- Introduction to the Third Edition.
- On Civil Liberty and Self-government.
- Chapter I.: Introductory.
- Chapter II.: Definitions of Liberty.
- Chapter III.: The Meaning of Civil Liberty.
- Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
- Chapter V.: Anglican Liberty.
- Chapter VI.: National Independence—Personal Liberty.
- Chapter VII.: Bail.—Penal Trial.
- Chapter VIII.: High Treason.
- Chapter IX.: Communion.—Locomotion, Emigration.
- Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
- Chapter XI.: Quartering Soldiers.—The Army.
- Chapter XII.: Petition.—Association.
- Chapter XIII.: Publicity.
- Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
- Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
- Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
- Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
- Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
- Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
- Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
- Chapter XXI.: Self—Government.
- Chapter XXII.: American Liberty.
- Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
- Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
- Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
- Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
- Chapter XXVII.: Effects and Uses of Institutional Self-government.
- Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
- Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
- Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
- Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
- Chapter XXXII.: Imperatorial Sovereignty.
- Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
- Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
- Chapter XXXV.: Vox Populi Vox Dei.
- Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
- Appendix II.: A Paper On the Abuse of the Pardoning Power.
- Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
- Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
- Appendix V.: The Petition of Right. 1
- 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.” 1
- Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
- Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
- Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
- Appendix X.: Constitution of the United States of America.
- Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
- Declarations of the Rights of Man and of Citizens.
- Constitution of the Twenty-fourth of June, 1793.
- Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
- Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
- Appendix XIV.: The Present Constitution of France.
- Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
- Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.
We live at a period when it is the duty of reflecting men to ponder conscientiously these important questions: In what does civil liberty consist? How is it maintained? What are its means of self-diffusion, and under what forms do its chief dangers present themselves?
Our age, marked by restless activity in almost all departments of knowledge, and by struggles and aspirations before unknown, is stamped by no characteristic more deeply than by a desire to establish or extend freedom in the political societies of mankind. At no previous period, ancient or modern, has this impulse been felt at once so strongly and by such extensive numbers. The love of civil liberty is so leading a motive in our times, that no man who does not understand what civil liberty is, has acquired that self-knowledge without which we do not know where we stand, and are supernumeraries or instinctive followers, rather than conscious, working members of our race, in our day and generation.
The first half of our century has produced several hundred political constitutions, some few of substance and sterling worth, many transient like ephemeral beings, but all of them testifying to the endeavors of our age, and plainly pointing out the high problem that must be solved; many of them leaving roots in despite of their short existence, which some day will sprout and prosper. It is in history as in nature. Of all the seeds that germinate, but few grow up to be trees, and of all the millions of blossoms, but thousands, or even hundreds, ripen into fruit.
Changes, frequently far greater than are felt by those who stand in the midst of them, have taken place; violent convulsions have shaken large and small countries, and blood has been shed—that blood which has always flowed before great ideas could settle into actual institutions, or before the yearnings of humanity could become realities. Every marked struggle in the progress of civilization has its period of convulsion. Our race is in that period now, and thus our times resemble the epoch of the Reformation.
Many who unreservedly adhere to the past, or who fear its evils less than those of change, resist the present longings of our kind, and seem to forget that change is always going on, whether we will or not. States consist of living beings, and life is change. Others seem to claim a right of revolution for governments, under the name of coup d'état, but deny it to the people; and large portions of the people have overleaped civil liberty itself. They daringly disavow it, and pretend to believe that they find the solution of the great problem of our times either in an annihilation of individuality, or in an apotheosis of individual man, and preach communism, individual sovereignty, or the utmost concentration of all power and political action in one Cæsar. “Parliamentary liberty” is a term sneeringly used in whole countries to designate what they consider an obsolete encumbrance and decaying remnants of a political phase belonging to the past. The representative system is laughed at, and the idol of monarchical or popular absolutism is draped anew, and worshipped by thousands as if it were the latest avatar of their political god. What, but a lustre or two ago, would have been universally considered impossible, has come to pass; Rousseau's hatred of representative government is loudly and largely professed in France, not only by the army and the faction which holds power, but also by the French republican of extreme views, to whom nothing is more odious than decentralized self-government; and the two seem perfectly to agree with the views lately proclaimed on an important occasion, that the essence of political civilization consists in universal suffrage and the code Napoleon, with which, and a moderately strong army, it would be easy to conquer Great Britain.
There are not a few in our own country who, seeing the perversion of principles and political corruption, follow the besetting fallacy of men, and seek salvation from one evil in its opposite, as if the means of escaping death by fire were freezing to death.
We must find our way through all these mazes. This is one of our duties, because it has pleased Providence to cast our lot in the middle of the nineteenth century, and because an earnest man ought to understand, above all other social things, his own times.
Besides these general considerations, weighty as they are, there are others which press more immediately upon ourselves. Most of us descend in blood, and all of us politically, from that nation to which has been assigned, in common with ourselves, the high duty of developing modern civil liberty, and whose manliness and wisdom, combined with a certain historical good fortune, which enabled it to turn to advantage elements that proved sources of evil elsewhere, have saved it from the blight of absorbing centralization. England was the earliest country to put an end to feudal isolation, while still retaining independent institutions, and to unite the estates into a powerful general parliament, able to protect the nation against the crown. There, too, centuries ago, trials for high treason were surrounded with peculiar safeguards, besides those known in common criminal trials, in favor of the accused, an exception the very reverse of which we observe in all other European countries down to the most recent times, and in most countries to this day. In England we first see applied in practice, and on a grand scale, the idea which came originally from the Netherlands, that liberty must not be a boon of the government, but that government must derive its rights from the people. Here, too, the people always clung to the right to tax themselves; and here, from the earliest times, the administration of justice has been separated from the other functions of government, and devolved upon magistrates set apart for this end, a separation not yet found in all countries. In England, power of all kind, even of the crown, has ever bowed, at least theoretically, to the supremacy of the law; and that country may claim the imperishable glory of having formed a national representative system of two houses, governed by a parliamentary law of their own, with that important element, at once conservative and progressive, of a lawful, loyal opposition. It is that country which alone saved judicial and political publicity, when secrecy prevailed everywhere else; which retained a self-developing common law and established the trial by jury. In England, the principles of self-government were not swept away, and all the chief principles and guarantees of her Great Charter and the Petition of Right have passed over into our constitutions.
We belong to the Anglican race, which carries Anglican principles and liberty over the globe, because wherever it moves, liberal institutions and a common law full of manly rights and instinct with the principle of an expansive life, accompany it. We belong to that race whose obvious task it is, among other proud and sacred tasks, to rear and spread civil liberty over vast regions in every part of the earth, on continent and isle. We belong to that tribe which alone has the word Self-Government. We belong to that nation whose great lot it is to be placed, with the full inheritance of freedom, on the freshest soil in the noblest site between Europe and Asia, a nation young, whose kindred countries, powerful in wealth, armies, and intellect, are old. It is a period when a peaceful migration of nations, similar in the weight of numbers to the warlike migration of the early middle ages, pours its crowd into the lap of our more favored land, there to try, and at times to test to the utmost, our institutions—institutions which are our foundations and buttresses, as the law which they embody and organize is our sole and sovereign master.
These are the reasons why it is incumbent upon every American again and again to present to his mind what his own liberty is, how he must guard and maintain it, and why, if he neglect it, he resembles the missionary that should proceed to convert the world without Bible or prayer-book. These are the reasons why I feel called upon to write this work, in addition to what I have given long ago in another place on the subjects of Justice, Law, the State, Government and Sovereignty, on Liberty and Right, and to which, therefore, I must refer my reader for many preliminary particulars; and these, too, are the reasons why I ask for an attention corresponding to the sense of responsibility with which I approach the great theme of political vitality—the leading subject of Western history and the characteristic stamp and feature of our race, our age, our own country and its calling.
definitions of liberty.
A distinguished writer has said that every one desires liberty, but it is impossible to say what it is. If he meant by liberty, civil liberty, and that it is impossible to give a definition of it, using the term definition in its strictest sense, he was right; but he was mistaken if he intended to say that we cannot state and explain what is meant by civil liberty in certain periods, by certain tribes, and that we cannot collect something general from these different views. Civil liberty does not fare worse in this respect than all other terms which designate the collective amount of different applications of the same principle, such as Fine Arts, Religion, Property, Republic. The definitions of all these terms imply the use of others variable in their nature. The time, however, is passed when, as in the age of scholastic philosophy, it was believed that everything was strictly definable, and must be compressed within the narrow limits of an absolute definition before it could be entitled to the dignity of a thorough discussion. The hope of being able absolutely to define things that belong either to the commonest life or the highest regions, betrays a misconception of human language, which itself is never absolute except in mathematics. It misleads. Bacon, so illustrious as a thinker, has two dicta which it will be well for us to remember throughout this discussion. He says: “Generalities are barren, and the multiplicity of single facts present nothing but confusion. The middle principles alone are solid, orderly, and fruitful;” and in another part of his immortal works he states that “civil knowledge is of all others the most immersed in matter and the hardliest reduced to axioms.” We may safely add, “and expressed in definitions.” It would be easy, indeed, and correct, as far as it would go, to say: Civil liberty is the idea of liberty, which is untrammeled action, applied to the sphere of politics; but although this definition might be called “orderly,” it would certainly neither be “solid” nor “fruitful,” unless a long discussion should follow on what it means in reality and practice.
This does by no means, however, affect the importance of investigating the subject of civil liberty and of clearly presenting to our minds what we mean by it, and of what elements it consists. Disorders of great public inconvenience, even bloodshed and political crimes, have often arisen from the fact that the two sacred words, Liberty and People, were freely and passionately used without a clear and definite meaning being attached to them. A people that loves liberty can do nothing better to promote the object of its love than deeply to study it; and in order to be able to do this, it is necessary to analyze it, and to know the threads which compose the valued texture.
In a general way, it may here be stated as an explanation—not offered as a definition—that when the term Civil Liberty is used, there is now always meant a high degree of mutually guaranteed protection against interference with the interests and rights held dear and important by large classes of civilized men or by all the members of a state, together with an effectual share in the making and administration of the laws as the best apparatus to secure that protection, and constituting the most dignified government of men who are conscious of their rights and of the destiny of humanity. We understand by civil liberty not only the absence of individual restraint, but liberty within the social system and political organism—a combination of principles and laws which acknowledge, protect, and favor the dignity of man. But what are these guarantees, these interests and rights? Who are civilized men? In what does that share consist? Which are the men that are conscious of their rights? What is the destiny of humanity? Who are the large classes?
I mean by civil liberty that liberty which plainly results from the application of the general idea of freedom to the civil state of man, that is, to his relations as a political being—a being obliged by his nature and destined by his Creator to live in society. Civil liberty is the result of man's twofold character, as an individual and social being, so soon as both are equally respected.
All men desire freedom of action. We have this desire, in some degree, even in common with the animal, where it manifests itself at least as a desire for freedom of motion. The fiercest despot desires liberty as much as the most ardent republican; indeed, the difficulty is that he desires it too much—selfishly, exclusively. He wants it for himself alone. He has not elevated himself to the idea of granting to his fellows the same liberty which he claims for himself, and of desiring to be limited in his own power of trenching on the same liberty of others. This is one of the greatest ideas to which man can rise. In this mutual grant and check lies the essence of civil liberty, as we shall presently see more fully, and in it lies its dignity. It is a grave error to suppose that the best government is absolutism with a wise and noble despot at the head of the state. As to consequences it is even worse than absolutism with a tyrant at its head. The tyrant may lead to reflection and resistance; the wisdom and brilliancy, however, of the government of a great despot or dictator deceive and unfit the people for a better civil state. This is at least true with reference to all tribes not utterly lost in despotism, as the Asiatics are. The periods succeeding those of great and brilliant despots have always been calamitous. The noblest human work, nobler even than literature and science, is broad civil liberty, well secured and wisely handled. The highest ethical and social production of which man, with his inseparable moral, jural, æsthetic and religious attributes, is capable, is the comprehensive and minutely organic self-government of a free people; and a people truly free at home, and dealing in fairness and justice with other nations, is the greatest, unfortunately also the rarest, subject offered in all the breadth and length of history.
In the definitions of civil liberty which philosophers or publicists have, nevertheless, endeavored to give, they seem to have fallen into one or more of the following errors. Some have confounded liberty, the status of the freeman as opposed to slavery, with civil liberty. But every one is aware that while we speak of freemen in Asia, meaning only non-slaves, we would be very unwilling to speak of civil liberty in that part of the globe. The ancients knew this distinction perfectly well. There were the Spartans, constituting the ruling body of citizens, and enjoying what they would have called, in modern language, civil liberty, a full share in the government of the polity; there were Helots; and there were Lacedæmonian people, who were subject, indeed, to the sovereign body of the Spartans, but not slaves. They were freemen, compared to the Helots; but subjects, as distinguished from the Spartans. This distinction is very plain, but the confusion has not only frequently misled in times past, but is actually going on to this day in many countries.
