Barons, Knights, Burgesses and other the freemen of the
cominalty of this realme ; And by Authority of Parliament houl-
den in the five and twentieth yere of the Raigne of King Edward
the third, it is declared and enacted, that from thenceforth noe per-
son should be compelled to make any loanes to the King against
his will, because such loanes were against reason, and the franchise
of the land ; and by other lawes of this realme it is provided, that
none should be charged by any charge or imposition, called a Be-
nevolence, nor by such like charge, by which the Statuts before
mentioned, and other the good lawes and statuts of this Realme,
your Subjects have inherited this freedom, that they should not be
compelled to contribute to any Tax, Tallage, Aide, or other like
charge, not sett by common consent in Parliament.
Yet nevertheless of late, divers commissions, directed to sundrie
commissioners in severall Counties, with instructions, have been
issued, by means whereof your People have bene in divers places
assembled, and required to lend certaine sommes of money unto
your Majestie, and many of them upon their refusall soe to doe,
have had an oath administered unto them, not warrantable by the
1 This petition was drawn up by Sir Edward Coke. Coke, 207, edit, of
1697.
(484)
ON CIVIL LIBERTY. 485
Lawes or Statuts of this Realme, and have been constrained to be-
come bound to make appearance, and give attendance before your
Privie Councell, and in other places ; and others of them have
beene therefore imprisoned, confined, and sundrie other wayes mo-
lested and disquieted : And divers other charges have bene laid
and leavied upon your People in severall Counties, by Lord Lieu-
tenants, Deputie-Lieutenants, Commissioners for musters, Justices
of peace and others, by commaunde or direction from your Majes-
tic, or your Privie-Councell, against the lawes and free customes of
the realme.
And whereas alsoe by the Statute called " The greate Charter
of the Liberties of England," it is declared and enacted, that noe
freeman may be taken or imprisoned, or be disseised of his freehold
or liberties, or his free customes, or be outlawed or exiled, or in
any manner destroyed, but by the lawfull judgment of his Peeres,
or by the lawe of the land.
And in the eight and twentieth yere of the reigne of King Ed-
ward the third, it was declared and ennacted by Authoritie of Par-
liament, that no man, of what estate or condition that he be, should
be putt out of his lands or tenements, nor taken nor imprisoned,
nor disherited, nor putt to death, without being brought to answer
by due process of lawe.
Nevertheless against the tenour of the said Statutes, and other
the good lawes and Statuts of your Realme, to that end provided,
divers of your subjects have of .late bene imprisoned without any
cause showed ; and when for their deliverance they were brought
before your Justices, by your Majestie's Writ of Habeas Corpus,
there to undergoe and receive, as the Court should order, and their
Keepers commaunded to certify the causes of their detayner ; noe
cause was certified, but that they were detayned by your Majestie's
special commaund, signified by the Lords of your Privie Councell,
and yet were returned back to severall prisons, without being
charged with any thynge to which they might make answeare ac-
cording to the lawe.
And whereas of late, great companies of souldiers and marriners
have bene dispersed into divers Counties of the Realme, and the
inhabitants against their wills have been compelled to receive them
into their houses, and there to suffer them to sojorne, against the
lawes and customes of this realme, and to the great grievance and
vexation of the People.
486 ON CIVIL LIBERTY
And whereas alsoe, by authority of Parliament, in the 25th yere
of the raignc of King Edward III., it is declared and enacted that
noe man should be forejudged of life or lymbe, against the forme
of the great Charter, and the lawe of the land, and by the said
great Charter, and other the Laws and Statuts of this your
llealme, no man ought to be adjudged to death, but by the lawes
established in this your reahne, either by the customes of the same
realuie, or by Acts of Parliament ; And whereas noe offender, of
what kind soever, is exempted from the proceedings to be used,
and the punishments to be inflicted by the lawes and statutes of
this your realme ; nevertheless of late time, divers commissions
under your Majestie's Greate Scale have issued forth, by which
certaine persons have been assigned and appointed commissioners,
with power and authoritie to proceed within the land, according
to the justice of martiall lawe, against such soulders and marri-
ners, or other dissolute persons joining with them, as should com-
mit any murder, robbery, felonie, meeting, or other outrage or
misdemeanour, whatsoever ; and by such suminarie course and
order as is agreeable to martiall lawe, and as is used in armies in
tyme of war, to proceed to the tryal and condemnation of such
offenders, and them to cause to be executed and putt to death, ac-
cording to the lawe martiall.
By pretext whereof, some of your Majestie's Subjects have bene
by some of the said commissioners put to death, when and where, if
lawes and statuts of the land they had deserved death, by the same
lawes and statuts alsoe they might, and by noe other ought, to have
been judged and executed.
And alsoe sundrie grievous offenders, by colour thereof clayminge
an exemption, have escaped the punishments due to them by the
lawes and statuts of this your realm, by reason that divers of your
officers and ministers of justice have unjustly re fused or forborne to
proceed against such offenders, according to the same lawes and
statuts, upon pretence that the said offenders were punishable only
by martiall lawe, and by authority of such commissions as aforesaid ;
which commissions, and all others of like nature, are wholely and
directlie contrary to the said lawes and statuts of this your realme.
They doe therefore humbly pray your most excellent Majestic,
That no man hereafter be compelled to make or yielde any guifte,
loane, benevolence, tax, or such like charge, v/ithout common con-
AND SELF-GOVERNMENT. 487
sent by Act of Parliament ; and that none be called to make an-
sweare, or take such oath, or to give attendance, or be confyned, or
otherwise molested or disquieted concerning the same, or for refusal
thereof: And that noe freeman, in any such manner as is before
mentioned, be imprisoned or detayned : And that your Majestic
would be pleased to remove the said souldiers and marriners, and
that your People may not be soe burthened in the tyme to come :
And that the aforesaid commissions for proceedinge by martiall
lawe, maybe revoaked and annulled: and that hereafter, noe com-
missions of like nature may issue forth to any person or persons
whatsoever, to be executed as aforesaid, least by colour of them,
any of your Majestie's subjects be destroyed, or putt to death, con-
trary to the lawes and franchise of the land.
All which they do most humbly pray of your most excellent Ma-
jestie, as their Rights and Liberties, according to the lawes and
statuts of this Realme : And that your Majestic would also vouch-
safe to declare, that the awardes, doeings, and proceedings, to the
prejudice of your People, in any of the premisses, shall not be
drawn hereafter into consequence or example : And that your
Majestic would be alsoe graciously pleased, for the further comfort
and safetie of your people, to declare your royal will and pleasure,
That in the things aforesaid all your officers and ministers shall
serve you, according to the lawes and statuts of this realme, as
they tender the honour of your majestic, and the prosperity of this
Kingdom.
The King's Answer to the Petition of Eight.
The King willeth that Right be done, according to the laws and
customs of the realme ; and that the Statutes be put in due exe-
cution, that his subjects may have no cause to complain of any
wrong or oppressions, contrary to their just Rights and Liberties,
to the preservation whereof he holds himself in conscience as well
obliged, as of his prerogative.
488 ON CIVIL LIBERTY.
Petition of both Houses to the King, on 1th day of June, 1628,
wherein a more full and satisfactory answer to the above Pe-
tition is prayed for.
May it please your most excellent Majestic, the Lords Spiritual
and Temporal, and Commons in Parliament assembled, taking in
consideration that the good intelligence between your Majestic and
your People, doth much depend upon your Majestie's answer upon
their Petition of Right, formerly presented ; with unanimous con-
sent do now become most humble suitors unto your Majestic, that
you would be pleased to give a clear and satisfactory answer there-
unto in full Parliament.
To which Petition the King replied :
The answer I have already given you was made with so good deli-
beration, and approved by the judgments of so many wise men, that I
could not have imagined but that it would have given you full satis-
faction : But to avoid all ambiguous interpretations, and to show
you there is no doubleness in my meaning, I am willing to pleasure
you as well in words as in substance : Read your petition, and you
shall have an answer that I am sure will please you.
Here the petition was read, and the following answer was re-
turned : " Soit Droit fait comme il est desire." C. R.
Then said his Majesty :
This I am sure is full, yet no more than I granted you in my
first answer, for the meaning of that, was to confirm your liberties,
knowing according to your own protestations, that you neither mean
nor can hurt my prerogative. And I assure you, my maxim is,
that the People's liberties strengthen the King's Prerogative, and
the King's Prerogative is to defend the People's Liberties.
You see how ready I have shown myself to satisfy your demand,
so that I have done my part ; wherefore if this parliament have
not a happy conclusion, the sin is yours, I am free from it.
[The above is the Answer of the King in Parliament, and his
Speech on that occasion, June 7th, 1628.]
APPENDIX VI.
AN ACT FOR THE BETTER SECURING THE LIBERTY OF THE
SUBJECT, AND FOR PREVENTION OF IMPRISONMENTS BEYOND
THE SEAS, COMMONLY CALLED "THE HABEAS CORPUS ACT."*
31 CH. 2. CH. 2, MAY, 1679.
WHEREAS great delays have been used by sheriffs, gaolers and
other officers, to whose custody any of the king's subjects have been
committed, for criminal or supposed criminal matters, in making
returns of writs of habeas corpus, to them directed, by standing out
on alias or pluries habeas corpus, and sometimes more, and by other
shifts to avoid their yielding obedience to such writs, contrary to
their duty and the known laws of the land, whereby many of the
king's subjects have been, and hereafter may be, long detained in
prison, in such cases where by law they are bailable, to their great
charge and vexation :
II. For the prevention whereof, and the more speedy relief of
all persons imprisoned for any such criminal or supposed criminal
matters ; (2) Be it enacted, by the king's most excellent majesty,
by and with the advice and consent of the lords spiritual and
temporal, and commons in this present parliament assembled,
and by the authority thereof, That whensoever any person or per-
sons shall bring any habeas corpus directed unto any sheriff or
sheriffs, gaoler, minister, or other person whatsoever, for any person
in his or their custody, and the said writ shall be served upon the
said officer, or left at the gaol or prison with any of the under-offi-
cers, under-keepers, or deputy of the said officers or keepers, that
the said officer or officers, his or their under-officers, under-keepers
or deputies, shall within three days after the service thereof, as afore-
said (unless the commitment aforesaid were for treason or felony,
plainly and especially expressed in the warrant of commitment),
1 Copied from the Statutes at Large, by Danby 1'ickering, Esq., edit.
1763, vol. 8, p. 482.
(489)
490 ON CIVIL LIBERTY
upon payment or tender of the charges of bringing the said prisoner,
to be ascertained by the judge or court that awarded the same, and
endorsed upon the said writ, not exceeding 12 pence per mile, and
upon security given by his own bond to pay the charges of carry-
ing back the prisoner, if he shall be remanded by the court or judge
to which he shall be brought, according to the true intent of this
present act, and that he will not make any escape by the way, make
return of such writ ; (3) and bring, or cause to be brought, the
body of the party so committed or restrained, unto or before the
lord chancellor, or lord keeper of the great seal of England, for
the time being, or the judges or barons of the said court, from
whence the said writ shall issue, or unto and before such other per-
son or persons before whom the said writ is made returnable, ac-
cording to the command thereof; (4) and shall then likewise certify
the true causes of his detainer or imprisonment, unless the commit-
ment of the said party be in any place beyond the distance of
twenty miles from the place or places where such court or person is,
or shall be residing ; and if beyond the distance of 20 miles, and not
above 100 miles, then within the space of ten days, and if beyond
the distance of 100 miles, then within the space of 20 days after
such delivery aforesaid, and not longer.