Others have fallen into the error of substituting a different word for liberty, and believed that they had thus defined it; while others, again, have confounded the means by which liberty is secured in certain communities, with liberty itself. Some, again, have been led, unawares, to define an idea wholly different from civil liberty, while imagining that they were giving the generics and specifics of the subject.
The Roman lawyers say that liberty is the power (authority) of doing that which is not forbidden by the law. That the supremacy of the law and exclusion of arbitrary interference is a necessary element of all liberty, every one will readily admit; but if no additional characteristics be given, we have, indeed, no more than a definition of the status of a non-slave. It does not state whence the laws ought to come, or what spirit ought to pervade them. The same lawyers say: Whatever may please the ruler has the force of law. They might have said with equal correctness: Freeman is he who is directly subject to the emperor; slave, he who is subject to the emperor through an intermediate and individual master. It settles nothing as to what we call liberty, as little as the other dictum of the civil law, which divides all men into freemen and slaves. The meaning of freeman, in this case, is nothing more than non-slave; while our word freeman, when we use it in connection with civil liberty, means not merely a negation of slavery, but the enjoyment of positive and high civil privileges and rights.
It is remarkable that an English writer of the last century, Dr. Price, makes the same simple division of slavery and liberty, although it leads him to very different results. According to him, liberty is self-determination or self-government, and every interruption of self-determination is slavery. This is so extravagant, that it is hardly worth our while to show its fallacy. Civil liberty is liberty in a state of society; that is, in a state of union with equals; consequently, limitation of self-determination is one of the necessary characteristics of civil liberty.
Cicero says: Liberty is the power of living as thou willest. This does not apply to civil liberty. It would apply to savage insulation. If it was meant for political liberty, it would have been necessary to add, “so far as the same liberty of others does not limit your own living as you choose.” But we always live in society, so that this definition can have a value only as a most general one, to serve as a starting-point, in order to explain liberty if applied to different spheres. Whether this was the probable intention of a practical Roman, I need not decide.
Libertas came to signify, in the course of time, and in republican Rome, simply republican government, abolition of royalty. We have advanced beyond this idea. The most sanguinary pages of history have taught us that a kingless government is not, on that account alone, a republic, if the term republic is intended to comprehend the idea of self-government in any degree. France had as absolute and as stringently concentrated a government under her so-called republics, as under any of her kings. To classify governments, with reference to liberty, into monarchies and republics, is an error in principle. An Englishman who lives under a monarchy, for such certainly his royal republic is called, enjoys an amount of self-government and individual liberty far greater than the Athenian ever possessed or is established in any republic of South America.
The Greeks likewise gave the meaning of a distinct form of government to their word for liberty. Eleutheria, they said, is that polity in which all are in turn rulers and ruled. It is plain that there is an inkling of what we now call self-government in this adaptation of the word, but it does not designate liberty as we understand it. For it may happen, and indeed it has happened repeatedly, that although the rulers and ruled change, those that are rulers are arbitrary and oppressive whenever their turn arrives; and no political state of things is more efficient in preparing the people to pass over into despotism, by a sudden turn, than this alternation of arbitrary rule. If this definition really defined civil liberty, it would have been enjoyed in a high degree by those communities in the middle ages, in which constant changes of factions and persecutions of the weaker parties were taking place. Athens, when she had sunk so low that the lot decided the appointment to all important offices, would at that very period have been freest, while in fact her government had become plain democratic absolutism, one of the very worst of all governments, if, indeed, the term government can be properly used of that state of things which exhibits Athens after the times of Alexander, not like a bleeding and fallen hero, but rather like a dead body, on which birds and vermin make merry.
Not wholly dissimilar to this definition is the one we find in the French Political Dictionary, a work published in 1848, by leading republicans, as this term was understood in France. It says, under the word liberty: “Liberty is equality, equality is liberty.” If both were the same, it would be surprising that there should be two distinct words. Why were both terms used in the famous device, “Liberty, Equality, Fraternity,” if the first two are synonymous, yet an epigrammatic brevity was evidently desired? Napoleon distinguished between the two very pointedly, when he said to Las Cases that he gave to the Frenchmen all the circumstances allowed, namely, equality, and that his son, had he succeeded him, would have added liberty. The dictum of Napoleon is mentioned here merely to show that he saw the difference between the two terms. Equality, of itself, without many other elements, has no intrinsic connection with liberty. All may be equally degraded, equally slavish, or equally tyrannical. Equality is one of the pervading features of Eastern despotism. A Turkish barber may be made vizier far more easily than an American hair-dresser can be made a commissioner of roads, but there is not on that account more liberty in Turkey. Diversity is the law of life; absolute equality is that of stagnation and death.
A German author of a work of mark begins it with this sentence: “Liberty—or justice, for where there is justice there is liberty, and liberty is nothing else than justice—has by no means been enjoyed by the ancients in a higher degree than by the moderns.” Either the author means by justice something peculiar, which ought to be enjoyed by every one, and which is not generally understood by the term, in which case the whole sentence is nugatory, or it expresses a grave error, since it makes equivalents of two things which have received two different names, simply because they are distinct from one another. The two terms would not even be allowed to explain each other in a dictionary.
Liberty has not unfrequently been defined as consisting in the rule of the majority, or it has been said, Where the people rule there is liberty. The rule of the majority, of itself, indicates the power of a certain body; but power is not liberty. Suppose the majority bid you drink hemlock, is there liberty for you? Or suppose the majority give away liberty, and establish despotism? It has been done again and again: Napoleon III. claims his crown by right of election by the overwhelming majority of Frenchmen, and perpetuates his government by universal suffrage, as he says. Granting, for the sake of argument, that there was what we call a bona fide election, and that there is now existing an efficient universal suffrage, there is no man living who would vindicate liberty for present France. Even the imperial government periodically proclaims that it cannot yet establish liberty, because France is distracted by factions, by “different nations,” as an imperial dignitary lately expressed it in an official speech.
We might say with greater truth, that where the minority is protected, although the majority rule, there, probably, liberty exists. But in this latter case it is the protection, or, in other words, rights beyond the reach of the majority which constitute liberty, not the power of the majority. There can be no doubt that the majority ruled in the French massacres of the Protestants; was there liberty in France on that account? All despotism, without a standing army, must be supported or acquiesced in by the majority. It could not stand otherwise. If the definition be urged, that where the people rule there is liberty, we must ask at once, What people, and how rule? These intended definitions, therefore, do not define.
Other writers have said: “Civil liberty consists in the responsibility of the rulers to the ruled.” It is obvious that this is an element of all civil liberty; but the question, What responsibility is meant? is an essential one; nor does this responsibility alone suffice by any means to establish civil liberty The Dey of Algiers used to be elected by the soldiery, who deposed him if he did not suit; but there was no liberty in Algiers, not even for the electing soldiery. The idea of the best government, repeatedly urged by a distinguished French publicist, Mr. Girardin, is, that all power should be centred in an elective chief magistrate, who by frequent election should be made responsible to the people—in fact, an elective despotism. Is there an American or Englishman living who would call such a political monstrosity freedom, even if the elected despot would allow himself to be voted upon a second time? This conception of civil liberty was the very one which Louis Napoleon published in his proclamation issued after the coup d'état, and in which he tells the people that he leaves their fate in their own hands! Many Frenchmen voted for him and for these fundamental principles of a new government, but those who did so, voted for him for the very reason that they considered liberty dangerous and inadmissible. This definition, then, is peculiarly incorrect.
Again, it has been said, liberty is the power of doing all that we ought to be allowed to do. But who allows? What ought to be allowed? Even if these questions were answered, it would not define liberty. Is the imprisoned homicide free, although we allow him to do all that which he ought to be allowed to do? No despot, if not positively insane, would ask for more power. It is on the very ground that more freedom ought not to be allowed to the subject, for his own benefit and the welfare of the empire, that the greatest despots and even tyrants have asserted their power; nor does a father desire more power over his child, but he does not pretend to confound parental power with the establishment of liberty.
Bodinus, whom every scholar of political science remembers with respect, said that true liberty consists in nothing else than the undisturbed enjoyment of one's goods and the absence of apprehension that wrong be done to the honor and the life of one's self, of one's wife and family. He who knows the times of French history when this jurist wrote his work on the republic, sees with compassion what led his mind to form this definition; nor is it denied that undisturbed enjoyment of property, as well as personal safety, constitute very important objects sought to be obtained by civil liberty; but it is the firmly-established guarantees of these enjoyments which constitute portions of civil liberty. Haroun al Rashid may have allowed these enjoyments, but the Arabians had not civil liberty under him. It is very painful to observe that, in the middle of the nineteenth century, a writer could be reduced to declare before the Institute of France, in an elaborate essay, that this definition of liberty by Bodinus is the best ever given.
Montesquieu says: “Philosophical liberty consists in the exercise of one's will, or at least (if we must speak of all systems) in the opinion according to which one exercises his will. Political liberty consists in the security, or at least in the opinion which one has of one's security.” He continues: “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 depends.”
That security is an element of liberty has been acknowledged; that just penal laws, and a carefully protected penal trial, are important ingredients of civil liberty, will be seen in the sequel; but it cannot be admitted that that great writer gives a definition of liberty in any way adequate to the subject. We ask at once, What security? Nations frequently rush into the arms of despotism for the avowed reason of finding security against anarchy. What else made the Romans so docile under Augustus? Those French who insist upon the “neces sity” of Louis Napoleon, do it on the avowal that anarchy was impending; but no one of us will say that Augustus was the harbinger of freedom, or that the French emperor allows the people any enjoyment of liberty. If, however, Montesquieu meant the security of those liberties which Algernon Sidney meant when he said, “The liberties of nations are from God and nature, not from kings”—in that case he has not advanced the discussion, for he does not say in what they consist.
If, on the other hand, the penal law, in which it must be supposed Montesquieu included the penal trial, be made the chief test of liberty, we cannot help observing that a decent penal trial is a discovery in the science of government of the most recent date. The criminal trials of the Greeks and Romans, and of the middle ages, were deficient both in protecting the accused and society, and, without trespassing, we may say that in most cases they were scandalous, according to our ideas of justice. Must we then say, according to Montesquieu, that liberty never dwelt in those states?
To pass from a great writer to one much his inferior, I shall give Dr. Paley's definition of civil liberty. He says: “Civil liberty is the not being restrained by any law but what conduces in a greater degree to the public welfare.” I should hardly have mentioned this definition, but that the work from which it is taken is still in the hands of thousands, and that the author has obviously shaped and framed it with attention. Who decides on what public welfare demands? Is that no important item of civil liberty? Who makes the law? Suffice it to say that the definition may pass for one of a good government in general, that is, one which befits the given circumstances; but it does not define civil liberty. A Titus, a benevolent Russian Czar, a wise dictator, a conscientious Sultan, a kind master of slaves, ordain no restraint but what they think is required by the general welfare; yet to say that the Romans under Titus, the Russian, the Asiatic, the slave, is on that account in the enjoyment of civil liberty, is such a perversion of language that we need not dwell upon this definition, surprising even in one who does not generally distinguish himself by unexceptionable definitions.
The first (monarchical) French constitution of September 3, 1791, says: “Liberty consists in the right to do everything that does not injure others. Therefore, the practice of the natural rights of each man has no other limits than those which secure the other members of society in the enjoyment of the same rights. These limits can only be determined by law.” The last sentence makes all depend on the law; consequently we must ask again, Who makes the law, and are there no limits necessary to the law itself?
Nothing is more striking in history, it seems to me, than a comparison of this declaration and of the “Rights of Men” with the British Petition of Right, whether we consider them as fruits or as seeds.
The second (republican) constitution of June 24, 1793, says: “Liberty is that faculty according to which it belongs to man to do that which does not interfere with the rights of others; it has for its basis, nature; for its rule, justice; for its protection, the law; its moral limit is the maxim, Do not to another that which thou dost not wish him to do to thyself.
This definition sufficiently characterizes itself.”
The Constitution of the United States has no definition of liberty. Its framers thought no more of defining it in that instrument, than people going to be married would stop to define what is love.
We almost feel tempted to close this list of definitions with the words with which Lord Russell begins his chapter on liberty. He curtly says: “Many definitions have been given of liberty. Most of these deserve no notice.”
Whatever the various definitions of civil liberty may be, we take the term in its usual adaptation among modern civilized nations, in which it always means liberty in the political sphere of man. We use it in that sense in which freemen, or those who strive to be free, love it; in which bureaucrats fear it and despots hate it; in a sense which comprehends what has been called public liberty and personal liberty; and in conformity with which all those who cherish and those who disrelish it distinctly feel that, whatever its details may be, it always means a high degree of untrammeled political action in the citizen, and an acknowledgment of his dignity and his important rights by the government which is subject to his positive and organic, not only to his roundabout and vague influence.
This has always been felt; but more is necessary. We ought to know our subject. We must answer, then, this question: In what does civil liberty truly consist?
the meaning of civil liberty.
Liberty, in its absolute sense, means the faculty of willing and the power of doing what has been willed, without influence from any other source, or from without. It means self-determination; unrestrainedness of action.
In this absolute meaning, there is but one free being, because there is but one being whose will is absolutely independent of any influence but that which he wills himself, and whose power is adequate to his absolute will—who is almighty. Liberty, self-determination, unrestrainedness of action, ascribed to any other being, or applied to any other sphere of action, has necessarily a relative and limited, therefore an approximative sense only. With this modification, however, we may apply the idea of freedom to all spheres of action and reflection.
If we apply the idea of self-determination to the sphere of politics, or to the state, and the relations which subsist between it and the individual, and between different states, 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 upon the principles of common justice and morality, and that it be allowed to rule itself, or that it have what the Greeks chiefly meant by the word autonomy. The term state, at the same time, means a society of men, that is, of beings with individual destinies and responsibilities from which arise individual rights, that show themselves the clearer and become more important, as man advances in political civilization. Since, then, he is obliged and destined to live in society, it is necessary to prevent these rights from being encroached upon by his associates. Since, however, not only the individual rights of man become more distinctly developed with advancing civilization, but also his social character and all mutual dependence, this necessity of protecting each individual in his most important rights, or, which is the same, of checking each from interfering with each, becomes more important with every progress he makes.
Lastly, the idea of the state involving the idea of government, that is, of a certain contrivance with coercing power superior to the power of the individual, the idea of self-determination necessarily implies protection of the individual against encroaching power of the government, or checks against government interference. And again, society as a unit having its objects, ends, and duties, liberty includes a proper protection of government, as well as an efficient contrivance to coerce it to carry out the views of society and to obtain its objects.
We come thus to the conclusion that liberty, applied to political man, practically means, in the main, protection or checks against undue interference, whether this be from individuals, from masses, or from government. The highest amount of liberty comes to signify the safest guarantees of undisturbed legitimate action, and the most efficient checks against undue interference. Men, however, do not occupy themselves with that which is unnecessary. Breathing is unquestionably a right of each individual, proved by his existence; but, since no power has yet interfered with the undoubted right of respiration, no one has ever thought it necessary to guarantee this elementary right. We advance then a step farther in practically considering civil liberty, and find that it chiefly consists in guarantees (and corresponding checks) of those rights which experience has proved to be most exposed to interference, and which men hold dearest and most important.
This latter consideration adds a new element. Freemen protect their most important rights, or those rights and those attributes of self-determination, which they hold to be most essential to their idea of humanity; and as this very idea of humanity comprehends partly some ideas common to men of all ages, when once conscious of their humanity, and partly other ideas, which differ according to the view of humanity itself which may prevail at different periods, we shall find, in examining the great subject of civil freedom, that there are certain permanent principles met with wherever we discover any aspiration to liberty; and that, on the other hand, it is rational to speak of ancient, medieval, or modern liberty, of Greek or Roman, Anglican and Gallican, Pagan and Christian, American and English liberty. Certain tribes or nations, moreover, may actually aim at the same objects of liberty, but may have been led, in the course of their history, and according to the variety of circumstances produced in its long course, to different means to obtain similar ends. So that this fact, likewise, would evolve different systems of civil liberty, either necessarily or only incidentally so. Politics are like architecture, which is determined by the objects the builder has in view, the materials at his disposal, and the desire he feels of manifesting and revealing ideas and aspirations in the material before him. Civil liberty is the idea of liberty in connection with politics, and must necessarily partake of the character of, or intertwine itself with, the whole system of politics of a given nation.
This view, however correct, has, nevertheless, misled many nations. It is true, that the system of politics must adapt itself to the materials and destinies of a nation; but this very truth is frequently perverted by rulers who wish to withhold liberty from the people, and do it on the plea that the destiny of the nation is conquest, or concentrated action in different spheres of civilization, with which liberty would interfere. In the same manner are, sometimes, whole portions of a people, or even large majorities, misled. They seem to think that there is a fate written somewhere beyond the nation itself, and independent of its own morality, to which everything, even justice and liberty, must be sacrificed. It is at least a very large portion of the French that thus believes the highest destiny of France to consist in ruling as the first power in Europe, and who openly say that everything must bend to this great destiny. So are many among us, who seem to believe that the highest destiny of the United States consists in the extension of her territory—a task in which, at best, we can only be imitators, while, on the contrary, our destiny is one of its own, and of a substantive character.
At the present stage of our inquiry, however, we have not time to occupy ourselves with these aberrations.
All that is necessary to vindicate at present is, that it is sound and logical to speak of eternal principles of liberty, and at the same time of ancient and modern liberty, and that there may be, and often must be, various systems of civil liberty, though they need not, on that account, differ as to the intensity of liberty which they guarantee.
That Civil Liberty, or simply Liberty, as it is often called, naturally comes to signify certain measures, institutions, guarantees or forms of government, by which people secure or hope to secure liberty, or an unimpeded action in those civil matters, or those spheres of activity which they hold most important, appears even from ancient writers. When Aristotle, in his work on politics, speaks of liberty, he means certain peculiar forms of government, and he uses these as tests, to decide whether liberty does or does not exist in a polity which he contemplates at the time. In the Latin language Libertas came to signify what we call republic, or a non-regal government. Respublica did not necessarily mean the same as our word Republic, as our term Commonwealth may mean a republic—a commonwealth man meant a republican in the English revolution —but it does not necessarily do so. When we find in Quintilian the expression, Asserere libertatem reipublica, we clearly see that respublica does not necessarily mean republic, but only when the commonwealth, the system of public affairs, was what we now call a republic. Since this, however, actually was the case during the best times of Roman history, it was natural that respublica received the meaning of our word republic in most cases.
The term liberty had the same meaning in the middle ages, wherever popular governments supplanted monarchical, often where they superseded aristocratic polities. Liberty and republic became in these cases synonymous.
ancient and modern liberty.—ancient, medieval, and modern states.
That which the ancients understood by liberty differed essentially from what we moderns call civil liberty. Man appeared to the ancients in his highest and noblest character when they considered him as a member of the state or as a political being. Man could rise no higher in their view. Citizenship was in their eyes the highest phase of humanity. Aristotle says in this sense, the state is before the individual. With us the state, and consequently the citizenship, remain means—all-important ones, indeed, but still means—to obtain still higher objects, the fullest possible development of humanity in this world and for the world to come. There was no sacrifice of individuality to the state too great for the ancients. The greatest political philosophers of antiquity unite in holding up Sparta as the best regulated commonwealth—a communism in which the individual was sacrificed in such a degree, that to the most brilliant pages of all history she has contributed little more than deeds of bravery and salient anecdotes of stoic heroism. Greece has rekindled modern civilization, in the restoration of letters. The degenerate keepers of Greek literature and art, who fled from Constantinople when it was conquered by the Turks, and settled in Western Europe, were nevertheless the harbingers of a new era. So great was Grecian knowledge and civilization even in this weakened and crippled state!Yet in all that intellectuality of Greece which lighted our torch in the fifteenth and sixteenth centuries, there is hardly a single Lacedaemonian element.
Plato, when he endeavors to depict a model republic, ends with giving us a communism, in which even individual marriage is destroyed for his higher classes.
We, on the other hand, acknowledge individual and primordial rights, and seek one of the highest aims of civil liberty in the most efficient protection of individual action, endeavor, and rights. I have dwelt upon this striking and instructive difference at length in my work on Political Ethics, where I have endeavored to support the opinion here stated by historical facts and passages of the ancients. I must refer the reader, therefore, to that part of the work; but there is a passage which seems to me so important for the present inquiry, as well as for another which will soon occupy our attention, that, unable to express myself better than I have done in the mentioned work, I must beg leave to insert it here. It is this:—
“We consider the protection of the individual as one of the chief subjects of the whole science of politics. The πολιτιχῆἐπιστήμη or political science of the ancients, does not occupy itself with the rights of the individual. The ancient science of politics is what we would term the art of government, that is, ‘the art of regulating the state, and the means of pre serving and directing it.’ The ancients set out from the idea of the state, and deduce every relation of the individual to it from this first position. The moderns acknowledge that the state, however important and indispensable to mankind, how ever natural, and though of absolute necessity, still is but a means to obtain certain objects, both for the individual and for society collectively, in which the individual is bound to live by his nature. The ancients had not that which the moderns understand by jus naturale, or the law which flows from the individual rights of man as man, and serves to ascertain how, by means of the state, those objects are obtained which justice demands for every one. On what supreme power rests, what the extent and limitation of supreme power ought to be, according to the fundamental idea of the state,—these questions have never occupied the ancient votaries of political science.
“Aristotle, Plato, Cicero, do not begin with this question. Their works are mainly occupied with the discussion of the question, Who shall govern? The safety of the state is their principal problem; the safety of the individual is one of our greatest. No ancient, therefore, doubted the extent of supreme power. If the people possessed it, no one ever hesitated in allowing to them absolute power over every one and everything. If it passed from the people to a few, or was usurped by one, they considered, in many cases, the acquisition of power unlawful, but never doubted its unlimited extent. Hence in Greece and Rome the apparently inconsistent, yet in reality natural, sudden transitions from entirely or partially popular governments to absolute monarchies; while in modern states, even in the absolute monarchies, there exists a certain acknowledgment of a public law of individual rights, of the idea that the state, after all, is for the protection of the individual, however ill conceived the means to obtain this object may be.
“The idea that the Roman people gave to themselves, or had a right to give to themselves, their emperors, was never entirely abandoned, though the soldiery arrogated to themselves the power of electing the masters. * * * Yet the moment that the emperor was established on his throne, no one doubted his right to the absolute supreme power, with whatever violence it was used.
“Liberty, with the ancients, consisted materially in the degree of participation in government, ‘where all are in turn the ruled and the rulers.’ Liberty, with the moderns, consists less in the forms of authority, which are with them but means to obtain the protection of the individual and the undisturbed action of society in its minor and larger circles. Ἐλευθερια, indeed, frequently signifies, with the Greek political writers, equality; that is, absolute equality; and ὶσότης, equality, as well as ἐλευθερία, are terms actually used for democracy, by which was understood what we term democratic absolutism, or unlimited despotic power in the demos, which, practically, can only mean the majority, without any guarantee of any rights. It was, therefore, perfectly consistent that the Greeks aimed at perfect liberty in perfect equality, as Aristotle states, not even allowing a difference on account of talent and virtue; so that they give the πάλος, the lot, as the true characteristic of democracy. They were consistently led to the lot; in seeking for liberty, that is, the highest enjoyment and manifestation of reason and will, or self-determination, they were led to its very negation and annihilation—to the lot, that is, to chance. Not only were magistrates, but even generals and orators determined by lot.”
Had the ancients possessed other free states than city-states, they would have been forced out of this position; but there were no states in antiquity, if we take the term in the adaptation in which we use it when we mean sovereign political societies spreading over extensive territories and forming an organic legal whole. Even the vast monarchies of ancient Asia were conglomerated conquests with much of what has just been called a city-state. Nineveh, Babylon, were mighty cities that swayed over vast dominions as mistresses, but did not form part of a common state in the modern term.
In the middle ages liberty appears in a different phase. The Teutonic spirit of individual independence was one of the causes which led to the feudal system, and frequently prospered under it in rank disorder. There was no state proper in the middle ages; the feudal system is justly called a mere system. It was no state; and medieval liberty appears in the shape of liberties, of franchises, singly chartered, separately conquered, individually arrogated—each society, party, or person obtaining as much as possible, unmindful of others, and each denying to others as much as might be conveniently done. The term freedom, therefore, came distinctly to signify, in the middle ages, not exactly the amount of free action allowed to the citizen or guaranteed to the person who enjoyed it, but the exemption from burdens and duties imposed upon others or exacted in former times. Liberty had not yet acquired a substantive meaning, although it need not be mentioned that then, as well as in ancient times, the principle which made noble hearts throb for liberty and independence was the same that has made the modern martyrs of liberty mount the scaffold with confidence and reliance on the truth of their cause.
I am here again obliged to refer to the Political Ethics, where I have treated of this peculiarity of the middle ages in the chapter on the duties of the modern representative, contradistinguished from the medieval deputy.
The nearer we approach to modern times the more clearly we perceive two movements, which, at first glance, would appear to be destructive the one to the other. On the one hand states, in the present sense of the term, are formed. There is a distinct period in the history of our race, which may be aptly called the period of nationalization. Tribes, fragments, separate political societies, are united into nations, and politically they appear more and more as states. It is one of the many fortunate occurrences which have fallen to England in the course of her history, that she became nationalized at a comparatively very early period. The feudal system was introduced at a late period, and as a royal measure. The king made the Norman-English nobility. The nobility did not make the king. The English nobility, therefore, could not resist the national movement and consolidation of the people into a nation, as it did on the continent, and the crown thus not being obliged to gather all possible strength, in order to be able to subdue the baronial power, had not the opportunity to pass over into the concentrated principate, which was one of the political phases in every other part of Europe.
On the other hand we observe that the priceless individual worth and value which Christianity gives to each human being, by making him an individually responsible being, with the highest duties and the highest privileges, together with advancing civilization, in a great measure produced by itself—the Teutonic spirit of personal independence, connected not a little with the less impressionable, and therefore more tenacious, and sometimes dogged character of the Teutonic—all these combinedly, developed more and more the idea of individual rights, and the desire of protecting them.