III. And to the intent that no sheriff, gaoler or other officer
may pretend ignorance of the import of any such writ ; (2) Be
it enacted by the authority aforesaid, that all such writs shall be
marked in this manner : " Per statutum, tricesimo primo Caroli
secundi Regis," and shall be signed by the person that awards the
same ; (3) and if any person or persons shall be or stand committed
or detained as aforesaid, for any crime, unless for felony or treason,
plainly expressed in the warrant of commitment, in the vacation
time and out of term it shall and may be lawful to and for the per-
son or persons so committed or detained (other than persons con-
vict or in execution by legal process), or any one in his or their
behalf, to appeal or complain to the lord chancellor or lord keeper,
or any one of his majesty's justices, either of the one bench or of
the other, or the barons of the exchequer of the degree of the coif;
(4) and the said lord chancellor, lord keeper, justices or barons, or
any of them, upon view of the copy or copies of the warrant or war-
rants of commitment and detainer, or otherwise upon oath made
that such copy or copies were denied to be given by such person
AND SELF-GOVERNMENT. 491
or persons in whose custody the prisoner or prisoners is or are de-
tained, are hereby authorized and required, upon request made in
writing by such person or persons, or any on his, her, or their be-
half, attested and subscribed by two witnesses who were present at
the delivery of the same, to award and grant an habeas corpus,
under the seal of such court whereof he shall then be one of the
judges, (5) to be directed to the officer or officers in whose custody
the party so committed or detained shall be, returnable immediate
before the said lord chancellor or lord keeper, or such justice,
baron, or any other justice or baron of the degree of the coif, of
any of the said courts ; (6) and upon service thereof as aforesaid,
the officer or officers, his or their under-officer or under-officers,
under-keeper or under-keepers, or their deputy, in whose custody
the party is so committed or detained, shall within the time re-
spectively before limited, bring such prisoner or prisoners before
the said lord chancellor, or lord keeper, or such justices, barons, or
one of them, before whom the said writ is made returnable, and in
case of his absence, before any other of them, with the return of
such writ and the true causes of the commitment or detainer ; (7)
and thereupon, within two days after the party shall be brought
before them, the said lord chancellor or lord keeper, or such justice
or baron before whom the prisoner shall be brought as aforesaid,
shall discharge the said prisoner from his imprisonment, taking his
or their recognizance, with one or more surety or sureties, in any
sum according to their discretions, having regard to the quality of
the prisoner and the nature of the offence, for his or their appear-
ance in the court of king's bench the term following, or at the next
assizes, sessions, or general gaol delivery, of or for such county,
city or place where the commitment was, or where the offence was
committed, or in such other court where the said offence is properly
cognizable, as the case shall require, and then shall certify the said
writ with the return thereof, and the said recognizance or recog-
nizances into the said court where such appearance is to be made ;
(8) unless it shall appear to the said lord chancellor, or lord keeper,
or justice or justices, or baron or barons, that the party so com-
mitted is detained upon a legal process, order or warrant, out of
some court that hath jurisdiction of criminal matters, or by some
warrant signed and sealed with the hand and seal of any of the
said justices or barons, or some justice or justices of the peace, for
492 ON CIVIL LIBERTY
sach matters or offences for the which by the law the prisoner is
not bailable.
IV. Provided always, and be it enacted, That if any person
shall have wilfully neglected, by the space of two whole terms after
his imprisonment, to pray a habeas corpus for his enlargement, such
person so wilfully neglecting shall not have any habeas corpus to be
granted in vacation time, in pursuance of this act.
V. And be it further enacted, by the authority aforesaid, That
if any officer or officers, his or their under-officer or under-officers,
under-keeper or under-keepers, or deputy, shall neglect or refuse
to make the returns aforesaid, or to bring the body or bodies of the
prisoner or prisoners according to the command of the said writ,
within the respective times aforesaid, or upon demand made by the
prisoner or person in his behalf, shall refuse to deliver, or within
the space of six hours after demand, shall not deliver to the person
so demanding, a true copy of the warrant or warrants of commit-
ment and detainer of such prisoner, which he and they are hereby
required to deliver accordingly ; all and every the head gaolers
and keepers of such person, and such other person in whose custody
the prisoner shall be detained, shall for the first offence forfeit to
the prisoner or party grieved the sum of 100 ; (2) and for the
second offence the sum of 200, and shall and is hereby made in-
capable to hold or execute his said office ; (3) the said penalties
to be recovered by the prisoner or party grieved, his executors and
administrators, against such offender, his executors or adminis-
trators, by any action of debt, suit, bill, plaint or information, in
any of the king's courts at Westminster, wherein no essoin, protec-
tion, privilege, injunction, wager of law, or stay of prosecution by
" Non vult ulterius prosequi," or otherwise, shall be admitted or
allowed, or any more than one imparlance ; (4) and any recovery
or judgment at the suit of any party grieved, shall be a sufficient
conviction for the first offence ; and any after recovery or judgment
at the suit of a party grieved, for any offence after the first judg-
ment, shall be a sufficient conviction to bring the officers or person
within the said penalty for the second offence.
VI. And for the prevention of unjust vexation by reiterated
commitments for the same offence ; (2) Be it enacted, by the au-
thority aforesaid, That no person or persons, which shall be delivered
or set at large upon any habeas corpus, shall at any time hereafter be
AND SELF-GOVERNMENT. 493
again imprisoned or committed for the same offence, by any person
or persons whatsoever, other than by the legal order and process
of such court wherein he or they shall be bound by recognizance
to appear, or other court having jurisdiction of the cause ; (3) and
if any other person or persons shall knowingly, contrary to this act
recommit or imprison, or knowingly procure or cause to be recom-
mitted or imprisoned, for the same offence or pretended offence, any
person or persons delivered or set at large as aforesaid, or be know-
ingly aiding or assisting therein, then he or they shall forfeit to the
prisoner or party grieved, the sum of 500 ; any colorable pretence
or variation in the warrant or warrants of commitment notwith-
standing, to be recovered as aforesaid.
VII. Provided always, and be it further enacted, That if any
person or persons shall be committed for high treason or felony,
plainly and specially expressed in the warrant of commitment, upon
his prayer or petition in open court, the first week of the term, or
first day of the sessions of oyer and terminer or general gaol deli-
very, to be brought to his trial, shall not be indicted some time in
the next term, sessions of oyer and terminer or general gaol de-
livery, after such commitment ; it shall and may be lawful to and for
the judges of the court of king's bench, and justices of oyer and ter-
miner or general gaol delivery, and they are hereby required, upon
motion to them made in open court the last day of the term, sessions
or gaol delivery, either by the prisoner or any one in his behalf, to
set at liberty the prisoner upon bail, unless it appear to the judges
and justices, upon oath made, that the witnesses for the king could
not be produced the same term, sessions or general gaol delivery ;
(2) and if any person or persons committed as aforesaid, upon his
prayer or petition in open court the first week of the term or the
first day of the sessions of oyer and terminer and general gaol de-
livery, to be brought to his trial, shall not be indicted and tried the
second term, sessions of oyer and terminer or general gaol delivery,
after his commitment, or upon his trial shall be acquitted, he shall
be discharged from his imprisonment.
VIII. Provided always, That nothing in this act shall extend
to discharge out of prison any person charged in debt, or other
action, or with process in any civil cause, but that after he shall be
discharged of his imprisonment for such his criminal offence, he
shall be kept in custody according to the law for such other suit.
494 ON CIVIL LIBERTY
IX. Provided always, and be it further enacted by the authority
aforesaid, That if any person or persons, subjects of this realm,
shall be committed to any prison, or in custody of any officer 1 or
officers Avhatsoever, for any criminal or supposed criminal matter,
that the said person shall not be removed from the said prison and
custody, into the custody of any other officer or officers ; (2) unless
it be by habeas corpus or some other legal writ ; or where the pri-
soner is delivered to the constable or other inferior officer, to carry
such prisoner to some common gaol ; (3) or where any person is
sent by order of any judge of assize, or justice of the peace, to any
common workhouse or house of correction ; (4) or where the pri-
soner is removed from one place or prison to another within the
same county, in order to his or her trial or discharge in due course
of law ; (5) or in case of sudden fire or infection, or other neces-
sity ; (6) and if any person or persons shall, after such commitment
aforesaid, make out and sign or countersign any warrant or war-
rants for such removal aforesaid, contrary to this act ; as well he
that makes or signs or countersigns such warrant or warrants, as
the officer or officers that obey or execute the same, shall suffer and
incur the pains and forfeitures in this act before mentioned, both
for the first and second offence respectively, to be recovered in
manner aforesaid by the party grieved.
X. Provided also, and be it further enacted by the authority
aforesaid, That it shall and may be lawful to and for any prisoner
and prisoners as aforesaid, to move and obtain his or their habeas
corpus, as well out of the high court of chancery or court of ex-
chequer as out of the courts of king's bench or common pleas, or
either of them ; (2) and if the said lord chancellor or lord keeper,
or any judge or judges, baron or barons, for the time being, of the
degree of the coif, of any of the courts aforesaid, in the vacation
time, upon view of the copy or copies of the warrant or warrants
of commitment or detainer, upon oath made that such copy or co-
pies were denied as aforesaid, shall deny any writ of habeas corpus,
by this act required to be granted, being moved for as aforesaid,
they shall severally forfeit to the prisoner or party grieved, the sum
of 500, to be recovered in manner aforesaid.
XI. And be it declared and enacted by the' authority aforesaid,
That an habeas corpus, according to the true intent and meaning
of this act, may be directed and run into any county Palatine, the
AND SELF-GOVERNMENT. 495
Cinque Ports, or other privileged places within the kingdom of
England, dominion of Wales, or town of Berwick upon Tweed, and
the islands of Jersey or Guernsey ; any law or usage to the con-
trary notwithstanding.
XII. And for preventing illegal imprisonments in prisons beyond
the seas ; (2) Be it further enacted by the authority aforesaid, That
no subject of this realm, that now is or hereafter shall be an inha-
bitant or resiaht of this kingdom of England, dominion of Wales,
or town of Berwick upon Tweed, shall or may be sent prisoner into
Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garri-
sons, islands, or places, beyond the seas, which are or at any time
hereafter shall be within or without the dominions of his majesty,
his heirs or successors ; (3) and that every such imprisonment is
hereby enacted and adjudged to be illegal ; (4) and that if any of
the said subjects now is or hereafter shall be so imprisoned, every
such person and persons so imprisoned, shall and may for every
such imprisonment maintain, by virtue of this act, an action or ac-
tions of false imprisonment, in any of his majesty's courts of record,
against the person or persons by whom he or she shall be so com-
mitted, detained, imprisoned, sent prisoner or transported, contrary
to the true meaning of this act, and against all or any person or
persons that shall frame, contrive, write, seal or countersign any
warrant or writing for such commitment, detainer, imprisonment,
or transportation, or shall be advising, aiding, or assisting in the
same, or any of them ; (5) and the plaintiff in every such action
shall have judgment to recover his treble costs, besides damages,
which damages so to be given shall not be less than 500 ; (6) in
which action no delay, stay or stop of proceeding by rule, order or
command, nor no injunction, protection or privilege whatsoever,
nor any other than one imparlance, shall be allowed, excepting
such rule of the court wherein such action shall depend, made in
open court, as shall be thought in justice necessary for special
cause to be expressed in said rule ; (7) and the person or persons
who shall knowingly frame, contrive, write, seal or countersign any
warrant for such commitment, detainer, or transportation, or shall
so commit, detain, imprison, or transport any person or persons,
contrary to this act, or be any ways advising, aiding or assisting
therein, being lawfully convicted thereof, shall be disabled from
thenceforth to bear any office of trust or profit within the said
496 ON CIVIL LIBEETY
realm of England, dominion of Wales, or town of Berwick upon
Tweed, or any of the islands, territories or dominions thereunto
belonging ; (8) and shall incur and sustain the pains, penalties and
forfeitures limited, ordained and provided in and by the statute of
provision and praemunire, made in the sixteenth year of king Rich-
ard the Second ; (9) and be incapable of any pardon from the king,
his heirs or successors, of the said forfeitures, losses or disabilities,
or any of them.
XIII. Provided always, That nothing in this act shall extend
to give benefit to any person who shall by contract in writing agree
with any merchant or owner of any plantation, or other person
whatsoever, to be transported to any parts beyond the seas, and
receive earnest upon such agreement, although that afterwards
such person shall renounce such contract.
XIV. Provided always, and be it enacted, That if any person
or persons lawfully convicted of any felony, shall in open court
pray to be transported beyond the seas, and the court shall think
fit to leave him or them in prison for that purpose, such person or
persons may be transported into any parts beyond the seas ; this
act, or anything herein contained, to the contrary notwithstanding.
XV. Provided also, and be it enacted, That nothing herein
contained shall be deemed, construed or taken to extend to the im-
prisonment of any person before the first day of June, one thousand
six hundred and seventy-nine, or to anything advised, procured or
otherwise done relating to such imprisonment; anything herein
contained to the contrary notwithstanding.
XVI. Provided also, That if any person or persons at any time
resiant in this realm, shall have committed any capital offence in
Scotland or in Ireland, or in any of the islands or foreign planta-
tions of the king,- his heirs or successors, where he or she ought to
be tried for such offence, such person or persons may be sent to
such place, there to receive such trial in such manner as the same
might have been used before the making of this act ; anything
herein contained to the contrary notwithstanding.
XVII. Provided also, and be it enacted, That no person or
persons shall be sued, impleaded, molested or troubled for any of.
fence against this act, unless the party offending be sued or im-
pleaded for the same within two years at the most, after such time
wherein the offence shall be committed, in case the party grieved
AND SELF-GOVERNMENT. 497
shall not be then in prison ; and if he shall be in prison, then
within the space of two years after the decease of the person im-
prisoned, or his or her delivery out of prison, which shall first
happen.
XVIII. And to the intent no person may avoid his trial at the
assizes or general gaol delivery, by procuring his removal before
the assizes, at such time as he cannot be brought back to receive
his trial there ; (2) Be it enacted, that after the assizes proclaimed
for that county where the prisoner is detained, no person shall be
removed from the common gaol upon any habeas corpus granted
in pursuance of this act, but upon any such habeas. corpus shall be
brought before the judge of assize in open court, who is thereupon
to do what to justice shall appertain.
XIX. Provided nevertheless, That after the assizes are ended,
any person or persons detained may have his or her habeas corpus
according to the direction and intention of this act.
XX. And be it also enacted by the authority aforesaid, That if
any information, suit or action shall be brought or exhibited against
any person or persons for any offence committed or to be com-
mitted against the form of this law, it shall be lawful for such de-
fendants to plead the general issue, that they are not guilty or that
they owe nothing, and to give such special matter in evidence to
the jury that shall try the same, which matter being pleaded had
been good and sufficient matter in law to have discharged the said
defendant or defendants against the said information, suit or action,
and the same matter shall be then as available to him or them, to
all intents and purposes, as if he or they had sufficiently pleaded,
set forth or alleged the same matter in bar, or discharge of such
information, suit or action.
XXI. And because many times persons charged with petty trea-
son or felony, or accessories thereunto, are committed upon sus-
picion only, whereupon they are bailable or not, according as the
circumstances making out that suspicion are more or less weighty,
which are best known to the justices of the peace that committed
the persons, and have the examination before them, or to other
justices of the peace in the county ; (2) Be it therefore enacted,
That where any person shall appear to be committed by any judge
or justice of the peace, and charged as accessory before the fact to
any petty treason or felony, or upon suspicion thereof, or with
32
498 ON CIVIL LIBERTY.
suspicion of petty treason or felony, which petty treason or felony
shall be plainly and specially expressed in the warrant of commit-
ment, that such person shall not be removed or bailed by virtue of
this act, or in any other manner than they might have been before
the making of this act.
APPENDIX TIL
BILL OF RIGHTS, PASSED 1 WILLIAM AND MARY, SESS. 2,
CH. 2, 1689.
AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND
SETTLING THE SUCCESSION OF THE CROWN.
1 W. & M. 1689.
WHEREAS the lords spiritual and temporal, and commons assem-
bled at Westminster, lawfully, fully and freely representing all the
estates of the people of this realm, did, upon the thirteenth day of
February, in the year of our Lord one thousand six hundred and
eighty-eight, present unto their majesties then called and known
by the name and style of William and Mary, prince and princess
of Orange, being present in their proper persons, a certain declara-
tion in writing, made by the said lords and commons, in the words
following, viz. :
Whereas the late king James the Second, by the assistance of
divers evil counsellors, judges and ministers employed by him, did
endeavor to subvert and extirpate the protestant religion, and the
laws and liberties of this kingdom
1. By assuming and exercising a power of dispensing with and
suspending the laws, and the execution of laws, without consent of
parliament.
2. By committing and prosecuting divers worthy prelates, for
humbly petitioning to be excused from concurring to the said as-
sumed power.
3. By issuing and causing to be executed a commission under
the great seal for erecting a court called the court of commission-
ers for ecclesiastical causes.
4. By levying money for and to the use of the crown, by pre-
tence of prerogative, for other time and in other manner than the
same was granted by parliament.
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500 ON CIVIL LIBERTY
5. By raising and keeping a standing army within this kingdom
in time of peace, without consent of parliament, and quartering
soldiers contrary to law.
6. By causing several good subjects, being protestants, to be
disarmed, at the same time when papists were both armed and em-
ployed, contrary to law.
7. By violating the freedom of election of members to serve in
parliament.
8. By prosecutions in the court of king's bench, for matters and
causes cognizable only in parliament ; and by divers other arbi-
trary and illegal courses.
9. And whereas of late years, partial, corrupt and unqualified
persons have been returned and served on juries in trials, and par-
ticularly clivers jurors in trials for high treason, which were not
freeholders.
10. And excessive bail hath been required of persons committed
in criminal cases, to elude the benefit of the laws made for the
liberty of the subjects.
11. And excessive fines have been imposed, and illegal and cruel
punishments inflicted.
12. And several grants and promises made of fines and forfeit-
ures, before any conviction or judgment against the persons upon
whom the same were to be levied.
All which are utterly and directly contrary to the known laws
and statutes, and freedom of this realm.
And whereas the said late king James the Second having abdi-
cated the government, and the throne being thereby vacant, his
highness the prince of Orange (whom it hath pleased almighty
God to make the glorious instrument of delivering the kingdom
from popery and arbitrary power) did (by the advice of the lords
spiritual and temporal, and divers principal persons of the com-
mons) cause letters to be written to the lords spiritual and tempo-
ral, being protestants, and other letters to the several counties,
cities, universities, boroughs, and cinque-ports, for the choosing of
such persons to represent them as were of right to be sent to par-
liament, to meet and sit at Westminster, upon the two and twen-
tieth day of January, in this year one thousand six hundred eighty
and eight, in order to such an establishment, as that their religion,
laws and liberties might not again be in danger of being subverted :
upon which letters, elections have been accordingly made ;
AND SELF-GOVERNMENT. 501
And thereupon the said lords spiritual and temporal, and com-
mons, pursuant to their respective letters and elections, being now
assembled in a full and free representative of this nation, taking
into their most serious consideration the best means for attaining
the ends aforesaid, do, in the first place (as their ancestors in like
case have usually done), for the vindicating and asserting their an-
cient rights and liberties, declare
1. That the pretended power of suspending of laws, or the exe-
cution of laws, by regal authority, without consent of parliament,
is illegal.
2. That the pretended power of dispensing with laws, or the
execution of laws, by regal authority, as it hath been assumed and
exercised of late, is illegal.
3. That the commission for erecting the late court of commis-
sioners for ecclesiastical causes, and all other commissions and
courts of like nature, are illegal and pernicious.
4. That levying money for or to the use of the crown, by pre-
tence of prerogative, without grant of parliament, for longer time
or in other manner than the same is or shall be granted, is illegal.
5. That it is the right of the subjects to petition the king, and
all commitments and prosecutions for such petitioning are illegal.
6. That the raising or keeping a standing army within the king-
dom in time of peace, unless it be with consent of parliament, is
against law.
t. That the subjects which are protestants may have arms for
their defence suitable to their conditions, and as allowed by law.
8. That election of members of parliament ought to be free.
9. That the freedom of speech, and debates or proceedings in
parliament, ought not to be impeached or questioned in any court
or place out of parliament.
10. That excessive bail ought not to be required, nor excessive
fines imposed; nor cruel and unusual punishments inflicted.
11. That jurors ought to be duly impanelled and returned, and
jurors which pass upon men in trials for high treason, ought to be
freeholders.
12. That all grants and promises of fines and forfeitures of par-
ticular persons before conviction, are illegal and void.
13. And that for redress of all grievances, and for the amending,
strengthening and preserving of the laws, parliaments ought to be
held frequently.
502 ON CIVIL LIBERTY
And they do claim, demand and insist upon all and singular the
premises, as their undoubted rights and liberties ; and that no de-
clarations, judgments, doings or proceedings, to the prejudice of
the people in any of the said premises, ought in any wise to be
drawn hereafter into consequence or example.
To which demand of their rights they are particularly encou-
raged by the declaration of his highness the prince of Orange, as
being the only means for obtaining a full redress and remedy
therein.
Having therefore an entire confidence, That his said highness
the prince of Orange will perfect the deliverance so far advanced
by him, and will still preserve them from the violation of their
rights, which they have here asserted, and from all other attempts
upon their religion, rights and liberties :
II. The said lords spiritual and temporal, and commons, assem-
bled at Westminster, do resolve. That William and Mary, prince
and princess of Orange, be, and be declared, king and queen of
England, France and Ireland, and the dominions thereunto belong-
ing, to hold the crown and royal dignity of the said kingdoms and
dominions to them, the said prince and princess, during their lives,
and the life of the survivor of them ; and that the sole and full ex-
ercise of the regal power be only in, and executed by, the said
prince of Orange, in the names of the said prince and princess,
during their joint lives ; and after their deceases, the said crown
and royal dignity of the said kingdoms and dominions to be to the
heirs of the body of the said princess ; and for default of such
issue, to the princess Anne of Denmark, and the heirs of her body ;
and for default of such issue, to the heirs of the body of the said
prince of Orange. And the lords spiritual and temporal,, and
commons, do pray the said prince and princess to accept the same
accordingly.
III. And that the oaths hereafter mentioned be taken by all
persons of whom the oaths of allegiance and supremacy might be
required by law, instead of them ; and that the said oaths of alle-
giance and supremacy be abrogated.
I, A. B., do sincerely promise and swear, That I will be faithful
and bear true allegiance to their majesties, king William and queen
Mary:
So help me God.
AND SELF-GOVERNMENT. 503
I, A. B., do swear, That I do from my heart abhor, detest and
abjure, as impious and heretical, that damnable doctrine and posi-
tion, That princes excommunicated or deprived by the pope, or any
authority of the see of Rome, m#y be deposed or murdered by
their subjects, or any other whatsoever. And I do declare, That
no foreign prince, person, prelate, state or potentate hath, or ought
to have, any jurisdiction, power, superiority, pre-eminence or au-
thority, ecclesiastical or spiritual, within this realm :
So help me God.
IV. Upon which their said majesties did accept the crown and
royal dignity of the kingdoms of England, France and Ireland,
and the dominions thereunto belonging, according to the resolu-
tion and desire of the said lords and commons contained in the
said declaration.
V. And thereupon their majesties were pleased, That the said
lords spiritual and temporal, and commons, being the two houses
of parliament, should continue to sit, and with their majesties'
royal concurrence make effectual provision for the settlement of the
religion, laws and liberties of this kingdom, so that the same for
the future might not be in danger again of being subverted ; to
which the said lords spiritual and temporal, and commons, did
agree and proceed to act accordingly.