These two facts have materially influenced the development of modern liberty, that liberty which we call our own. The progress we value so much was greatly retarded on the continent by an historical process which was universal among the nations of Europe, excepting those of Sclavonic origin, because they had not yet entered the lists of civilization.
The feudal system, of far greater power on the continent than in England, interfered with the process of nationalization and the formation of states proper. The people gradually rose to a higher position, a higher consciousness of rights, and the inhabitants of the cities generally found the baronial element hostile to them. The consequence was, that the crowns and the people united to break the power of the baron. But in the same degree as the struggle was tenacious, and the crown had used stronger power to subdue the feudal lord, it found itself unshackled when the struggle was over, and easily domineered over both the people and the lords. Then came the time of absorbing regal power, of centralization and monarchical absolutism, of government-states, as Niebuhr calls them. The liberties of the middle ages were gone; the principles of self-government were allowed to exist nowhere; and we find, at the present period only, the whole of the European continent, with the exception of Russia, as a matter of course, engaged in an arduous struggle to regain liberty, or rather to establish modern freedom. Everywhere the first ideas of the new liberty were taken from England, and, later, from the United States. The desire of possessing a well-guaranteed political liberty and enjoyment of free action was kindled on the European continent by the example of England. The course which we observe in France, from Montesquieu, who, in his brilliant work on the Spirit of Laws, has chiefly England in view as a model, to the question at the beginning of the first French Revolution, whether the principles of British liberty should be adopted, was virtually repeated everywhere. The representative principle, the trial by jury, the liberty of the press, taxation and appropriations by the people's representatives, the division of power, the habeas corpus principle, publicity, and whatever else was prominent in that liberty peculiar to the Anglican race, whether it had originated with it, or had been retained by it when elsewhere it had been lost in the general shipwreck of freedom, was longed for by the continental people, insisted on, or struggled for.
It is well, then, to ask ourselves, In what does this Anglican liberty consist? The answer is important, in a general point of view, as well as because it is the broad foundation and frame-work of our own American liberty.
In order to ascertain in what this peculiar system of civil liberty consists, we must examine those charters of the whole Anglican race, which belong to “the times when governments chartered liberty,” and to those “when the people charter governments.” We must observe what principles, measures, and guarantees were most insisted upon in periods most distinguished by an active spirit of liberty, of opposition to encroaching power, or of a desire to prune public power so as to make it in future better harmonize with the claims of individual liberty. We must see what it is that the people of England and the people of America in great political periods have solemnly declared their rights and obligations. We must study the periods of a vigorous development of liberty, and we must weigh Magna Charta, the Petition of Right, and the Bill of Rights—the three statutes which Lord Chatham called the Bible of the English Constitution. We must inquire into the public common law of England, and the common law as it has developed itself on this side of the Atlantic; and especially into the leading cases of political and constitutional importance that have been decided in England and the United States. We must ponder our great federal pact, with the contemporaneous writers on this constitution, and the debates which led to its adoption after the failure of the original articles of confederation, as well as the special charters which were considered peculiarly favorable to liberty, such as many of the colonies possessed, out of which the United States arose. We must attentively study the struggles in which the people waged their all to preserve their liberties or to obtain new ones, and those periods which, with reference to civil liberty, may be called classical. We must analyze the British and our own revolutions, and compare them with the political revolutions of other nations, and we must study not only the outward events, or the ultimate measures, but we must trace their genesis, and ascertain how and why these things came about, and what the principles were for which the chief men engaged in the arduous task contended. We must mark what it is that those nations wish to introduce among themselves, that are longing for freedom similar to that which we enjoy. We must test which of the many institutions peculiar to our tribe have proved, in the course of time, as real props of freedom, or most prolific in shooting forth new branches. We must read the best writers on law, history, and political philosophy with reference to these subjects, and observe the process of spreading liberty. We must note which are the most fruitful principles of Anglican self-government in the widening colonies north and south of the equator; and examine our own lives as citizens of the freest land, as well as the great process of expansion of liberty with ourselves. We ought clearly to bring before our minds those guarantees which invariably are the main points of assault when the attempt is made to batter the ramparts of civil liberty and bring the gallant garrison to surrender. And, lastly, we ought to study the course of despotism; for the physiologist learns as much from pathology as from a body in vigorous health.
We call this liberty Anglican freedom, not because we think that it ought to be restricted to the Anglican race, or will or can be so; but simply because it has been evolved first and chiefly by this race, and because we must contradistinguish it from Gallican liberty, as the sequel will show. Nor is it maintained that all that is included in Anglican liberty is of especial Anglican origin. Liberty is one of the wreaths of humanity, and in all liberty there must be a large fund of universal humanity, as all cultivated languages must agree in embodying the most important principles of intellectual analysis and combination; and as Grecian architecture does not contain exclusively what the Greeks originated, and is not, on account of its very humanity, restricted to Greece, still, we call it Greek architecture, and we do so with propriety; for it was in Greece that that column and capital were developed which are found everywhere with civilized man, have passed over from a pagan world into Christian civilization, and are seen wherever the Bible is carried.
Now, what we call Anglican liberty, are the guarantees which our race has elaborated, as guarantees of those rights which experience has shown to be most exposed to the danger of attack by the strongest power in the state, namely, the executive, or as most important to a frame of government which will be least liable to generate these dangers, and also most important to the essential yet weaker branches of government. It consists in the civil guarantees of those principles which are most favorable to a manly individual independence and ungrudged enjoyment of individual humanity; and those guarantees which insure the people, meaning the totality of the individuals as a unit, or the nation, against being driven from the pursuit of those high aims which have been assigned to it by Providence as a nation, or as a united people. Where the one or the other is omitted, or exclusively pursued, there is no full liberty. If the word people be taken as never meaning anything else than a unit, a widely extended and vigorous action of that unit may exist indeed—blinding ambition may be enjoyed, but it is no liberty; if, on the other hand, the term people is never taken in any other sense than a mere term of brevity, and for the impossible enumeration of all individuals, without inherent connection, the consequence must be a sejunctive egotism which loses the very power of protecting the individual rights and liberties.
What is guarantee for one is check to the other, and if liberty consists in mutual guaranteeing of certain rights of actions and endeavors, it is clear that, correspondingly, it consists in certain mutual checking, which, again, cannot exist without corresponding mutual toleration. We find therefore, in history, that no people who have not fairly learned to bear with one another can enjoy liberty. The absence of toleration is the stigma of absolutisms the establishment of “the opposition” is the glory of freedom. Freedom allows of variety; the tyrant, whether one or a multitude, calls heretic at every one who thinks or feels differently.
These guarantees, then, as we acknowledge them in the period of civil development in which we live, and as far as they are common to the whole Anglican race, and, if of a more general character, are still inseparably interwoven with what is peculiar to the race, we call Anglican liberty. These guarantees and checks I now proceed to enumerate.
national independence—personal liberty.
1.It is impossible to imagine liberty in its fulness, if the people as a totality, the country, the nation, whatever name may be preferred, or its government, is not independent of foreign interference. The country must have what the Greeks called autonomy. This implies that the country must have the right, and, of course, the power, of establishing that government which it considers best, unexposed to interference from without or pressure from above. No foreigner must dictate; no extra-governmental principle, no divine right or “principle of legitimacy,” must act in the choice and foundation of the government; no claim superior to that of the people's, that is, superior to national sovereignty, must be allowed. This independence or national self-government further implies that, the civil government of free choice or free acquiescence being established, no influence from without, besides that of freely acknowledged justice, fairness, and morality, must be admitted. There must then be the requisite strength to resist when necessary. While the author is setting down these remarks, the news is reaching us of the manly declaration made in the British Commons, by the minister of foreign affairs, Lord Palmerston, that the united calls of all the continental powers would be utterly insufficient to give up or to drive from the British territory those political exiles who have sought an asylum on English soil, and of the ready support given by the press to the spokesman of the nation. Even the French, so far as they are allowed at the present untoward conjuncture to express themselves, applaud this declaration as a proof of British freedom.
The Helvetic Cantons, on the other hand, are forced to yield to the demands even of an Austrian government; and the worried Republic of Switzerland, so far as this goes, cannot be said to be free. The history of the nineteenth century, but especially that of our own age, is full of instances of interference with the autonomy of nations or states. Italy, Germany, especially Hessia; Spain, Hungary, furnish numerous instances. Cases may occur, indeed, in which foreign interference becomes imperative. All we can then say is, that the people's liberty so far is gone, and must be recovered. No one will maintain that interference with Turkish affairs at the present time is wrong in those powers who resist Russian influence in that quarter, but no one will say either that Turkey enjoys full autonomy. The very existence of Turkey depends upon foreign sufferance.
Since the preceding paragraph was written, historical illustrations have occurred, too important to be appended in a note. The same statesman who, as minister of foreign affairs, in the year 1853, made the manly declaration concerning political fugitives, allowed himself, as prime minister, in the year 1858, to propose a law in the House of Commons, at the instigation of the emperor of the French, by which the fomenting of conspiracies in England against foreign princes should be visited with a higher punishment, or be made punishable if it was not already so. The English Commons indignantly rejected such a bill proposed at that very time; the premier lost his place, and from that historical jury-box of Middlesex proceeded a verdict of not guilty when a Frenchman residing in England was tried for having been an accessory before the fact, of Orsini, who had attempted to assassinate Napoleon III. The verdict was plainly on the ground that Englishmen would not be dictated to in their legislation by a despotic foreign government, and as such was hailed with joy by every man on the European continent who wishes well to liberty. It was a similar spirit, no doubt, which lately caused many Americans to take so warm a part against the reported attempts of English vessels to search American traders.
On the other hand, it must be remembered that this unstinted autonomy is greatly endangered at home by interfering with the domestic affairs of foreigners. The opinion, therefore, urged by Washington, that we should keep ourselves aloof from foreign politics, is of far greater weight than those believe who take it merely with reference to foreign alliances and ensuing wars. The interference need not necessarily proceed from government. Petitions affecting foreign public measures or institutions, and coming from large bodies, or even committees sent to express the approval of a foreign government, of which we have had a recent and most remarkable instance, are reprehensible on the same ground.
It is one of the reasons why a broadcast liberty and national development was so difficult in the middle ages, that the pope, in the times of his highest power, could interfere with the autonomy of states. I do not discuss here whether this was not salutary at times. Gregory VII. was a great, and, possibly, a necessary man; but where civil liberty is the object, as it is now with civilized nations, this medieval interference of the pope would be an abridgment of it, just as much as the Austrian or French influence in the States of the Church is an abridgment of their independence at present.
It is a remarkable feature in the history of England, that even in her most catholic times the people were more jealous of papal interference by legates or other means, than any other nation, unless we except the Germans when their emperors were in open war with the popes. This was, however, transitory, while in England intercourse with the papal see was legally restricted and actually made penal.
2. Civil liberty requires firm guarantees of individual liberty, and among these there is none more important than the guarantee of personal liberty, or the great habeas corpus principle, and the prohibition of “general warrants” of arrest of persons.
To protect the individual against interference with personal liberty by the power-holder is one of the elementary requisites of all freedom, and one of the most difficult problems to be solved in practical politics. If any one could doubt the difficulty, history would soon convince him of the fact. The English and Americans safely guard themselves against illegal arrest; but a long and ardent struggle in England was necessary to obtain this simple element, and the ramparts around personal liberty, now happily existing, would soon be disregarded, should the people, by a real prava negligentia malo-rum, ever lose sight of this primary requisite.
The means by which Anglican liberty secures personal liberty are threefold: the principle that every man's house is his castle, the prohibition of general warrants, and the habeas corpus act.
Every man's house is his castle. It is a principle evolved by the common law of the land itself, and is exhibited in a yet stronger light in the Latin version, which is, Domus sua cuique est tutissimum refugium, and Nemo de domo sua extrahi debet, which led the great Chatham, when speaking on general warrants, to pronounce that passage with which now every English and American school-boy has become familiar through his Reader. “Every man's house,” he said, “is called his castle. Why? Because it is surrounded by a moat, or defended by a wall? No. It may be a straw-built hut; the wind may whistle around it; the rain may enter it, but the king cannot.”
Accordingly, no man's house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon. It has been but recently decided in England, that although a house may have been unlawfully erected on a common, and every injured commoner may pull it down, he is nevertheless not justified in doing so if there are actually people in it.
There have been nations, indeed, enjoying a high degree of liberty, without this law maxim; but the question in this place is even less about the decided advantages arising to freemen from the existence of this principle, than about the sturdiness of the law and its independent development, that could evolve and establish this bold maxim. It must be a manly race of freedom-loving people, whose own common law could deposit such fruitful soil. For let it be observed that this sterling maxim was not established, and is not maintained, by a disjunctive or a law-defying race. The Mainots considered their Lacedæmonian mountain fastnesses as their castles too, during the whole Turkish reign in Greece; the feudal baron braved authority and law in his castle; the Mino-tze 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 permanent, 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 government, 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 minister of the crown in the Commons, Lord John Russell, opposed 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 deprive 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 description 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. 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 may say the special warrant is a death-blow to police government.