VI. Now in pursuance of the premises, the said lords spiritual
and temporal, and commons, in parliament assembled, for the rati-
fying, confirming and establishing the said declaration, and the
articles, clauses, matters and things therein contained, by the force
of a law made in due form by authority of parliament, do pray
that it may be declared and enacted, That all and singular the
rights and liberties asserted and claimed in the said declaration,
are the true, ancient and indubitable rights and liberties of the
people of this kingdom, and so shall be esteemed, allowed, ad-
judged, deemed and taken to be, and that all and every the par-
ticulars aforesaid shall be firmly and strictly holden and observed,
as they are expressed in the said declaration ; and all officers and
ministers whatsoever shall serve their majesties and their successors
according to the same in all times to come.
Sections VII., VIII., IX., X., are irrelevant.
XI. All which their majesties are contented and pleased shall
be declared, enacted and established by authority of this present
504 ON CIVIL LIBERTY.
parliament, and shall stand, remain and be the law of this realm
forever ; and the same are by their said majesties, by and with the
advice and consent of the lords spiritual and temporal, and com-
mons, in parliament assembled, and by the authority of the same,
declared, enacted and established accordingly.
XII. And be it further declared and enacted by the authority
aforesaid, That from and after this present session of parliament
no dispensation by non obstante of or to any statute, or any part
thereof, shall be allowed, but that the same shall be held void and
of no effect, except a dispensation be allowed of in such statute,
and except in such cases as shall be specially provided for by one
or more bill or bills to be passed during this present session of
parliament.
Section XIII. irrelevant.
APPENDIX Till.
A DECLARATION BY THE REPRESENTATIVES OF THE UNITED
STATES OF AMERICA IN CONGRESS ASSEMBLED.
WHEN, in the course of human events, it becomes necessary for
one people to dissolve the political bands which have connected
them with another, and to assume, among the powers of the earth,
the separate and equal station to which the laws of nature and of
nature's God entitle them, a decent respect to the opinions of man-
kind requires that they should declare the causes which impel them
to the separation.
We hold these truths to be self-evident, that all men are created
equal ; that they are endowed by their Creator with certain unali-
enable rights ; that among these, are life, liberty, and the pursuit
of happiness. That, to secure these rights, governments are insti-
tuted among men, deriving their just powers from the consent of
the governed ; that, whenever any form of government becomes
destructive of these ends, it is the right of the people to alter or
to abolish it, and to institute a new government, laying its founda-
tion on such principles, and organizing its powers in such form as
to them shall seem most likely to effect their safety and happiness.
Prudence, indeed, will dictate that governments long established
should not be changed for light and transient causes ; and, accord-
ingly, all experience hath shown that mankind are more disposed
to suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But, when a
long train of abuses and usurpations, pursuing invariably the same
object, evinces a design to reduce them under absolute despotism,
it is their right, it is their duty, to throw off such government, and
to provide new guards for their future security. Such has been
the patient sufferance of these colonies, and such is now the neces-
sity which constrains them to alter their former systems of govern-
ment. The history of the present king of Great Britain is a his-
(505)
506 ON CIVIL LIBERTY
tory of repeated injuries and usurpations, all having, in direct
object, the establishment of an absolute tyranny over these States.
To prove this, let facts be submitted to a candid world :
He has refused his assent to laws the most wholesome and ne-
cessary for the public good.
He has forbidden his governors to pass laws of immediate and
pressing importance, unless suspended in their operation tilfc his
assent should be obtained; and, when so suspended, he has utterly
neglected to attend to them.
He has refused to pass other laws for the accommodation of
large districts of people, unless those people would relinquish the
right of representation in the legislature ; a right inestimable to
them, and formidable to tyrants only.
He has called together legislative bodies at places unusual, un-
comfortable, and distant from the repository of their public
records, for the sole purpose of fatiguing them into compliance
with his measures.
He has dissolved representative houses repeatedly, for opposing,
with manly firmness, his invasions on the rights of the people.
He has refused, for a long time after such dissolutions, to cause
others to be elected ; whereby the legislative powers, incapable of
annihilation, have returned to the people at large for their exer-
cise ; the state remaining, in the meantime, exposed to all the
danger of invasion from without, and convulsions within.
He has endeavored to prevent the population of these States ;
for that purpose, obstructing the laws for the naturalization of
foreigners ; refusing to pass others to encourage their migration
hither, and raising the conditions of new appropriations of lands.
He has obstructed the administration of justice, by refusing his
assent to laws for establishing judiciary powers.
He has made judges dependent on his will alone, for the tenure
of their offices, and the amount and payment of their salaries.
He has erected a multitude of new offices, and sent hither
swarms of officers to harass our people and eat out their substance.
He has kept among us, in times of peace, standing armies, with-
out the consent of our legislature.
He has affected to render the military independent of, and su-
perior to, the civil power.
He has combined, with others, to subject us to a jurisdiction
AND SELF-GOVERNMENT. 507
foreign to our constitution, and unacknowledged by our laws ; giv-
ing his assent to their acts of pretended legislation :
For quartering large bodies of armed troops among us :
For protecting them, by a mock trial, from punishment, for
any murders which they should commit on the inhabitants of these
States :
For cutting off our trade with all parts of the world :
For imposing taxes on us without our consent :
For depriving us, in many cases, of the benefits of trial by
jury :
For transporting us beyond the seas to be tried for pretended
offences :
For abolishing the free system of English laws in a neighboring
province, establishing therein an arbitrary government, and en-
larging its boundaries, so as to render it at once an example and
fit instrument for introducing the same absolute rule into these
colonies :
For taking away our charters, abolishing our most valuable
laws, and altering, fundamentally, the powers of our governments :
For suspending our own legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.
He has abdicated government here, by declaring us out of his
protection, and waging war against us.
He has plundered our seas, ravaged our coasts, burnt our towns,
and destroyed the lives of our people.
He is, at this time, transporting large armies of foreign merce-
naries to complete the works of death, desolation, and tyranny,
already begun, with circumstances of cruelty and perfidy scarcely
paralleled in the most barbarous ages, and totally unworthy the
head of a civilized nation.
He has constrained our fellow-citizens, taken captive on the
high seas, to bear arms against their country, to become the exe-
cutioners of their friends and brethren, or to fall themselves by
their hands.
He has excited domestic insurrection amongst us, and has en-
deavored to bring on the inhabitants of our frontiers, the merciless
Indian savages, whose known rule of warfare is an undistinguished
destruction of all ages, sexes, and conditions.
In every stage of these oppressions, we have petitioned for re-
508 ON CIVIL LIBERTY
i
dress in the most humble terms ; our repeated petitions have been
answered only by repeated injury. A prince, whose character is
thus marked by every act which may define a tyrant, is unfit to be
the ruler of a free people.
Nor have we been wanting in attention to our British brethren.
We have warned them, from time to time, of attempts made by
their legislature to extend an unwarrantable jurisdiction over us.
We have reminded them of the circumstances of our emigration
and settlement here. We have appealed to their native justice
and magnanimity, and we have conjured them, by the ties of our
common kindred, to disavow these usurpations, which would in-
evitably interrupt our connections and correspondence. They, too,
have been deaf to the voice of justice and consanguinity. We
must, therefore, acquiesce in the necessity which denounces our
separation, and hold them, as we hold the rest of mankind, ene-
mies in war, in peace, friends.
We, therefore, the representatives of the United States of Ame-
rica, in General Congress assembled, appealing to the Supreme
Judge of the world for the rectitude of our intentions, do in the
name, and by the authority of the good people of these colonies,
solemnly publish and declare, That these United Colonies are, and
of right ought to be, free and independent States ; that they are
absolved from all allegiance to the British crown, and that all po-
litical connection between them and the state of Great Britain, is,
and ought to be, totally dissolved ; and that, as free and indepen-
dent States, they have full power to levy war, conclude peace,
contract alliances, establish commerce, and to do all other acts
and things which independent states may of right do. And, for
the support of this declaration, with a firm reliance on the protec-
tion of Divine Providence, we mutually pledge to each other our
lives, our fortunes, and our sacred honor.
The foregoing declaration was, by order of Congress, engrossed
and signed by the following members.
JOHN HANCOCK.
NEW HAMPSHIRE. MASSACHUSETTS BAT.
Josiah Bartlett, Samuel Adams,
William Whipple, John Adams,
Matthew Thornton. Robert Treat Paine.
Elbridge Gerry.
AND SELF-GOVERNMENT.
509
RHODE ISLAND.
Stephen Hopkins,
William Ellery,
CONNECTICUT.
Roger Sherman,
Samuel Huntington,
William Williams,
Oliver Wolcott.
NEW YORK.
William Floyd,
Philip Livingston,
Francis Lewis,
Lewis Morris.
NEW JERSEY.
Richard Stockton,
John Witherspoon,
Francis Hopkinson,
John Hart,
Abraham Clark,
PENNSYLVANIA.
Robert Morris,
Benjamin Rush,
Benjamin Franklin,
John Morton,
George Clymer,
James Smith,
George Taylor,
James Wilson,
George Ross.
DELAWARE.
Caesar Rodney,
George Read,
Thomas M'Kean.
MARYLAND.
Samuel Chase,
William Paca,
Thomas Stone,
Charles Carroll, of Carrollton.
VIRGINIA.
George Wythe,
Richard Henry Lee,
Thomas Jefferson,
Benjamin Harrison,
Thomas Nelson, Jun.,
Francis Lightfoot Lee,
Carter Braxton.
NORTH CAROLINA.
William Hooper,
Joseph Hewes,
John Penn.
SOUTH CAROLINA.
Edward Rutledge,
Thomas Hay ward, Jun.,
Thomas Lynch, Jan.,
Arthur Middleton.
GEORGIA.
Button Gwinnett,
Lyman Hall,
George Walton.
Resolved, That copies of the Declaration be sent to the several
assemblies, conventions, and committees, or councils of safety ; and
to the several commanding officers of the continental troops ; that
it be proclaimed in each of the United States, and at the head of
the army.
APPENDIX IX.
ARTICLES OF CONFEDERATION AND PERPETUAL UNION BE-
TWEEN THE STATES.
To all to whom these presents shall come, we, the undersigned
Delegates of the States affixed to our names, send greeting :
Whereas the Delegates of the United States of America in con-
gress assembled, did, on the 15th day of November, in the year of
our Lord 1TT7, and in the second year of the Independence of
America, agree to certain articles of confederation and perpetual
union between the States of New Hampshire, Massachusetts Bay,
Rhode Island and Providence Plantations, Connecticut, New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia, in the words following,
Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Ehode Island
and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia.
ARTICLE I.
The style of this confederacy shall be " The United States of
America. "
ARTICLE II.
Each state retains its sovereignty, freedom, and independence,
and every power, jurisdiction, and right, which is not by this con-
federation expressly delegated to the United States, in congress
assembled.
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ON CIVIL LIBERTY. 511
ARTICLE III.
The said states hereby severally enter into a firm league of
friendship with each other, for their common defence, the security
of their liberties, and their mutual and general welfare ; binding
themselves to assist each other against all force offered to, or at-
tacks made upon them, or any of them, on account of religion,
sovereignty, trade, or any other pretence whatever.
ARTICLE IV.
The better to secure and perpetuate mutual friendship and in-
tercourse among the people of the different states in this Union,
the free inhabitants of each of these states (paupers, vagabonds,
and fugitives from justice excepted) shall be entitled to all privi-
leges and immunities of free citizens in the several states ; and the
people of each state shall have free ingress and regress to and
from any other state, and shall enjoy therein all the privileges of
trade and commerce, subject to the same duties, impositions, and
restrictions, as the inhabitants thereof respectively, provided that
such restriction shall not extend so far as to prevent the removal
of property imported into any state, to any other state of which
the owner is an inhabitant; provided, also, that no imposition,
duties, or restriction, shall be laid by auy state on the property of
the United States, or either of them.