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.”
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. The learned jurist says:
“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 murder, 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, uniess 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 circumstances of the case, that a lawful arrest was intended, but, 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 dwelling-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 Charlcs 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 arrests,” as extra-judicial arrests are called in France, or imprisonment for reasons of state. The habeas corpus act further insures a speedy trial, 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 between law and the individual on the one hand, and power on the other. The history of this act is interesting and symptomatic.
The Constitution of the United States prohibits the suspension 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:” “The establishment 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 personal 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.”
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 present 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 attempt to assassinate 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.
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.
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, and has been adopted in all our constitutions, that no “excessive bail” 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 transgressions 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 necessity, 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 inquisitorial) process, the certainty of the law which is to be applied, together with speed and utter impartiality, and an absolute verdict. It is moreover necessary that the preparatory process 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 guarantees 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 depends.” 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.”
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 political civilization, partly because it is one'of the most difficult subjects to elaborate, and because it requires long experience 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 deficient. The English have allowed counsel to the penally indicted person only within our memory, while they had been long allowed in the United States. The penal trial in the Netherlands was, imperfect, when, nevertheless, the Netherlanders are allowed on all hands to have enjoyed a high degree 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 humanity and to the laws of logic.
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 legislation. 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 judicial 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); there must be 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 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, and, on the contrary, the adoption of the reverse; a distinct indictment, and the acquaintance of the prisoner with it, sufficiently long before the trial, to give him time for preparing the defence; that no one be held to incriminate himself; the accusatorial process, 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 accordance with common sense and justice; 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 contamination 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; that nothing but what the law demands or allows to be inflicted, and that all that the law demands 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 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. Or let us observe English prosecutions some centuries back.
In the inquisitorial process, it is not only done, but the process 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 personal 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 from 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 judicial browbeating, to the detriment of all justice.
The trial of Elizabeth Gaunt, 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, and was convicted of treason on the sole testimony of the wretch whom she sheltered that she had knowledge of his being a rebel, may serve as an instance.
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 unconnected with the question at issue, that Mr. Bèranger 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 disregard of all rights; an iron rod is used with us, instead of the staff of justice.”
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 conviction, which otherwise may not be the result, it is nevertheless 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 nonself-incrimination, the whole Chinese code for that people under a systematic mandarinism is pervaded even by the principle of self-accusation for all, but especially for the mandarins.
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; 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 harassed 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. Frequently 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 bring the prisoner to confession, are almost inconceivable, 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 thousand drachmae to the state, and could never again institute a similar 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 compensation for the inconvenience he had suffered in person or character.”
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. 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 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 sufficiently 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.
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 belonging to the modern law of some countries of the European continent, 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 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, Article III., Section III.:
” I. 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.
” 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 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 Marshall 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.”
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 conformity with the principles which the respective constitutions lay down regarding penal trials. None admit of retrospective laws, of legislative condemnations of individuals, or of attainders.
The course which the development of the law of treason takes in history is this: At first there exists no law of treason, because 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 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 infamous that the regular course of law is too slow or too doubtful! 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.
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 amount to treason, from the crime of “offended divine majesty,” (crimen læsæ majestatis divinæ,) 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 dis-proportionally 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 necessary 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;
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, as Burnet says, or, as McAulay has it, in ten days;
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;
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 Oates, or Lord Howard against Lord Russell;
The judges must not depend upon the executive;
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 common 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, 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
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 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. .
6.The freedom of communion is one of the most precious and necessary rights of the individual, and one of the indispensable 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 individual and in nations depends in a great measure upon communion, and that free communion is a pre-existing condition. The only question is, how to select the best government with it, and how best to shield it, unless, indeed, we were speaking 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.
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 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 unnécessary 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 constitution went out of their way and preferred to appear inconsistent, 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 of freely corresponding is unquestionably one of the dearest as well as most necessary of civilized man; yet our forefathers 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. So soon as the letter, therefore, 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, carried on in France and other countries with bureaucratic system, 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 civilization, 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.
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 governments 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 ordering 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 postscript, written by the government 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 “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 governments? It is not from a desire to stigmatize these governments. It is on account of the prevailing principle, and the stigma is a natural consequence of this principle.
England, as may be supposed, has not always enjoyed liberty of the press. It is a conquest of high civilization. It is, however, a remarkable fact, that England owed its transitory but most stringent law of a censorship to her republican government.
On September 20, 1647, 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 authority. 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-acquainted 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 immediately after the coup d'état of Louis Napoleon, which puts the sale of printing and lithographic presses, copying machines, 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'état, 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 continuing it.
It would be, however, a great mistake to suppose that governments alone interfere with correspondence and free communion. 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 observed, in all countries in which I have lived, that, if party struggle rises to factious passion, the different parties endeavor to get hold of the letters of their adversaries. It is, therefore, of the last importance, both that the secret of letters 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 Germany 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. The 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.
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 principle of adhesiveness, so strong in all spheres of action, thought, and affection, and which forms one of the elementary principles 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 proportionate 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 to the capital removed along with emigration. 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 statesmanship, even by a ruler so wise as Frederic II. of Prussia, to prevent money from flowing out of the country; for wealth 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 country? 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 emigrants to Ireland, from leaving our shores? 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 accustomed 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 for enumerating it. Passports are odious things to Americans and Englishmen, and may they always be so.
liberty of conscience.—property:—supremacy of the law.
8.Liberty of conscience, or, as it ought to be called more properly, the liberty of worship, is one of the primordial rights of man, 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.
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. 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 economical 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,” dragonnaded” 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 dissimilar to that which inspired it in the seventeenth century by which it regained much of the ground lost by the Reformation, and which has been so well described by Mr. Ranke. The Protestants are not idle; they study, 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 within our country, and who doubtless may become troublesome 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 question 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 contradistinguished from oriental life—of that whole civilization in which we have our being, and which is the precious joint product 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 impediments; 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 acting; consequently, an admission to equality in a free country implies admission to power, and it is this which frequently 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.
9. One of the staunchest principles of civil liberty is the firmest possible protection of individual property -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 individual property demands likewise the exclusion of confiscation. For, although confiscation as a punishment is to be rejected on account of the undefined character of the punishment, 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, which confiscation totally destroys. It would perhaps not be wholly unjust to deprive an individual of his property as a punishment for certain crimes, 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. Corruption of blood is distinctly abolished by our constitution.
Individual property is coexistent with government. Indeed, 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 enjoyment of individual property is not mentioned as a particular item of civil liberty, as little as the institution of the family, except when communistic ideas have endangered it, or, in particular cases, when private property must be given up for the public benefit, and laws or constitutions settle that it shall not be done except for equivalents given by the public through government.
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.
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.
Every single subject here mentioned, monopolies, 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 government 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 freedom.
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 is it 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 repudiations. 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, and we totally deny the correctness of the assumed facts and inferences drawn from them by Sir A. Alison.
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. This we call the supremacy of the law. 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 authority 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 occurred, (without which it cannot be mens sine effectu, 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, to a “government by commissions,” nor to extraordinary courts 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,) nor to mere “proclamations” of the crown or executive, nor to the dictation of mobs, nor of any people who claim to be the people; nor, indeed, to any 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 prévôtales. It had become very necessary to point out in the charter that every one should be judged by his “natural court,” because the extraordinary courts had been a great grievance in former times, and because Napoleon had introduced le jugement administratif, although lettres de cachet remained abolished in his reign. An administrative or executive judgment simply meant decisions, 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 courts.” 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 declaring 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'état. After it, all France may be said to have been so.
In England, when there is a rebellion or wide-spread disorder, threatening life and property, a regular act of parliament 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.
We have seen already under what circumstances our constitution 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 distinguished from a government of functionaries. It is so natural to the Anglican race that few think of it as essentially important 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. 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.A coup d'état, such as we have lately seen in 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 legality. It is obvious how much this peculiar Anglican principle heightens the importance of obedience to the officer, representing 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 suspicion 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.” I doubt it, whatever the inconvenience 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 statute, 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!
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 experience 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 encroaches 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 machinery works without occasional friction. Compare with this the ruthless European continental police, and choose. The reader will find at the end of the footnote appended to this page an amusing illustration of the fact that monarchical absolutism does not necessarily give freedom or boldness of action to officers.
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 obtains 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.
In conclusion, I would remark that it is wholly indifferent 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 offending 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 dispense with it, and it has worked well.
quartering soldiers.—the army.
12.Governments, if not very closely hedged in, have it in their power to worry citizens into submission by many indirect 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, insulting, 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 endeavor 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 parliament, 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 character and condensed national demands as the Bill of Rights and the American Constitution are; but the “dragonnades” of Lours XIV. in France, of James II. in Scotland, and those of more recent and present date in certain countries, furnish sufficient 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.
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; the army-estimates are passed for one year only; so that, were parliament to refuse appropriations, after a twelvemonth the army would be dissolved. The mutiny-bill, by which power is given to the king to hold courts-martial for certain offences in the army, is likewise passed for a year only; so that, without repassing it, the crown would have no power even to keep up military discipline.
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 governments, which in the late European 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 circumstances are such that people must start in the career of freedom with an enacted constitution, it is natural and necessary 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 consent of our legislatures. “It is enumerated as a radical grievance, plain and palpable to every Anglican mind. Immediately 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 success, is counted as a grievance sufficient to warrant, among others, an extinction of allegiance. Of the twenty-seven grievances enumerated in the Declaration as justification for a revolution, three relate to the army.
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.” 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 because 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 soldiers return continually to the people—a spirit directly opposite to that which ought to be the general spirit of a free people 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 citizen are produced, and a view of government is induced which is contrary to liberty, self-reliance, self-government. Command ought to rule in an army; self-development of law and self-sustaining order ought to pervade a free people. A German 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 comparison.
The officers of a large army are in the habit of contemptuously speaking of the “babbling lawyers.” Les légistes have always been spoken of by the French officers in the same tone as “those lawyers” were talked of by Stafford 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 “peace-men;” 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. 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 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, n 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 institution made for the provision of the poor noblemen, and disregards 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 completely 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 influence 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 be in harmony with French “equality;” it may be democratic, if this term be taken in the sense in which it is wholly unconnected 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.
It was formerly the belief that standing armies were incompatible with liberty, and a very small one was granted to the King of England with much reluctance; but in France we see a gigantic standing army, itself incompatible with liberty, for which in addition the right of voting is claimed.
The Bill of Rights, and our own Declaration of Independence, show how large a place the army occupied in the minds of the patriotic citizens and statesmen who drew up those historic documents, the reasons they had to mention it repeatedly, and to erect 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. English history, as well as that of other nations, furnishes us with instructive instances.
A wise medium is necessary; for an army without thorough unity is useless; indeed, worse than useless. It produces a thousand evils without any good; while it must always be considered as a distinct postulate 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 degree 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 infringement 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 organization of the people, or “national guards,” has been deemed necessary; but we cannot point them out as characteristics of Anglican liberty.
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 constitution.
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; 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, frequently serves as a safety-valve, if judiciously treated by the recipients, 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 necessary 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 natural a right, in all spheres where there are superiors and inferiors, that its special acknowledgment in charters or bylaws would be surprising, had not ample experience shown the necessity of expressing it.
Where the government is founded on the parental principle, or where the despot appears as an earthly Providence, the petition of individuals plays, naturally, an important part, so long as it does 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 remember 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.
The political philosopher in treating of this subject must distinguish between petitions to the executive, (and as to petitions for pardon, which have become a most serious evil in the United States, the reader is referred to the paper on pardons 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 freedom 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 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 government. 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 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 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, or that which indicates by thirst the necessity of refreshing the exhausted body? Shall the free sale of cutlery be interfered with, because murders are committed with knives and hatchets?
The associative principle is an element of progress, protection, and efficient activity. The freer a nation, the more developed 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 instances of the power which associations may wield, and of the full extent which a free country may safely allow to their operations, seem to be more striking than those of the Anti-Corn-Law League in England, which, by gigantic exertions, ultimately 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; 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 Liberian 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, Imperium in imperio, and both would have been speedily put down.
We may also mention our voluntary 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 assumption. 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 copartnerships 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.
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 transacted publicly, and also the publication of all important documents 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. Without the latter, the admission of the public would hardly amount in our days to any publicity at all. We do not assemble in the markets as the people of antiquity did. The millions depending upon public information, in our national states, could not meet in the assembly, 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 certain 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 documents 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 transactions. 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. Bureaucracy is founded upon writing, liberty on the 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 centralism, desire to establish liberty. I do not hesitate to point out orality, especially in the administration of justice, in legislation 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.
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 public, as we take it—as significant as it is that a great French philosopher, honored throughout our whole country, lately wrote to a friend: “Political matters here are no longer public matters.”
In free countries political matters relate to the people, and therefore ought to be public. Publicity informs of public matters; it teaches, and educates, and it binds together. There is no patriotism without publicity, and though publicity cannot 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 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 observing 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 thoroughly is publicity now ingrained in the American and Englishman 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 imagine England or the United States without the reporting newspapers, than nature without the principle of vegetation.
Publicity pervaded the system of American politics so generally, 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 existence. They did not trouble themselves with unnecessaries, or things which would have had a value only as possibly completing 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.
Publicity of speaking has its dangers, and occasionally exposes to grave inconveniences, as all guarantees do, and necessarily 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 migitate the evils arising from publicity in general, and public oral transaction of affairs in particular. It is not our business here. We treat of it in this place as a guarantee of liberty, and have to show its indispensableness. 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.
Liberty, I said, is coupled with the public word, and however frequently the public word may be abused, it is nevertheless true that out of it arises oratory—the æsthetics of liberty. What would Greece and Rome be to us without their Demosthenes 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 masterly 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 legislative bodies, which it assuredly does, these bodies have no 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 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 control. There is in imperial France a positive hatred against the “tribune.” Mr. Cousin, desirous of leading his readers to compare the imperial system with that of the past governments since the restoration, says of the Bourbons that, whatever it may be the fashion to say of them, “they gave us at any rate the tribune,”(the public word,) while Mr. de Morny, 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 measure 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—confidence 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 addition to their preventing the growth and development of manly character, and promoting 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 the citizens, by deciding on public measures and men without the trial of public discussion, and by bringing the influence of a secretly united body to bear on the decision or election. Secret societies 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 mysterious 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 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 should use every means in their power to exhibit 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.
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 absolutism 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 supervision of the popular branch of the legislature, which is likewise 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 English are so jealous of this principle, that the commons will not even allow the lords to propose amendments affecting money grants or taxation.
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 withholding 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 perform its functions, and if no provision is made for an orderly and organic grant of power, it will, in cases of necessity, arrogate it. A liberty thus merely hedging in would resemble embankments of the Mississippi without an outlet for freshets. No one believes that there would be sufficient time to repair the crevasse. This applies to all the concerns of government, and especially 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 “The Federalist,” 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 parliament over the supplies,” “the stoutest buttress of the English constitution.”
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 demand 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 popular branch of it, keep the purse-strings of the public treasury; but also that the same principle be acted upon in all minor circles 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 mal-appropriations 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 deputies, 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 opposite to that which we consider essential regarding money appropriations.
The history of the control over the public funds, in granting, 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. Every one 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.
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 purposes, loans were made, which were never 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.
As civil liberty advanced, all revenue of the monarch, independent 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. giving up all extra-parliamentary 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 concluding 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, and an American declaration 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 control. Even with the best-contrived safeguards, and a deeply rooted tradition, it seems impossible to guard against occasional high-handed assumption of power by the executive in this particular. Whatever our late Mexican war ultimately became 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 hostilities had begun, called on congress to ratify its measures.
It has already been stated (paragraph 13) that a perfect dependence of the forces upon the civil power is an indispensable requisite and element of civil liberty.
21. The supremacy of the law and that unstinted protection 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 institution, 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 government 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 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. [Book v. chap. 3.]
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 unconstitutional 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, upon a government by party, if by party we mean men who agree on certain “leading general principles in government” in opposition 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 encouragement to those who, politically speaking, are the most worthless. But freedom of thought and action produces contention in all spheres, and, where great tasks are to be performed 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. Without 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 parliamentary government, and no truly parliamentary government can be conceived of without the principle of party administration. 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 inconvenience, 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 insolence to which parties in power frequently rise, even in countries like ours; and for the fact that, in England at least, there is a manifest disposition to treat measures and politics in general, 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.
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 character. The union of these functions is absolutism, or despotism on the one hand, and slavery on the other, no matter in whom 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 the necessity of keeping the three powers separate in a “constitutional” 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. Unité du pouvoir is the watchword of the French republicans, and it is the very principle with which Louis Napoleon checkmated 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 portion of mankind are representative (or, as the French choose to call it, parliamentary) government, which is essentially of a cooperative character-it is the government of Anglican liberty; and unity of power, the Galilean type. The French people themselves are divided according to these two types. Mr. Guizot may perhaps be considered as the French representative 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 historians 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 antiquity 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 that 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-operative whole, but abhor the unity of power.
What the French republicans demand in the name of the democracy, 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 philosophical 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 remarkable how all absolutists, monarchical or democratic, agree on the unity of power.
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. 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.” 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.
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.”
Our own Webster, in his speech on the presidential protest, delivered the following admirable passage on the subject of 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.
Mr. Webster said: “The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just divisions 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 authority, 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, sagacious, 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 entrenches itself behind strong defences, and fortifies itself with all possible care against the assaults of ambition and passion. 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. For otherwise. 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.”
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 absolutism existing, it must be wielded by one man. All absolutism is therefore essentially a one-man government. The ruler may not immediately take the crown; the pear may not yet be ripe, as Napoleon 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.” Change the terms, and nearly every word applies to absolute democracies with equal truth. Aristotle says that extreme democracy (what we would call democratic absolutism) has the character of the tyrannis (monarchical absolutism.) This is true, yet we must add these modifications: The power of the absolute monarch, though centred 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 fearful 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 treasonable 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 Tencin, the chanoiness mistress of the Duke of Orleans, regent of France, and successively 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 his 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. Liberty 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 passion, nor is she for them a misty nymph with whom a mortal 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.
responsible ministers.—courts declaring laws unconstitutional.—representative government.
24.It is not only necessary that every officer remain individually 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 important, 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. 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 distinctly express it, and his newspapers continue to decry the servile position of government when ministers are “in the service of a house of representatives,” 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 prerogatives 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 needs hardly to be added that it forms one of the prominent 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 measure or not. It was not claimed that he could do it because 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 people;” and the principle which I have mentioned may be considered 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 specifically prohibited, the mentioned principle prevails regarding the executive.
26. The supremacy of the law requires that where enacted constitutions form the fundamental law there be some authority which can pronounce whether the legislature itself has or 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 legislature, and might err as much as the latter. Quis custodiet custodes? Tribunes or ephori? They are as 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 interests, 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 involve 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 answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, 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 actually 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 shall 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 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.
27. Of all the guarantees of liberty there is none more important, and none which in its ample and manifold development 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, representatives for the state at large, and with the general power of legislation. This constitutes one of the most essential differences 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 enemies 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 substantive value; of political instruction and mandates to the representative, 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; 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 ascertained; 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 preventives of the growth of centralization and a bureaucratic government—as that institution without which no clear division of the functions of government can exist.
Before we consider the most prominent points of a representative 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 believed, and many persons believe still, that a representative 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 present, 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 Athenian pebble or by cheirotonia, (the show of hands,) we must still cling to the representative system as a substantive institution. 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 was one of the most important in the progress of civilization and modern political development, as a period of medieval disintegration and division 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 representative government could alone have saved it; for its recollections 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, unmitigated, 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 component 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 who, as trustees, are limited in their power—absolutism is unavoidable. Absolutism is the negation of protection; protection in its highest sense is an essential element of liberty. 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 Arginusse, 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 difference 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 cause?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 representative 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 representative 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 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-government, there is no liberty as we understand it.
Nor must we forget two facts, which furnish us with an important 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 representation, 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 ministers 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, they pointed to countries in which the latter, existing alone, had brought no real liberty. Asia, as was before stated, furnishes us with innumerable instances of local self-government, which are there neither a source nor a test of liberty. True liberty stands in need of both, and of a bona fide representative government largely and minutely carried out.
representative government, continued.—basis of property.—direct and 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 and those only who have the right to vote do vote, (hence the importance, and, I believe, the necessity, of registration 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 expanded in England, and continues to be expanding.
The English, not allowing universal suffrage or indeed a representation based upon numbers alone, require some limit is, beyond which the right of voting shall not 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 property is the basis of representation in England. This is not correct. Property, or the enjoyment of a certain revenue either from acquired property or from an industrial occupation, gives the right of voting, but it is not the basis of representation.
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 represented 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 representation, 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 likewise 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.
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 beyond 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 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 property 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 property 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 representation 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 candidates 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 sc well known by the enemies of liberty, that despotic governments, 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 acquaintance with the operation of the principle, must explain the measure. 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 candidate 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 election 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 statesmanship on the other, to establish, combine, and, as circumstances 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, 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 desirable to see in the legislature decline contending with paltry local interests and jealousies. And here it may be mentioned that a marked difference between England and America consists in the fact that in the first-mentioned country voters may take their representative from any portion of the country, while in America the principle prevails, we believe universally, that the representative must be a resident in his constituency, which is an additional reason that election districts 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 members, if three are to be sent there, 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, inoperative toward the desired object, and not Anglican. Another method was adopted to secure the representation of the minority, in the so-called Ruatan Warrant, in 1856. In this instrument every voter received the right to give, if four representatives 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. This is legalizing, and indeed intensifying, the voting of “plumpers,” as it is vulgarly called 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, suppleans are immediately elected.
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 elections of electors, each election connected with oaths; and the Doge of Venice was elected by nine different acts, namely, five elections alternating with four acts of drawing lots, 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 distasteful citizen from the house.
The beginning of an election, the appointment of managers, the protection of the minority in this matter, and the conscientious 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 office is assigned to the house of representatives by the American constitution.
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 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 interference 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; 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 members, or at least the members of the popular branch, are 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.
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 system of popular representation. Chatham, his father, had expressed himself against it before him, and it would really seem that England will return, at no distant time, to a shorter period of parliaments.
When Count Villèle, 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 period 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 have 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 legislature shall not meet oftener 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 ordains it. The Constitution of the United States makes the meeting and dissolution of congress entirely independent of the executive, 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 constitution, in the words that “for any speech or debate in either house, they [senators and representatives] shall not be questioned in any other place.”
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, except for certain specified crimes. The English house of commons “for the first time took upon themselves to avenge their own injury, in 1543,” 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.” The Constitution of the United States enacts that senators and representatives 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.”
33. It is farther necessary that every member should 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 legislature itself. In most countries not under the segis of Anglican 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'etat. The French legislative corps has indeed not even the privilege of amendment; it has not the right of voting on the ministerial estimates, except on the whole estimate of one ministry at once. 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 minister is either a peer or must contrive to be elected into the commons, the ministers have of course the right of the initiative 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 representatives, and may speak, but have no vote. A minister had the right to speak in either house, under the former French charters, 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 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 legislature, 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.
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 proceeding 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 monarch 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 commons. 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.
The Constitution of the United States says that “the house of representatives shall choose their speaker and other officers,” and, so chosen, he is speaker, without any other sanction.
The charter granted by Louis XVIII. of France prescribed 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 president 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 confirmed by the governor, but, as was observed of the speaker of the commons, if consent were 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, by. 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, presides over the house of peers. There seems to be a growing desire in England 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 cabinet 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 the chancellor on the woolsack, and the Vice-President of the United States as president of the senate, exercise no 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 appointing, to the presiding officer, who interferes only when called upon to do so.
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 parliamentary law—an important branch of the common law. Like all common law, it consists in usage and decisions; there are 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.”
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.
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, by 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. Parliamentary practice, or rules of proceeding and debate, such as have 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.
It is not a French “règlement,” prescribed by the executive 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 infinite 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 decrets d'acclamation—were those in which there were speeches and harangues without propositions. Sir Samuel Romilly 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, (décréter le principe,) and leaving the drawing up of what they had so resolved (or, as they called it, la rédaction) for a subsequent operation, it is astonishing how great an influence it would have had in their debates and on their measures.”
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.
Foreigners frequently express their surprise at the ease with which, in our country, meetings, societies, bodies, communities, and even territories, 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 children. There are few schools the members of which have not formed some debating society, where parliamentary forms are observed, and where the rigorously enforced fine impresses upon the boy of ten or eleven years the rules which the man of forty follows as naturally as he bows to an acquaintance.
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 animanum, 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.
It is not only a guarantee of the free share of every representative in the legislation 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 evidence 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 enforcement 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 anything 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, with the sincerity of a parting friend, earnestly to recommend to your attention a steady adherence to these venerable usages.”
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 his torically 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, and everywhere it succeeds; 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 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 circumstances 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 single house, for instance in Pennsylvania, 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, disregarding, as Dr. Franklin had done, the voice of history, approved 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 collecting all authority into one centre, that of the nation, they established different bodies, a body of representatives, a council, 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 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 territories of this vast confederacy have now governments framed on the plan of the English.”
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 dictatorial power. This is precisely the danger to be avoided. Parliamentary practice and the two-house system are subjects of such magnitude that it is impossible here, where they are mentioned as guarantees, 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 acknowledge as the first thing to be obtained, power, force; and their philosophical writers, such as Rousseau, seek, almost exclusively, a philosophical or legitimate source of that power. Hence their view of universal suffrage, and the power, be it that of an all-powerful Cæsar, or of a concentrated single chamber, all-providing and all-penetrating, when once established, arising out of it Hence the prosecution of Mr. de Montalembert, as having attacked the legitimate power of the emperor, 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, discovering, 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 national 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 Brougham 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.