If any person guilty of, or charged with, treason, felony, or
other high misdemeanor in any state shall flee from justice, and be
found in any of the United States, he shall, upon demand of the
governor, or executive power, of the state from which he fled, be
delivered up and removed to the state having jurisdiction of his
offence.
Full faith and credit shall be given in each of these states to the
records, acts, and judicial proceedings, of the courts and magis-
trates of every other state.
ARTICLE V.
For the more convenient management of the general interests of
the United States, delegates shall be annually appointed in such
manner as the legislature of each state shall direct, to meet in con-
gress on the first Monday in November in every year, with a power
512 ON CIVIL LIBERTY
reserved to each state to recall its delegates, or any of them at
any time within the year, and to send others in their stead for the
remainder of the year.
No state shall be represented in congress by less than two, nor
by more than seven members ; and no person shall be capable of
being a delegate for more than three years in any term of six
years ; nor shall any person, being a delegate, be capable of hold-
ing any office under the United States, for which he, or another
for his benefit, receives any salary, fees, or emolument of any kind.
Each state shall maintain its own delegates in any meeting of
the states, and while they act as members of the committee of the
states.
In determining questions in the United States, in congress as-
sembled, each state shall have one vote.
Freedom of speech or debate in congress shall not be impeached
or questioned in any court or place out of congress, and the mem-
bers of congress shall be protected in their persons from arrests
and imprisonments during the time of their going to and from, and
attendance on congress, except for treason, felony, or breach of
the peace.
ARTICLE VI.
No state, without the consent of the United States in congress
assembled, shall send any embassy to, or receive any embassy
from, or enter into any conference, agreement, alliance, or treaty,
with any king, prince, or state ; nor shall any person holding any
office of profit or trust under the United States, or any of them,
accept of any present, emolument, office, or title, of any kind what-
ever, from any king, prince, or foreign state ; nor shall the United
States in congress assembled, or any of them, grant any title of
nobility.
No two or more states shall enter into any treaty, confederation,
or alliance, whatever between them, without the consent of the
United States in congress assembled, specifying accurately the
purposes for which the same is to be entered into, and how long it
shall continue.
No state shall lay any imposts, or duties, which may interfere
with any stipulations in treaties entered into by the United States
in congress assembled, with any king, prince, or state, in pursu-
AND SELF-GOVERNMENT. 513
ance of any treaties already proposed by congress to the courts of
France or Spain.
No vessels of war shall be kept up in time of peace by any state,
except such number only as shall be deemed necessary by the
United States in congress assembled for the defence of such state,
or its trade ; nor shall any body of forces be kept up by any state
in time of peace, except such number only as in the judgment of
the United States in congress assembled shall be deemed requisite
to garrison the forts necessary for the defence of such state ; but
every state shall always keep up a well-regulated and disciplined
militia, sufficiently armed and accoutred, and shall provide, and
have constantly ready for use in public stores, a due number of
field-pieces and tents, and a proper quantity of arms, ammunition,
and camp equipage.
No state shall engage in any war without the consent of the
United States in congress assembled, unless such state be actually
invaded by enemies, or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such
state, and the danger is so imminent as not to admit of a delay
till the United States in congress assembled can be consulted ; nor
shall any state grant commissions to any ships or vessels of war,
nor letters of marque or reprisal, except it be after a declaration
of war by the United States in congress assembled, and then only
against the kingdom, or state, and the subjects thereof, against
which war has been so declared, and under such regulations as
shall be established by the United States in congress assembled,
unless such state be infested by pirates, in which case vessels of war
may be fitted out for that occasion, and kept so long as the danger
shall continue, or until the United States in congress assembled
shall determine otherwise.
ARTICLE VII.
When land forces are raised by any state for the common de-
fence, all officers of, or under the rank of colonel shall be appointed
by the legislature of each state respectively, by whom such forces
shall be raised, or in such manner as such state shall direct, and all
vacancies shall be filled up by the state which first made the ap-
pointment.
33
514 ON CIVIL LIBERTY
ARTICLE VIII.
All charges of war, and all other expenses that shall be in-
curred for the common defence or general welfare, and allowed by
the United States in congress assembled, shall be defrayed out of a
common treasury, which shall be supplied by the several states, in
proportion to the value of all land within each state granted to, or
surveyed for any person, as such land, and the buildings and im-
provements thereon, shall be estimated according to such mode as
the United States in congress assembled shall from time to time
direct and appoint. The taxes for paying that proportion shall
be laid and levied by the authority and direction of the legislatures
of the several states within the time agreed upon by the United
States in congress assembled.
ARTICLE IX.
The United States in congress assembled shall have the sole and
exclusive right and power of determining on -peace and war, ex-
cept in the cases mentioned in the 6th article ; of sending and re-
ceiving ambassadors ; entering into treaties and alliances, provided
that no treaty of commerce shall be made whereby the legislative
power of the respective states shall be restrained from imposing
such imposts and duties on foreigners as their own people are sub-
jected to, or from prohibiting the exportation or importation of
any species of goods or commodities whatsoever; of establishing
rules for deciding in all cases what captures on land or water shall
be legal, and in what manner prizes taken by land or naval forces
in the service of the United States shall be divided or appro-
priated; of granting letters of marque and reprisal in times of
peace ; appointing courts for the trial of piracies and felonies com-
mitted on the high seas, and establishing courts for receiving and
determining finally appeals in all cases of captures, provided that
no member of congress shall be appointed a judge of any of the
said courts.
The United States in congress assembled shall also be the last
resort on appeal in all disputes and differences now subsisting, or
that hereafter may arise, between two or more states, concerning
boundary, jurisdiction, or any other cause whatever which au-
thority shall always be exercised in the manner following : When-
AND SELF-GOVERNMENT. 515
ever the legislative or executive authority, or lawful agent, of any
state in controversy with another shall present a petition to con-
gress, stating the matter in question and praying for a hearing,
notice thereof shall be given, by order of congress, to the legisla-
tive or executive authority of the other state in controversy, and a
day assigned for the appearance of the parties by their lawful
agents, who shall then be directed to appoint, by joint consent,
commissioners or judges to constitute a court for hearing and de-
termining the matter in question ; but, if they cannot agree, con-
gress shall name three persons out of each of the United States,
and from the list of such persons each party shall alternately
strike out one (the petitioners beginning,) until the number shall
be reduced to thirteen ; and from that number not less than seven,
nor more than nine names, as congress shall direct, shall in the
presence of congress be drawn out by lot, and the persons whose
names shall be so drawn, or any five of them, shall be commission-
ers or judges, to hear and finally determine the controversy, so
always as a major part of the judges who shall hear the cause shall
agree in the determination ; and if either party shall neglect to
attend at the day appointed, without showing reasons which con-
gress shall judge sufficient, or being present shall refuse to strike,
the congress shall proceed to nominate three persons out of each
state, and the secretary of congress shall strike in behalf of such
party absent or refusing ; and the judgment and the sentence of
the court, to be appointed in the manner before prescribed, shall be
final and conclusive ; and if any of the parties shall refuse to sub-
mit to the authority of such court, or to appear or defend their
claim or cause, the court shall, nevertheless, proceed to pronounce
sentence or judgment, which shall in like manner be final and de-
cisive the judgment, or sentence, and other proceedings being in
either case transmitted to congress, and lodged among the acts of
congress for the security of the parties concerned ; provided that
every commissioner, before he sits in judgment, shall take an oath
to be administered by one of the judges of the supreme or supe-
rior court of the state where the cause shall be tried, "well and
truly to hear and determine the matter in question according to the
best of his judgment, without favor, affection, or hope of reward ;"
provided, also, that no state shall be deprived of territory for the
benefit of the United States.
516 ON CIVIL LIBERTY
All controversies concerning the private right of soil claimed
under different grants of two or more states, whose jurisdictions, as
they may respect such lands, and the states which passed such
grants are adjusted, the said grants or either of them being at the
same time claimed to have originated antecedent to such settlement
of jurisdiction, shall, on the petition of either- party to the Congress
of the United States, be finally determined as near as may be in
the same manner as is before prescribed for deciding disputes re-
specting territorial jurisdiction between different states.
The United States in Congress assembled shall also have the
sole and exclusive right and po\ver of regulating the alloy and value
of coin struck by their own authority, or by that of the respective
states fixing the standard of weights and measures throughout
the United States regulating the trade and managing all affairs
with the Indians, not members of any of the states, provided that
the legislative right of any state within its own limits be not in-
fringed or violated establishing or regulating post-offices from one
state to another, throughout all the United States, and exacting
such postage on the papers passing through the same as may be
requisite to defray the expenses of the said office appointing all
officers of the land forces, in the service of the United States, ex-
cepting regimental officers appointing all the officers of the naval
forces, and commissioning all officers whatever in the service of the
United States making rules for the government and regulation
of the said land and naval forces, and directing their operations.
The United States, in congress assembled, shall have authority
to appoint a committee, to sit in the recess of congress, to be de-
nominated "A Committee of the States," and to consist of one
delegate from each state ; and to appoint such other committees
and civil officers as may be necessary for managing the general
affairs of the United States under their direction to appoint one
of their number to preside, provided that no person be allowed to
serve in the office of president more than one year in any term of
three years; to ascertain the necessary sums of money to be raised
for the service of the United States, and to appropriate and apply
the same for defraying the public expenses to borrow money, or
emit bills on the credit of the United States, transmitting every
half year to the respective states an account of the sums of money
so borrowed or emitted to build and equip a navy to agree upon
AND SELF-GOVEKNMENT. 517
the number of land forces, and to make requisitions from each state
for its quota, in proportion to the number of white inhabitants in
such state ; which requisition shall be binding, and thereupon the
legislature of each state shall appoint the regimental officers, raise
the men, and clothe, arm, and equip them in a soldier-like man-
ner, at the expense of the United States ; and the officers and
men so clothed, armed, and equipped shall march to the place
appointed, and within the time agreed on by the United States
in congress assembled : But if the United States, in congress
assembled, shall, on consideration of circumstances, judge proper
that any state should not raise men, or should raise a smaller num-
ber than its quota, and that any other state should raise a greater
number of men than the quota thereof, such extra number shall be
raised, officered, clothed, armed, and equipped in the same manner
as the quota of such state, unless the legislature of such state shall
judge that such extra number cannot be safely spared out of the
same, in which case they shall raise, officer, clothe, arm, and equip
as many of such extra number as they judge can be safely spared.
And the officers and men so clothed, armed, and equipped, shall
march to the place appointed, and within the time agreed on by
the United States in congress assembled.
The United States in congress assembled, shall never engage in a
war, nor grant letters of marque and reprisal in time of peace, nor
enter into anytreaties or alliances, norcoiu money, nor regulate the
value thereof, nor ascertain the sums and expenses necessary for the
defence and welfare of the United States, or any of them, nor emit
bills, nor borrow money on the credit of the United States, nor ap-
propriate money, nor agree upon the number of vessels of war, to be
built or purchased, or the number of land or sea forces to be raised,
nor appoint a commander-in-chief of the army or navy, unless nine
states assent to the same : nor shall a question on any other point,
except for adjourning from day to day be determined, unless by the
votes of a majority of the United States in congress assembled.
The congress of the United States shall have power to adjourn
to any time within the year, and to any place within the United
States, so that no period of adjournment be for a longer duration
than the space of six months, and shall publish the journal of their
proceedings monthly, except such parts thereof relating to treaties,
alliances, or military operations, as in their judgment require se-
crecy ; and the yeas and nays of the delegates of each state on any
,518 ON CIVIL LIBERTY
question shall be entered on the journal, when it is desired by any
delegate ; and the delegates of a state, or any of them, at his or
their request, shall be furnished with a transcript of the said jour-
nal, except such parts as are above excepted, to lay before the legis-
latures of the several states.