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 duration, 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 capacity, as the French peers had under the charter. This is probably 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 representative 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 parliament; or the people may elect senators for life, or for a shorter time, as the senators of Belgium and all the senators in our states 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 reference to circumstances, 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 different classes, or interests, however, which ought to be represented, I would only state that the idea belongs to the middle ages, and, if adopted, would lead at once to several estates again. It is hostile to the idea of two houses only. Why represent 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 that of journalism. The excellence 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, instinctively if not otherwise, that a single house of French representatives would be exposed to the rashest legislation. The council of state, however, is not public, the members are appointed 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 mention here the fact that civil liberty distinctly requires the representative to 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 mention 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 protection 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 administration would be formed which would agree with parliament; or parliament would be dissolved, and an “appeal to the country” 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 that the whigs in the United States earnestly spoke and wrote against the principle, when General Jackson declined giving his assent to some measures they considered of great importance, 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 Roman 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 auxilium, 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 before 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, however, 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 reality 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 required—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 nevertheless passes into a law if two-thirds of congress adhere to the bill. Many of our state constitutions do not require the concurrence 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.
independence of the judiciary.—the law jus, common law.
37.One of the main stays of civil liberty, and quite as important 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. 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 expected, 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 for two reasons. The 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 by Lex and Jus, in French by Loi and Droit, in German by Gesetz 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 constitutions—a body of law and “practice,” in the administration of justice, which has never been deadened by the superinduction 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 independence of the judiciary forms but a part of what I have been obliged to call the far more comprehensive Independence of the Law.
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 organic 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, therefore, self-interpretation or interpretation by the judiciary itself, the principle of the precedent and “practice” acknowledged 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. Even if the English law should be codified, as at this moment the question of codification has been brought before parliament, the living 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 between 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 retrospective 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.
Judge Story has very clearly expressed what a code, with reference to the English law, ought to be. He says: “Notwithstanding 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 be, 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.”
Locke, on the other hand, expresses the view which is almost 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.”
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 attributes 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 interfering 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 executive or the legislative. This does not exclude what is called authentic interpretation, or interpretation by the legislature itself, for future cases. Accurately speaking, authentic interpretation 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 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 elements 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, Anaxarchus would have been right in telling Alexander that as Dike was represented as seated by the side of Zeus to show that all his decrees had the quality of justice, so a great king's doings must be considered to be right by himself and by other men. Nor is a precedent unchangeable. It can be overruled. But, again, it must be done by the law itself, and that which upsets the precedent cannot otherwise than become, in the independent life of the law, precedent in turn.
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 eminent danger of regarding a mere fact as a precedent, I have fully treated in two other works. 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 principle 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 off. The principle 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, decisions, 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 continuous society in a continuous law is more truly “philosophical,” 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 caricatures 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 farther 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 Batis at the wheels of his chariot round the walls of Gaza, in order to follow the precedent of his progenitor Achilles. But this is caricature, and it is un-philosophical to point at the case in order to prove the futility or mischief of the precedent. It is a proper subject for Punch to exterminate such farces, not for us to discuss them, any more than to treat seriously the French publicist who, speaking of the intrigues of the legitimists, lately said that the elder Bourbons 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 sentimental 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 apotheosis 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 compare 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 authenticated, that President (John) Adams, when he was Vice-President of the United States, and Blount's conspiracy was before the senate, and the question whether the common law was to be 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.”
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 insecurity are 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 respective countries occupied by our race, as well as the steady extension and internal growth of international law, forms 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, literature, 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 freedom 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.
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 heat by Lord Holt, 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.”
The common law is all the time expanding and improving. I have given a very interesting instance of this feet, in the law of whalers, which has developed itself among the hardy hunters of the Pacific, and has been acknowledged, when the proper occasion offered itself, in the courts of Massachusetts.
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 concentrated in absolute dominion, whether of the majority, or of one to whom the majority has transferred the absolute power-the democratic Cæsar. 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 subsists 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 absolute democracy has no connection with liberty.
independence of jus, self-development of law, continued.—accusatorial and inquisitorial trials.—independence 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 connivance.
In countries in which this important principle is not acknowledged, 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.
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 retired to consider 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 Sunday is a dies nonjuridicus? This question was lately decided in South Carolina, not by applying for information to a “minister 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.
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 consequently the citizen not free, where aught else than the administration 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. Hence there ought to be no pressure from without, either by a Stuart sending for the judges to tamper 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 before the practical case has come on and been discussed according to law, either to monarch, political party, or suitor. 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 extraordinary or exceptional courts, as has been mentioned; no judgments 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 religious vestments; and the well-known Father Newman asked the secretary for the home department whether this royal proclamation must be considered as directed also against the wearing of “cassocks and cloaks” in the streets of Birmingham, where the Roman Catholics had been in the habit of appearing 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 directed 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 submitted to him; for if any doubt exists on the point, the decision of it must rest with the courts of law, and not with the government.”
There is no country except ours and England where a similar answer would, or indeed could, have been given. Everywhere else it would have been called a destruction of the principle 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 politics. 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 declared 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 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,) but that penal trial which places the court wholly above the two parties in criminal matters, 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 prosecuting party as well as the judging, and in some cases he is even expected to be likewise the protecting party of the indicted prisoner, thus uniting a triad of functions within himself which amounts to a psychological incongruity.
It may be said that the public accusatorial trial has prevailed or been aimed at by all free nations, modern and ancient. We, the English, the Netherlanders, the Norwegians, the Swedes, the French since the first revolution, 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 accusatorial process, since the expulsion of the Stuarts, contained great guarantees of public security, even while those deficiencies 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 prisoners 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 jailers should be paid from public funds, and not, as theretofore, by fees of the prisoners, so that persons found not guilty should no longer be returned to prison, there to be kept until they could pay the jailer.
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 whomsoever 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 examinations 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 likewise is the case in France. Nor must the prisoner be asked to incriminate 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 the prisoner. In all these details most of the accusatorial trials, except 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 separation of the judiciary from the other branches of the government, without a living, self-sustaining jus, or without the accusatorial 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. Where there 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 aptitude are requisite, it is for many psychological reasons 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 irresponsible 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, Mahometanism, 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 important elements of all that is right, honorable, and civilized.
Laws ought to be the result of mutually modifying compromise; many appointments ought not. Election in such cases by a large body would lead to few efficient and truly serviceable ambassadors, and it has long been settled by that nation which probably knows most about efficient appointment of university professors, the Germans, that their appointment by election, either by a numerous corporation or by the professors of a university themselves, ought to be discarded.
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 judges. 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, were not absolutism, and had not the inherent tendency, natural 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 absolutism, 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 absolutists 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 included—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 necessary 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 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 unpatriotic, mean, and even treasonable.
An independent judiciary is one of the most indispensable elements of self-government, for self-government always implies mutual restraint. It is one of the wisest acts in a perfectly 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.
Those of our states which have of late given the appointment 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 political 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. There are many 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 themselves 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 electioneering? 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 to the general influence under which a legislature legislates. As to the fitting of the bench for legislative business, it is undoubtedly 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 progressive character. Almost all law reforms have originally been resisted by the bench. It is not in all cases to be regretted. The judges are the brakes which prevent the vehicle from descending too fast on an inclined plane; but the retarding 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 believe, then, that elective judges are a departure from substantial civil liberty, because it is a departure from the all-important independence of the law.
The foregoing paragraph was written in 1853; and I 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, extensive 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, but simply to satisfy the desire of increasing the power of the power-holder—to be subservient to the sovereign; that in reality 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 prohibited by all our constitutions, it follows, a fortiori, that a reelection 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 individuals 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 occurred 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.
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. The experience which is required, and the authority he must have, although unsupported by any 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. The constitution of the French republic of 1848, so democratic in its character, decreed the tenure of judicial office to be for life.
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 commanding 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 possible suspicion of dependence, it has been ordered in the Constitution 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 compensation 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 increased either, during continuance in office. 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 appointment by election? It will hardly be necessary to mention that a fixed salary, independent of fees and fines, is indispensable 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 Jeffreys. The hounds receiving part of the hunted game suggest 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.
Although the principle of arbitration cannot be called a characteristic of liberty, for as a characteristic it belongs rather to the patriarchal government, and courts of arbitration may flourish 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 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 resulting 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 declaration 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 propositions 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 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 has been taken, by common consent, to arbitration, and the suit at law has proceeded with the decision 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, 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 conclude, 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.
independence of jus, continued.—trial by jury.—the advocate.
41.The judge cannot occupy a sufficiently independent position 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 application 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 participation 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 conservative. 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 arbitration courts, which have proved, as has been stated, a great blessing in all countries in which they have been properly established, or against certain courts of minor importance which may be advantageously conducted without a jury.
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 without 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, and as our ancestors worshipped it—than without the representative system. But we must remember that in all spheres the exception is patent; the continuous operation of the rule is latent.
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.”
It may not be improper here to enumerate briefly all the advantages of so great an institution, whether they are directly connected with liberty or not.
The trial by jury, then, if properly and intelligently administered, divides the labor of the administration of justice, and permits each part quietly to find the truth in the sphere assigned 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 disposition 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;
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 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 inadmissible and strained demands of the government;
It is necessary for a complete accusatorial procedure;
It makes the administration of justice a matter of the people, 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 administration of justice;
It teaches law and liberty, order and rights, justice and government, and carries this knowledge over the land; 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 magistrate, looked up to with confidence and favor; which is nowhere else the case in the same degree, and yet 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, nevertheless, 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 expanding common law without it;
It is with the representative system one of the greatest institutions 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 requires, 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 advantages of the trial by jury. 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 become, 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 corrupt 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 guarantees 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 continuance 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 unanimity principle ought to be given up, would be of no value. 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: “Even' jury shall consist of twelve men; and it shall not be necessary they should all agree, but the verdict shall be according 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.
It is, besides, well known that our number of twelve jurymen, 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 would be given, and that compurgators were added until twelve of them agreed one way or the other.
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 government 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 independence, and the consideration they have to take of their future career would soon check it where it might occasionally happen to spring forth.
The independence of the advocate is important in many respects. 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 independence 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 important 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, nevertheless belong more properly to political and especially to legal ethics. As such I have treated of them in the Political Ethics. I own, however, that, when writing that 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 philosophically. 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.
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 profession 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 maintaining 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.
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 obligation 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 dangerous 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 could 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 Mansfield 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 entire and highly privileged class, 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 accusatorial 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 prominent 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.
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 contrivance 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 curiæ; 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 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 authorities 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 established as a means of ascertaining truth and dispensing justice; 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 arbitrarily privileged position, tyrannical toward the rest of society. To allow tricks to a whole profession, or to claim them by law, seems monstrous. There is no separate decalogue 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 will be done by the opposite party. He has no right to decline 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. The defence of possible innocence, not the defeat of justice, is the aim of counsel.
Great advocates, such as Romilly, 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 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.
The last constituent of our liberty that I shall mention is local and institutional self-government. Many of the guarantees 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-reliance and self-determination in the various minor and larger circles in which government acts and of which it consists. 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 representative legislatures; self-government may be said to be liberty in action. It requires a pervading conviction throughout 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-government 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-government, 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 people. It does not create or tolerate a vast hierarchy of officers, 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 view that the church consists of the hierarchy of 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 consist in the satrap despotism 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, indeed, 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 at 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 opposites 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 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, his chief antagonist, William Pitt, even the tory premier, could not help becoming the organ of Anglican self-government, as appears from the anecdote 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.”
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 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 readiness 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. Absolutism 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 maintained 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 occasionally 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 paroxysms; which possesses the greatest tenacity? Is it the brilliant exploits which constitute the grandeur of nations if surveyed in history, and are there not many brilliant actions peculiar to self-government and denied to centralized absolutism?
In history at large, we observe that the material and brilliant 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 proportion to their vigorous self-government. This influence, however, 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 imperial pupil; yet thousands learn the name of Alexander the Great, even in our primary schools, who never hear of Aristotle. Nature herself furnishes man with illustrations of this fact. The organic life which silently pervades the whole with a creative power, is not readily seen, while convulsions, eruptions, 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 Propter vitam vivendi perdere causas, with perfect justice, are indeed endless
Napoleon I., who well knew the character of absolute government and pursued it as the great end of his life, nevertheless speaks of the “impuissance de la force”—the impotency of power. 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 L'état 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, indeed, it is the easiest to upset, but with which it is at the same time the most difficult to dispense for a moment?”
With this extract I conclude, for the present, my remarks on self-government, and with them the enumeration of the guarantees and institutions which characterize, and in their aggregate constitute, Anglican liberty.
They prevail more or less developed wherever the Anglican race has spread and formed governments or established distinct 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 peculiar to ourselves. Those features which may, perhaps, be called the most characteristic are given in the following chapter.
American liberty belongs to the great division of Anglican liberty. It is founded upon the checks, guarantees, and self-government of the Anglican race. 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 enumerated, form part and parcel of our liberty. There are, however, features and guarantees which are peculiar to ourselves, 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 abstract 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 without 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 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 Americans believe that to be the happiest political state of things in which a republican government is the fittest; nor that republicanism 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 peculiarly 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 Scottish peers, and had she given some proportionate precedence to American noblemen, e.g., had she allowed an American duke to take rank 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 independence, 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 blessings that we were not obliged to pass through an internal convulsion in order to establish independence and republican freedom. It was a blessing, a fortune, vouchsafed us, not made by us—a fact which we must never forget when we compare our struggle, or that of the Netherlands, with the real revolutions of other countries, if we desire to be just.