ARTICLE X.
The committee of the states, or any nine of them, shall be au-
thorized to execute, in the recess of congress, such of the powers
of congress as the United States in congress assembled, by the
consent of nine states, shall, from time to time, think expedient to
vest them with; provided that no power be delegated to the said
committee, for the exercise of which, by the articles of confedera-
tion, the voice of nine states, in the congress of the United States
assembled, is requisite.
ARTICLE XI.
Canada acceding to this confederation, and joining in the mea-
sures of the United States, shall be admitted into, and entitled to
all the advantages of this union : but no other colony shall be ad-
mitted into the same, unless such admission be agreed to by nine
states.
ARTICLE XII.
All bills of credit emitted, moneys borrowed, and debts con-
tracted by, or under the authority of congress, before the assem-
bling of the United States, in pursuance of the present confedera-
tion, shall be deemed and considered as a charge against the United
States, for payment and satisfaction whereof the said United Slates,
and the public faith are hereby solemnly pledged.
ARTICLE XIII.
Every state shall abide by the determinations of the United
States in congress assembled, on all questions which by this con-
federation is submitted to them. And the articles of this confede-
ration shall be inviolably observed by every state, and the union
shall be perpetual ; nor shall any alteration at any time hereafter
be made in any of them ; unless such alteration be agreed to in a
congress of the United States, and be afterwards confirmed by the
legislature of every state.
AND SELF-GOVERNMENT. 519
And whereas, it hath pleased the Great Governor of the World
to incline the hearts of the legislatures we respectively represent
in congress, to approve of, and to authorize us to ratify the said
articles of confederation and perpetual union : Know Ye, that we
the undersigned delegates, by virtue of the power and authority
to us given for that purpose, do by these presents, in the name and
in behalf of our respective constituents, fully and entirely ratify
and confirm each and every of the said articles of confederation
and perpetual union, and all and singular the matters and things
therein contained : And we do further solemnly plight and engage
the faith of our respective constituents, that they shall abide by
the determinations of the United States in congress assembled, on
all questions, which by the said confederation are submitted to
them. And that the articles thereof shall be inviolably observed
by the states we respectively represent, and that the union shall be
perpetual. In witness whereof we have hereunto set our hands in
congress. Done at Philadelphia in the state of Pennsylvania, the
ninth day of July in the year of our Lord 1778, and in the third
year of the Independence of America.
On the part and behalf of the state of New Hampshire :
Josiah Bartlett, John Wentworth, Jun.,
Aug. 8, 1778.
On the part and behalf of the state of Massachusetts Bay :
John Hancock, Francis Dana,
Samuel Adams, James Lovell,
Elbridge Gerry, Samuel Holten.
On the part and behalf of the state of Rhode Island and Pro-
vidence Plantations :
William Ellery, John Collins.
Henry March ant,
On the part and behalf of the state of Connecticut :
Roger Sherman, Titus Hosmer,
Samuel Huntington, Andrew Adams.
Oliver Wolcott,
520 ON CIVIL LIBERTY.
On the part and behalf of the state of New York :
Jas. Duane, William Duer,
Eras. Lewis, Goovr. Morris.
On the part and behalf of the state of New Jersey, November
26, 1778:
Jno. Witherspoon, Nathl. Scudder.
On the part and behalf of the state of Pennsylvania :
Robt. Morris, William Clingan,
Daniel Roberdeau, Joseph Reed,
Jona. Bayard Smith, 22d July, 1778.
On the part and behalf of the state of Delaware :
Tho. M'Kean, Feb. 12, 1779, Nicholas Yan Dyke.
John Dickinson, May 5, 1779.
On the part and behalf of the state of Maryland :
John Hanson, Daniel Carroll,
March 1, 1781. March 1, 1781.
On the part and behalf of the state of Yirginia :
Richard Henry Lee, Jno. Harvie,
John Banister, Francis Lightfoot Lee.
Thomas Adams,
On the part and behalf of the state of North Carolina :
John Penn, Corns. Harnett,
July 21, 1778. Jno. Williams.
On the part and behalf of the state of South Carolina :
Henry Laurens, Richd. Hutson,
William Henry Drayton, Thos. Hayward, Jun.
Jno. Mathews,
On the part and behalf of the state of Georgia :
Jno. Walton, Edwd. Telfair,
24th July, 1778. Edwd. Langworthy.
APPENDIX X.
CONSTITUTION OF THE UNITED STATES
OF AMERICA.
WE, the people of the United States, in order to form a more
perfect Union, establish justice, insure domestic tranquillity, pro-
vide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America.
ARTICLE I.
SECTION 1. All legislative powers herein granted shall be
vested in a congress of the United States, which shall consist of
a senate and house of representatives.
SECTION 2. The house of representatives shall be composed of
members chosen every second year by the people of the several
states, and the electors in each state shall have the qualifications
requisite for electors of the most numerous branch of the state
legislature.
No person shall be a representative who shall not have attained
to the age of twenty-five years, and been seven years a citizen of
the United States, and who shall not, when elected, be an inhabit-
ant of that state in which he shall be chosen.
Representatives and direct taxes shall be apportioned among
the several states which may be included within this Union, accord-
ing to their respective numbers, which shall be determined by adding
to the whole number of free persons, including those bound to ser-
vice for a terra of years, and excluding Indians not taxed, three-
fifths of all other persons. The actual enumeration shall be made
within three years after the first meeting of the congress of the
United States, and within every subsequent term of ten years, in
such manner as they shall by law direct. The number of repre-
sentatives shall not exceed one for every thirty thousand, but each
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522 ON CIVIL LIBERTY
state shall have at least one representative ; and until such enume-
ration shall be made, the state of New Hampshire shall be entitled
to choose three, Massachusetts eight, Rhode Island and Providence
Plantations one, Connecticut five, New York six, New Jersey four,
Pennsylvania eight, Delaware one, Maryland six, Virginia ten,
North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The house of representatives shall choose their speaker, and
other officers ; and shall have the sole power of impeachment.
SECTION 3. The senate of the United States shall be composed
of two senators from each state, chosen by the legislature thereof,
for six years ; and each senator shall have one vote.
Immediately after they shall be assembled in consequence of the
first election, they shall be divided as equally as may be into three
classes. The seats of the senators of the first class shall be vacated
at the expiration of the second year, of the second class at the ex-
piration of the fourth year, and of the third class at the expiration
of the sixth year, so that one-third may be chosen every second
year ; and if vacancies happen by resignation, or otherwise, during
the recess of the legislature of any state, the executive thereof may
make temporary appointments until the next meeting of the legis-
lature, which shall then fill such vacancies.
No person shall be a senator who shall not have attained to the
age of thirty years, and been nine years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that
State for which he shall be chosen.
The Vice-President of the United States shall be president of
the senate, but shall have no vote, unless they be equally divided.
The senate shall choose their other officers, and also a president
pro tempore, in the absence of the vice-president, or when he shall
exercise the office of President of the United States.
The senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirma-
tion. When the President of the United States is tried, the chief
justice shall preside ; and no person shall be convicted without the
concurrence of two-thirds of the members present.
Judgment in case of impeachment shall not extend further than
AND SELF-GOVERNMENT. 523
to removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit, under the United States ; but the
party convicted shall nevertheless be liable and subject to indict-
ment, trial, judgment, and punishment according to law.
SECTION 4. The times, places, and manner of holding elections
for senators and representatives shall be prescribed in each state by
the legislature thereof; but the congress may at any time by law
make or alter such regulations, except as to the places of choosing
senators.
The congress shall assemble at least once in every year, and such
meeting shall be on the first Monday in December, unless they shall
by law appoint a different day.
SECTION 5. Each house shall be the judge of the elections, re-
turns and qualifications of its own members, and a majority of
each shall constitute a quorum to do business ; but a smaller num-
ber may adjourn from day to day, and maybe authorized to compel
the attendance of absent members, in such manner and under such
penalties as each house may provide.
Each house may determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member.
Each house shall keep a journal of its proceedings, and from
time to time publish the same, excepting such parts as may in their
judgment require secrecy ; and the yeas and nays of the members
of either house, on any question, shall, at the desire, of one-fifth of
those present, be entered on the journal.
Neither house, during the session of congress, shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two houses shall be sitting.
SECTION 6. The senators and representatives shall receive a
compensation for their services, to be ascertained by law, and paid
out of the treasury of the United States. They shall in all cases,
except treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the session of their respective
houses, and in going to and returning from the same ; and for any
speech or debate in either house, they shall not be questioned in
any other place.
Xo senator or representative shall, during the time for which he
was elected, be appointed to any civil office under the authority of
524 ON CIVIL LIBERTY
the United States, which shall have been created, or the emolu-
ments whereof shall have been increased during such time ; and no
person holding any office under the United States shall be a mem-
ber of either house during his continuance in office.
SECTION 7. All bills for raising revenue shall originate in the
house of representatives ; but the senate may propose or concur
with amendments as on other bills.
Every bill which shall have passed the house of representatives
and the senate, shall, before it become a law, be presented to the
President of the United States. If he approve, he shall sign it ;
but if not, he shall return it, with his objections, to that house in
which it shall have originated, who shall enter the objections at
large on their journal, and proceed to reconsider it. If, after such
reconsideration, two-thirds of that house shall agree to pass the
bill, it shall be sent, together with the objections, to the other
house, by which it shall likewise be reconsidered, and if approved
by two-thirds of that house, it shall become a law. But in all
such cases the votes of both houses shall be determined by yeas
and nays, and the names of the persons voting for and against the
bill shall be entered on the journal of each house respectively.
If any bill shall not be returned by the president within ten days
(Sundays excepted) after it shall have been presented to him, the
same shall be a law, in like manner as if he had signed it, unless
the congress by their adjournment prevent its return ; in which
case, it shall not be a law. Every order, resolution, or vote, to
which the concurrence of the senate and house of representatives
may be necessary (except on a question of adjournment), shall be
presented to the President of the United States; and before the
same shall take effect, shall be approved by him; or, being disap-
proved by him, shall be repassed by two-thirds of the senate and
house of representatives,. according to the rules and limitations
prescribed in the case of a bill.
SECTIOX 8. The congress shall have power
To lay and collect taxes, duties, imposts, and excises; to pay the
debts and provide for the common defence and general welfare of
the United States ; but all duties, imposts, and excises shall be
uniform throughout the United States :
To borrow money on the credit of the United States :
To regulate commerce with foreign nations, and among the seve-
ral states, and with the Indian tribes :
AND SELF-GOVERNMENT. 525
To establish an uniform rule of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States:
To coin money, regulate the value thereof, and of foreign coin,
and fix the standard of weights and measures :
To provide for the punishment of counterfeiting the securities
and current coin of the United States :
To establish post-offices and post-roads :
To promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries :
To constitute tribunals inferior to the supreme court :
To define and punish piracies and felonies committed on the high
seas, and offences against the law of nations :
To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water :
To raise and support armies ; but no appropriation of money to
that use shall be for a longer term than two years :
To provide and maintain a navy :
To make rules for the government and regulation of the land
and naval forces :
To provide for calling forth the militia to execute the laws of
the Union, suppress insurrections, and repel invasions:
To provide for organizing, arming, and disciplining the militia,
and for governing such part of them as may be employed in the
service of the United States, reserving to the states respectively
the appointment of the officers, and the authority of training the
militia according to the discipline prescribed by congress :
To exercise exclusive legislation, in all cases whatsoever, over
such district (not exceeding ten miles square) as may, by cession
of particular states and the acceptance of congress, become the
seat of the government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature
of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings. And
To make all laws which shall be necessary and proper for car-
rying into execution the foregoing powers, and all other powers
vested by this constitution in the government of the United States,
or in any department or officer thereof.
SECTION 9. The migration or importation of such persons as any
526 ON CIVIL LIBERTY
of the states now existing shall think proper to admit, shall not be
prohibited by the congress prior to the year one thousand eight
hundred and eight; but a tax or duty may be imposed on such im-
portation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be sus-
pended, unless when in cases of rebellion or invasion the public
safety may require it.
No bill of attainder or ex post facto law shall be passed.
No capitation or other direct tax shall be laid, unless in propor-
tion to the census or enumeration hereinbefore directed to be
taken.
No tax or duty shall be laid on articles exported from any
state.
No preference shall be given, by any regulation of commerce or
revenue, to the ports of one state over those of another; nor shall
vessels bound to or from one state be obliged to enter, clear, or pay
duties in another.
No money shall be drawn from the treasury, but in consequence
of appropriations made by law ; and a regular statement and ac-
count of the receipts and expenditures of all public money shall be
published from time to time.
No title of nobility shall be granted by the United States ; and
no person holding any office of profit or trust under them shall,
without the consent of the congress, accept of any present, emolu-
ment, office, or title of any kind whatever, from any king, prince,
or foreign state.
SECTION 10. No state shall enter into any treaty, alliance or
confederation; grant letters of marque and reprisal; coin money;
emit bills of credit ; make anything but gold and silver coin a ten-
der in payment of debts ; pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts, or grant any
title of nobility.
No state shall, without the consent of the congress, lay any im-
posts or duties on imports or exports, except what may be abso-
lutely necessary for executing its inspection laws ; and the net pro-
duce of all duties and imposts, laid by any state on imports or
exports, shall be for the use of the treasury of the United States;
and all such laws shall be subject to the revision and control of
the congress.
AND SELF-GOVERNMENT 527
No state shall, without the consent of congress, lay any duty of
tonnage, keep troops or ships of war in time of peace, enter into
any agreement or compact with another state, or with a foreign
power, or engage in war, unless actually invaded, or in such immi-
nent danger as will not admit of delay.
ARTICLE II.
SECTION 1. The executive power shall be vested in a president
of the United States of America. He shall hold his office during
the term of four years, and, together with the vice-president, chosen
for the same term, be elected as follows :
Each state shall appoint, in such manner as the legislature thereof
may direct, a number of electors, equal to the whole number of
senators and representatives to which the state may be entitled in
the congress ; but no senator or representative, or person holding
an office of trust or profit under the United States, shall be ap-
pointed an elector.
[ l The electors shall meet in their respective states, and vote by bal-
lot for two persons, of whom one at least shall not be an inhabitant of
the same state with themselves. And they shall make a list of all the
persons voted for, and of the number of votes for each ; which list they
shall sign and certify, and transmit sealed to the seat of the government
of the United States, directed to the president of the senate. The pre-
sident of the senate shall, in the presence of the senate and house of
representatives, open all the certificates, and the votes shall then be
counted. The person having the greatest number of votes shall be the
president, if such number be a majority of the whole number of electors
appointed : and if there be more than one who have such majority,
and have an equal number of votes, then the house of representatives
shall immediately choose by ballot one of them for president ; and if no
person have a majority, then from the five highest on the list the said
house shall in like manner choose the president. But in choosing the
president, the votes shall be taken by states, the representation from
each state having one vote. A quorum for this purpose shall consist of
a member or members from two-thirds of the states, and a majority of
all the states shall be necessary to a choice. In every case, after the
choice of the president, the person having the greatest number of votes
of the electors shall be the vice-president. But if there should remain
two or more who have equal votes, the senate shall choose from them by
ballot the vice-president.J
1 This clause within brackets has been superseded and annulled by the
] 2th amendment, on pages 534-35.
i>28 OX CIVIL LIBERTY
The congress may determine the time of choosing the electors,
and the day on which they shall give their votes ; which day shall
be the same throughout the United States
No person except a natural born citizen, or a citizen of the
United States at the time of the adoption of this constitution, shall
be eligible to the office of president ; neither shall any person be
eligible to that office who shall not have attained to the age of
thirty-five years, and been fourteen years a resident within the
United States.
In case of the removal of the president from office, or of his
death, resignation, or inability to discharge the powers and duties
of the said office, the same shall devolve on the vice-president, and
the congress may by law provide for the case of removal, death,
resignation, or inability, both of the president and vice-president,
declaring what officer shall then act as president ; and such officer
shall act accordingly, until the disability b% removed, or a president
shall be elected.
The president shall, at stated times, receive for his services a
compensation, which shall neither be increased nor diminished
during the period for which he shall have been elected ; and he
shall not receive within that period any other emolument from the
United States, or any of them.
Before he enter on the execution of his office, he shall take the
following oath or affirmation :
"I do solemnly swear (or affirm) that I will faithfully execute
the office of President of the United -States, and will, to the best
of my ability, preserve, protect, and defend the Constitution of the
United States."
SECTION 2. The president shall be commander-in-chief of the
army and navy of the United States, and of the militia of the
several states, when called into the actual service of the United
States ; he may require the opinion, in writing, of the principal
officer in each of the executive departments, upon any subject re-
lating to the duties of their respective offices ; and he shall have
power to grant reprieves and pardons for offences against the
United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the
senate, to make treaties, provided two-thirds of the senators pre-
sent concur; and he shall nominate, and by and with the advice
AND SELF-GOVERNMENT. 529
and consent of the senate, shall appoint ambassadors, other public
ministers and consuls, judges of the supreme court, and all other
officers of the United States whose appointments are not herein
otherwise provided for, and which shall be established bylaw ; but
the congress may by law vest the appointment of such inferior offi-
cers, as they think proper, in the president alone, in the courts of
law, or in the heads of departments.
The president shall have power to fill up all vacancies that may
happen during the recess of the senate, by granting commissions
which shall expire at the end of their next session.
SECTION 3. He shall from time to time give to the congress in-
formation of the state of the Union, and recommend to their con-
sideration such measures as he shall judge necessary and expe-
dient ; he may, on extraordinary occasions, convene both houses,
or either of them ; and in case of disagreement between them, with
respect to the time of adjournment, he may adjourn them to such
time as he shall think proper ; he shall receive ambassadors and
other public ministers ; he shall take care that the laws be faith-
fully executed, and shall commission all the officers of the United
States.
SECTION 4. The president, vice-president, and all civil officers of
the United States shall be removed from office on impeachment for,
and conviction of, treason, bribery, or other high crimes and misde-
meanors.
ARTICLE III.
SECTION 1. The judicial power of the United States shall be
vested in one supreme court, and in such inferior courts as the
congress may from time to time ordain and establish. The judges,
both of the supreme and inferior courts, shall hold their offices
during good behavior, and shall, at stated times, receive for their
services a compensation, which shall not be diminished during their
continuance in office.
SECTION 2. The judicial power shall extend to all cases, in law
and equity, arising under this constitution, the laws of the United
States, and treaties made, or which shall be made, under their au-
thority ; to all cases affecting ambassadors, other public ministers,
and consuls ; to all cases of admiralty and maritime jurisdiction ;
to controversies, to which the United States shall be a party ; to
controversies between two or more states ; between a state and
34
530 ON CIVIL LIBERTY
citizens of another state ; between citizens of different states ; be-
tween citizens of the same state claiming lands under grants of
different states, and between a state, or the citizens thereof, and
foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be party, the supreme
court shall have original jurisdiction. In all the other cases before
mentioned, the supreme court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such
regulations as the congress shall make.
The trial of all crimes, except in cases of impeachment, shall be
by jury ; and such trial shall be held in the state where the said
crimes shall have been committed ; but when not committed within
any state, the trial shall be at such place or places as the congress
may by law have directed.
SECTION 3. Treason against the United States shall consist only
in levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or
on confession in open court.
The congress shall have power to declare the punishment of
treason ; but no attainder of treason shall work corruption of
blood, or forfeiture except during the life of the person attainted.
ARTICLE IV.
SECTION 1. Full faith and credit shall be given in each state to
the public acts, records, and judicial proceedings of every other
state. And the congress may by general laws prescribe the man-
ner in which such acts, records, and proceedings shall be proved,
and the effect thereof.
SECTION 2. The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states.
A person charged in any state with treason, felony, or other
crime, who shall flee from justice, and be found in another state,
shall, on demand of the executive authority of the state from
which he fled, be delivered up, to be removed to the state having
jurisdiction of the crime.
No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
AND SELF-GOVERNMENT. 531
shall be delivered up on claim of the party to whom such service
or labor may be due.
SECTION 3. New states may be admitted by the congress into
this Union ; but no new state shall be formed or erected within
the jurisdiction of any other state; nor any state be formed by the
junction of two or more states, or parts of states, without the con-
sent of the legislatures of the states concerned, as well as of the
congress.
The congress shall have power to dispose of and make all need-
ful rules and regulations respecting the territory or other property
belonging to the United States ; and nothing in this constitution
shall be' so construed as to prejudice any claims of the United
States, or of any particular state.
SECTION 4. The United States shall guarantee to every state in
this Union a republican form of government, and shall protect
each of them against invasion ; and on application of the legisla-
ture, or of the executive (when the legislature cannot be convened),
against domestic violence.
ARTICLE V.
The congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this constitution ; or, on
the application of the legislatures of two-thirds of the several
states, shall call a convention for proposing amendments, which, in
either case, shall be valid to all intents and purposes, as part of
this constitution, when ratified by the legislatures of three-fourths
of the several states, or by conventions in three-fourths thereof, as
the one or the other mode of ratification may be proposed by the
congress ; provided that no amendment which may be made prior
to the year one thousand eight hundred and eight, shall in any
manner affect the first and fourth clauses in the ninth section of the
first article ; and that no state, without its consent, shall be de-
prived of its equal suffrage in the senate.
ARTICLE VI.
All debts contracted and engagements entered into, before the
adoption of this constitution, shall be as valid against the United
States, under this constitution, as under the Confederation.
This constitution, and the laws of the United States which shall
532 ON CIVIL LIBERTY
be made in pursuance thereof; and all treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme law of the land ; and the judges in every state shall
be bound thereby, anything in the constitution or laws of any state
to the contrary notwithstanding.
The senators and representatives before mentioned, and the mem-
bers of the several state legislatures, and all executive and judicial
officers, both of the United States and of the several states, shall
be bound by oath or affirmation to support this constitution ; but
no religious test shall ever be required as a qualification to any
office or public trust under the United States.
ARTICLE VII.
The ratification of the conventions of nine states shall be suffi-
cient for the establishment of this constitution between the states
so ratifying the same.
DONE in convention, by the unanimous consent of the states
present, the seventeenth day of September, in the year of our Lord
one thousand seven hundred and eighty-seven, and of the indepen-
dence of the United States of America the twelfth. In witness
whereof, we have hereunto subscribed our names,
GEO. WASHINGTON,
President and deputy from Virginia.
[Here follow the names of the signers from the different states.
See next page for additions and amendments.]
AND SELF-GOVERNMENT. 533
Articles in addition to, and amendment of, the Constitution of the
United States of America, proposed by Congress, and ratified
by the Legislatures of the several States, pursuant to the fifth
article of the original Constitution.
ARTICLE I.
Congress shall make no law respecting an establishment of re-
ligion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress
of grievances.
ARTICLE II.
A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed.
ARTICLE III.
No soldier shall, in time of peace, be quartered in any house,
without the consent of the owner ; nor in time of war, but in a
manner to be prescribed by law.
ARTICLE IV.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated ; and no warrants shall issue, but upon pro-
bable cause, supported by oath or affirmation, and particularly de-
scribing the place to be searched, and the persons or things to be
seized.
ARTICLE V.
No person shall be held to answer for a capital, or otherwise in-
famous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb ; nor shall be compelled, in any
criminal case, to be a witness against himself; nor be deprived of
life, liberty, or property, without due process of law ; nor shall
534 ON CIVIL LIBERTY
private property be taken for public use, without just compensa-
tion.
ARTICLE VI.
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and dis-
trict wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation ; to be confronted with
the witnesses against him ; to have compulsory process for obtain-
ing witnesses in his favor, and to have the assistance of counsel
for his defence.
ARTICLE VII.
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any
court of the United States, than according to the rules of the
common law.
ARTICLE VIII.
Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
ARTICLE IX.
The enumeration in the constitution of certain rights, shall not
be construed to deny or disparage others retained by the people.
ARTICLE X.
The powers not delegated to the United States by the constitution,
nor prohibited by it to the states, are reserved to the states re-
spectively, or to the people.
ARTICLE XI.
The judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or
by citizens or subjects of any foreign state.
ARTICLE XII.
The electors shall meet in their respective states, and vote by
ballot for president and vice-president, one of whom, at least, shall
AND SELF-GOVERNMENT. 535
not be an inhabitant of the same state with themselves ; they shall
name in their ballots the person voted for as president, and in dis-
tinct ballots the person voted for as vice-president ; and they shall
make distinct lists of all persons voted for as president, and of all
persons voted for as vice-president, and of the number of votes for
each, which list they shall sign and certify and transmit sealed
to the seat of government of the United States, directed to the
president of the senate ; the president of the senate shall, in
presence of the senate and house of representatives, open all the
certificates and the votes shall then be counted ; the person having
the greatest number of votes for president, shall be the president,
if such number be a majority of the whole number of electors ap-
pointed ; and if no person have such majority, then from the per-
sons having the highest numbers not exceeding three on the list of
those voted for as president, the house of representatives shall
choose immediately, by ballot, the president. But in choosing the
president, the votes shall be taken by states, the representation
from each state having one vote ; a quorum for this purpose shall
consist of a member, or members from two-thirds of the states,
and a majority of all the states shall be necessary to a choice.
And if the house of representatives shall not choose a president
whenever the right of choice shall devolve upon them, before the
fourth day of March next following, then the vice-president shall
act as president, as in the case of the death or other constitutional
disability of the president. The person having the greatest num-
ber of votes as vice-president, shall be the vice-president, if such
number be a majority of the whole number of electors appointed ;
and if no person have a majority, then from the two highest num-
bers on the list the senate shall choose the vice-president; a
quorum for the purpose shall consist of two-thirds of the whole
number of senators, and a majority of the whole number shall
be necessary to a choice. But no person constitutionally ineli-
gible to the office of president shall be eligible to that of vice-
president of the United States.
APPENDIX XL
THE FRENCH CONSTITUTION, ADOPTED AND PROCLAIMED ON
THE TWENTY-FOURTH OF JUNE, 1793.
THE FIRST REPUBLICAN CONSTITUTION.
HAD the space permitted it, I would have given all the French
constitutions, from the first in the first revolution, to that now
called the constitution of the empire. As it is, I must restrict
myself to the following selection.
I have copied the translation of the first republican constitution
of France from a work by Mr. Bernard Roelker, of the New
York bar, The Constitutions of France, monarchical and Republi-
can, together with Brief Historical Remarks, relating to their
Origin, and the late Orleans Dynasty, Boston, Mass. 1848.
DECLARATIONS OF THE RIGHTS OF MAX AND OF
CITIZENS.
The French people, convinced that oblivion and contempt of
the natural rights of man are the only causes of calamities in
the world, has resolved to explain these sacred and inalienable
rights in a solemn declaration, that all citizens, by comparing
always the acts of the government with the whole social union,
may never suffer themselves to be oppressed and dishonored by
tyranny; that the people may always have before its eyes the fun-
damental pillars of its liberty and welfare, and the authorities the
standard of their duties, and the legislator the object of his pro-
blem.
It accordingly makes, in the presence of the Highest. Being, the
following declaration of the rights of man and of the citizens.
(536)
ON CIVIL LIBERTY. 537
1. The object of society is the general welfare. Government is
instituted, to insure to man the free use of his natural and inalien-
able rights.
2. These rights are equality, liberty, security, property.
3. All men are equal by nature and before the law.
4. Law is the free and solemn proclamation of the general will ;
it is the same for all, be it protective or penal ; it can command
only what is just and beneficial to society, and prohibit only what
is injurious to the same.
5. All citizens are equally admissible to all public offices. Free
nations are in their elections guided by no other considerations
than virtues and talents.
6. Freedom is the power, by which man can do what does not
interfere with the rghts of another ; its basis is nature, its stand-
ard is justice ; its protection is law ; its moral boundary is the
maxim : Do not unto others what you do not wish they should do
unto you.
Y. The right of communicating thoughts and opinions, either
through the press, or in any other manner ; the right of assem-
bling peaceably ; the free exercise of religion, cannot be pro-
hibited.
The necessity publicly to claim these rights, presupposes the
actual existence of despotism, or the fresh recollection of the
same.
8. Security rests on the protection given by society to each of
its members, for the preservation of his person, his rights and his
property.
9. Law must protect the general and the individual liberty
against the oppression of those who govern.
10. No one can be accused, arrested, or kept in close custody,
except in the cases specified by law, and according to the pre-
scribed forms; every citizen who, by virtue of the law, is sum-
moned before court or arrested, must immediately obey; every
refusal shows him to be guilty.
11. Every order against a person, in cases and forms not speci-
fied by law, is arbitrary and tyrannical ; the person against whom
such an order should be executed by force, has the right to resist it
by force.
12. Those who cause, aid in, sign, execute or cause to be exe-
cuted, such arbitrary acts, are culpable, and must be punished.
538 ON CIVIL LIBERTY
13. Since every man is deemed to be innocent, until he be
proved guilty, if his condemnation will necessarily lead to arrest,
every severity, not required for the forthcoming of his person, is
strictly prohibited.
14. Only he who has been first heard or legally summoned, can
be condemned and punished, and this only by a law promulgated
before the commission of the crime. A law which would punish
transgressions, committed before its publication, would be tyranny ;
and it would be a crime to give retrospective force to law.
15. Law shall order punishments only which are unavoidably
necessary ; the punishments shall be suitable to the crime, and
beneficial to society.
16. The right of property is that by which every citizen can en-
joy his goods and his income, the fruits of his labor and industry,
and dispose of them at pleasure.
17. Xo kind of occupation, employment and trade can be pro-
hibited to citizens.
18. Every one may dispose of his services and time at pleasure ;
but he can neither sell himself nor be sold. His person is inalien-
able property. The law does not recognize a state of servitude;
an agreement only for services rendered and a compensation for
them, can exist between him who labors and him who employs him.
19. Without his consent, no one can be deprived of the least
part of his property, unless it be required by a general and legally
specified necessity, and then only on condition of a just and pre-
viously fixed indemnity.
20. No tax can be laid except for the common welfare. All
citizens have the right to have a voice in the laying of taxes, to
watch over the application of them, and to have an account ren-
dered thereof.
21. The public support of the poor is a sacred obligation. So-
ciety takes upon itself the support of needy citizens, either by
giving work to them, or by giving subsistence to those who are
unable to work
22. Instruction is a want for all. Society shall further with all
its power the progress of the public welfare, and regulate instruc-
tion according to the wants of all citizens.
23. Social guarantee rests on the activity of all to secure to
each one the enjoyment and the preservation of his rights. This
guarantee rests on the sovereignty of the people.
AND SELF-GOVERNMENT. 539
24. It cannot exist, if the boundaries of public administration
be not definitely specified by law, and unless the responsibility of
all public officers be secured.
25. Sovereignty belongs to the people. It is one and indivisible,
imprescriptible and inalienable.
26. No single part of the people can exercise the power of the
whole people ; but every assembled section of the sovereign peo-
ple enjoys the right to express its will with perfect freedom.
2t. Every individual who would assume the sovereignty shall be
at once condemned to death by the free men.
28. The people have the right to revise, amend, and alter their
constitution. One generation cannot bind succeeding generations
to its laws.
29. Every citizen has the right of taking part in the legislation,
and of appointing his representatives or agents.
30. Public functions are in their nature temporary ; they can-
not be considered as distinctions, nor as rewards, but as obliga-
tions.
31. The offences of the representatives of the people and of its
agents, shall not be unpunished. No one has the right to hold
himself more inviolable than the other citizens.
32. The right of presenting petitions to the public authorities
can in no case be interdicted, abolished or limited.
33. Resistance to oppression is the inference from the other
rights of man.
34. It is oppression of the whole society, if but one of its mem-
bers be oppressed. Oppression of every single member exists,
when the whole of society is oppressed.
35. When government violates the rights of the people, insur-
rection of the people and of every single part of it, is the most
sacred of its rights and the highest of its duties.
(Signed) COLLOT D'HERBOIS, President.
DURAND MAILLANE, Ducos, MAULLE,
CHARLES DE LA CROIX, GOSSUIN, P. A. LALOY,
Secrataries.
540 ON CIVIL LIBERTY
CONSTITUTION
OP THE TWENTY-FOURTH OP JUNE, 1793.
OP THE REPUBLIC.
1. The French Republic is one and indivisible.
OF THE DIVISION OP THE PEOPLE.
2. The French people is, for the purpose of exercising its sove-
reignty, divided into primary assemblies according to cantons.
3. For the purpose of administration and justice, it is divided
into departments, districts, and municipalities.
OF THE RIGHT OF CITIZENSHIP.
4. Every man born and living in France, of twenty-one years of
age, and every alien, who has attained the age of twenty-one,
and has been domiciled in France one year, and lives from his
labor ;
or has acquired property ;
or has married a French woman ;
or has adopted a child ;
or supports an aged man ;
and finally every alien whom the legislative body has declared as
one well deserving of the human race, are admitted to exercise the
rights of a French citizen.
5. The right of exercising the rights of citizen is lost :
by being naturalized'in a foreign state ;
by accepting offices of state, or favors which do not proceed
from a democratic government ;
by being sentenced to dishonorable or corporal punishments,
till reinstated in the former state.
6. The exercise of the rights of citizens is suspended :
by being in a state of accusation ;
by a sentence in contumaciam, so long as this sentence has
not been rescinded.
AND SELF-GOVERNMENT. 541
OF THE SOVEREIGNTY OF THE PEOPLE.
7. The sovereign people embraces the whole of French citizens.
8. It chooses its deputies directly.
9. It delegates to electors the choice of administrators, pub-
lic civil judges, penal judges, and judges of cassation.
10. It deliberates on laws.
OF THE PRIMARY ASSEMBLIES.
11. The primary assemblies are formed of the citizens who have
resided six months in a canton.
12. They consist of no less than 200 and no more than 600
citizens, called together for the purpose of voting.
13. They are organized, after a president, secretaries and col-
lectors of votes have been appointed.
14. They exercise their own police.
15. No one is allowed to appear there with arms.
16. The elections are made either by secret or loud voting, at
the pleasure of each voter.
17. A primary meeting can in no case prescribe more than one
manner of voting.
18. The collectors of votes note down the votes of those citizens
who cannot write, and yet prefer to vote secretly.
19. The votes on laws are given by " Yes," and "No."
20. The elections of primary assemblies are published in the
following manner :
The united citizens in the primary assembly at , number-
ing - votes, vote for, or vote against, by a majority of ,
OF THE NATIONAL REPRESENTATION.
21. Population is the only basis of national representation.
22. For every 40,000 individuals, one deputy is chosen.
23. Every primary assembly which is formed of from 39,000 to
41,000 individuals, chooses directly a deputy.
24. The choice is effected by an absolute majority of votes.
25. Every assembly makes an abstract