But it is not only republicanism that forms one of the prominent features of American liberty; it is representative republicanism and the principle of confederation or federalism, which must be added, in order to express this principle correctly. We do not only consider the representative principle 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 instance in history. The Netherlands, which served our forefathers 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 republic, 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.
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 conscience. 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 mission which this country has to perform, with reference to Europe, requires this total divorce of state and church (not religion.) 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 constitution took care to forbid every state, and the United States collectively, from establishing any nobility. Even the establishment of the innocent Cincinnati Society gave umbrage to many. We have no right of primogeniture. 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 represented.
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 manumission 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 development and abstract reasoning. It results from the very nature of man, whom God has made an individual and a social being. His historical development results from the continuity of society. 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. Now, single men, entire societies, whole periods, will incline more to the one or to the other element, and both present themselves occasionally in individuals 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 republic for a large country. Yet they changed only what imperatively 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 profound knowledge, to imagine what must have been the consequence 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 new state of things.
They, on the contrary, adopted every principle and institution of liberty that had been elaborated by the English. They acted like the legislators of antiquity. Had they acted otherwise, 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 occasionally 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 attributes 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 were unquestionably subjects to the King of England before the independence of the United States) are not citizens in the sense of the constitution, 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 examination because the first basis of all justice, sympathy, is wanting 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 established, 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 recorded that the serious misrule of American cities has induced the opinion of many reflecting men that populous cities cannot 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. Indeed 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 American 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 prevent intimidation. Probably it would have that effect in England, 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. 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 recorded. The ayes and noes have sometimes a remarkable effect. It is recorded of Philip IV. of Spain, 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 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, ancient or modern; we admit freely to our citizenship those who are foreigners by birth, and we do not believe in inalienable allegiance.
We allow, as it has been seen, no attainder of blood.
We allow no ex post facto laws.
American liberty contains as one of its characteristic elements the enacted or written constitution. This feature distinguishes it especially from the English polity with its accumulative constitution.
We do not allow, therefore, our legislatures to be politically “omnipotent,” as, theoretically at least, the British parliament is. 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, by the legislature or by congress, is in conformity with the superior law—the constitution—or not; in other words, on the constitutionality 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 between a certain law and the constitution is brought before them.
I may add as a feature of American liberty that the American 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.
In conclusion, I would state as one of the characteristics of American liberty the freedom of our rivers. 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 efficient 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 statesmanship, 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 interruption. Free navigation had not even been re-established in 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. 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 becomes navigable. 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 overcome 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, and every one who cherishes his country and the essential interests of our species must be grateful that subsequent legislation, and decisions by courts, have firmly established 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 that of any other country. An able writer and comprehensive 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 Massachusetts 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.'
“The high duty of carrying into effect that great suggestion immediately occupied the attention of Mr. King and his associates. The honor of framing the clause—which secures, ‘not for a day, but for all time,’ freedom of commerce over an unbroken 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 inhabitants 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.'
“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,” which we enjoy, and have first enjoyed, of all confederacies, ancient or modern. It gives the absolutely free use of the noblest river system extending over a continent.
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 pregnant times proves 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 practical 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 well as interesting at this very period, when the government of a large nation is avowedly engaged in suppressing all liberty and in establishing the most uncompromising monarchical absolutism.
I do not know a single guarantee contained in the foregoing pages, which might not be accompanied by a long historical 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 realities, 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 politics. 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 democratic, has assumed the sway over liberty, and thus to try the gauge 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 resorted, 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 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 magnified and irritating evil—laws which afterwards serve to oppress 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 freedom. 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 delator, the informer, the sycophant, are sure accompaniments of absolutism. 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 absolute 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 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 governments hostile to liberty endeavor to rule without appropriations, 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 commentary 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 appropriations, 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 legislature 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 yielding 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. Napoleon 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 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.
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 dispensing power, and Louis Napoleon affirmed, when yet president 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, 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 everything 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.
Liberty requires that every one should be judged by his common court. All despots insists 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 freemen. The English were roused by it to resistance; Napoleon 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 offence it is to deprive a man of his lawful 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 practically by the fact that, although our courts are never closed, yet, for particular reasons arising out of the case under consideration, 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 education. History, in a certain point of view, may be called the great precedent. History is of all branches the most nourishing 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. The best 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 “legislative 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 permanently 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 published, and which will place the jurors under the almost exclusive 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 particular. 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.
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 reality, if we shall find that at any period it has taken actual root, or in theory, if it have remained such, and never practically 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 independent of the other branches of government. The separation 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 philosophical system; and, if we find no such institutions or guarantees 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 intended for the protection of individual rights or the preservation 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 breaking 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 supreme 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 individuals, and declare whether individual rights, publicly guaranteed, 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 themselves, 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 development, 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 indirectly 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 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.
No one, I suppose, would expect the senate, first established by Napoleon I. and then called the 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 is believed in France, as has been said, to consist in the absolute rule of the majority.
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 constituente, 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 Frenchmen, 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 communist strives to do; the other—if it means democratic absolutism—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: “It is nothing but a sovereignty of brute force, and a most absolute form of absolute 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.” 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 instincts wanting in them; but we fear that he was right in this saying with reference to a large part of the French people. Present events seem to prove it.
This equality is again very generally mistaken for uniformity, so that it would naturally lead of itself to centralization, even if the French had not contracted a real passion for centralization 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; it is the exceeding partiality of the French for logical neatness and consistency 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 enthusiasm, if the expression be permitted, applied to the vast field of political practice.
It seems that we can explain the cry of République démocratique 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, Industry, 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 watchword, 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 desirable 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 showing 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 nobility? 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 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 frequently observe in individuals in regard to liberty and despotism.
It is evident how nearly allied this desired equality and uniformity, together with universal but uninstitutional suffrage, and that kind of sovereignty which is in addition confounded with absolute power, are to those political extravagances 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 conception 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 realizing the fearful theory of Hobbes; and 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 “sovereignty of the individual.” All extremes in politics meet.
There is no greater error than the idea of making the vote or election the sole basis of liberty—of believing that, with the establishment of an extensive or universal suffrage, we set up 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 general 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, 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 fundamental principle; at the same time the government is elective; the abbot is always chosen by the brothers. When once the choice is made, they lose all liberty, they fall under the absolute domination of their superior. Moreover, in imposing obedience on the monks, the rule orders that the abbot consult them. Chap. iii. expressly says, ‘Whenever anything of importance is to take place in the monastery, let the abbot convoke 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 suitable.’ 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 numerous body of electors, or by all male adults, or even by the whole population, male and female. The high priest or president in the polity of that stupendous outrage called Mormonism is elective, and the Mormons themselves call their government a theo-democracy; 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 continuous and permanent revelations of the deity, not only on dogmatic 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 communism such as Mohammed never dared to embody in his politico-religious system.
The unicameral system must be mentioned here as a feature 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 Gallican, unity. He wants his government to be a solid unit. 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 receive 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 parliamentary government, by which nothing is meant but a government 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. According 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 which are the products of mutual modification and mutual toleration, 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 Republicans on account of our decentralization. Rousseau 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 system 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 periods in which the government made war upon liberty. They cannot, however, be considered a valid guarantee in so concentrated a government as the French, and in a country in 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, especially when no institutional guarantees of self-government exist.
It must have plainly appeared that liberty seems to me efficiently 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 appropriately 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 imperium. 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 freedom 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 principles in a manner peculiar to their character and circumstances; and, oh the other hand, that it is the rule of all spreading advancement of humanity that the full amount of what has been gained by patience, blood, or fortunate combinations is transferred 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 Testament, 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 theology 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 prepared 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 cannot otherwise prepare nations for enjoying liberty than by beginning 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 sad 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 civilization, 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 having 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 a stable government, or a literature, or for Christianity? That in, which man rises highest, and manifests himself most intellectually—Christianity—is believed to be 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 becoming to the philosopher to say that such a portion of our race will not be able to do so. When the Greek scholars from Constantinople carried the last embers of Grecian civilization and intellectuality over the West; when 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. Anglican 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 institutions exclusively French and original.” As to the 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 législatif, if there be any element of a representative 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 civilization 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 because 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” —the Israelites. It is thus with all wisdom, all great ideas and comprehensive systems. They take root with “an honorable 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 excellent 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 with itself. Narcissus is not the symbol of patriotism, but 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 periods of art; such the periods of Abelard and scholastic philosophy; 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. Thus made uniform, nations receive and give more freely. If it has pleased God to appoint the Anglican 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.
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 placemen. We have seen that self-government, in general, requires 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 exception, 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 government. 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 permanent love and a habit of liberty. How is the one to be engendered, and the other to be acquired?
There is no mathematical formula by which liberty can be solved, nor are there laws by which liberty can be decreed, without other aids. We gain no more by throwing power unchecked 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,”
and thus flattery is no foundation for liberty. Each one of us may be declared a sovereign, as every Frenchman was designated in a solemn circular, 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 omnipotence 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 aesthetical love of freedom. The 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 acknowledged 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 government 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 acknowledged 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 service 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 appearance, 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 desirable to inquire first into the nature of institutions in general.
According to the highest meaning which the term has gradually acquired, an institution is a system or body of usages, laws, or regulations of extensive and recurring operation, containing 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 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 consideration of its pervading importance, its extensive operation, the innumerable relations it affects, and the security which its continuance 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 religion-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 institution, 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 institutions 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, 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 Goldsmiths' Company at London, our senate, our representatives, our congress, our state legislatures, 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, expedient 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 Hippolytus, calls the book of common prayer a “national institution.”
The noun Institution is, indeed, formed of the verb to Institute, 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. We institute an inquiry; but an inquiry is not an 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 crescive 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 spontaneous growth have become in course of time mixed institutions. 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 veneration, 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 general 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 recognized 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 enumerates 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 incorporated 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 institution? or how can the institution outlast the individual officers existing at any given period? How could the house of representatives of congress be an institution, which every one 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.
It is this very fact, passed over by Dr. Arnold, that constitutes 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 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 continuity, 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 multitude 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 majority, 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 expansion. 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. Impulsiveness 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 happening 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 constitution, 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 peculiar action, and it must not owe its continuance to the arbitrary 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; 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 important 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 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 abstract terms. Abstracting was a process at which he was no good hand. 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 facilities for the formation of abstract terms, while yet the people 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 restricted 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 Achæans, but their word for our union was simply “the common body,” (τὸ χοινόν.)
Few nations have evinced a greater and more constant tendency 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 institutional 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 figurative 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 integral part of the still more comprehensive institution called the British government or the state. In the same way are the lord chancellor, the justice of the peace, the coroner, institutions; 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 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 defined 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 development 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 prescript 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 homogeneous and expansive action, but also its great power, its grandeur, 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 additional 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 institution of the Society of Jesus, and some of the modern Trades' 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 consciousness of man, which is inseparable 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 individuals, moved by the same impulse, conviction, or desire, whether good or bad—whether scientific, æsthetic, or ethical, patriotic or servile, self-sacrificing or self-seeking—will countenance 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 example; by the silliness which at times pervades whole classes or communities; by the sublime, calm heroisn 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 perpetrate. 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 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 almost 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 instinctively 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 oppression 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 general. 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 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 Netherlanders, 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 nations. 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 institutional 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, sometimes, 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 absolute 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 brilliant 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 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 favorable 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 institution 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 institution, but assuredly not propitious to liberty. Of all the Hellenic tribes the Spartans were probably the most institutional, 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.
the institution, continued.—institutional liberty.—institutional 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 character which Joseph Smith possessed as an institutor. Thrice blessed is a noble idea, perpetuated in an active institution, as charity in a hôtel-dieu; thrice cursed, a wicked idea embodied in an institution.
The title of institutor is coveted even by those who represent ideas the very opposite to institutions.
Louis Napoleon Bonaparte, when he inaugurated his government, dwelt on the “institutions” he had established, with pride, or a consciousness that the world prizes the founding of good institutions as the greatest work of a statesman 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 become hollow, and in this latter case they are almost sure to be 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 institution 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, 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 deceiving and changing the proper venue, as lawyers would express it. The form of a representative government, without the spirit, true principles, and sincere guarantees of self-government 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. 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 measures 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 obstinately 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 institutions or a union of harmonizing systems of laws instinct with self-government. It is essentially of a co-operative character, and thus the opposite to centralism. It is articulated 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 aspect 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 carried 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 self-government and self-government.
According to the Anglican view, institutional self-government 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, religious, cultural, scientific, charitable, and industrial, to germinate and to grow—provided they are moral and do not invade the equal rights of others. It receives its aliment from a pervading 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 judiciary be bona fide institutions. The first French constituent assembly pronounced the separation of the three powers, and was obliged to do so, since it intended to demolish the absolutism 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 surface 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; and 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.)
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.”
Anglican self-government requires that every institution of local self-government shall have the right to pass such bylaws 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 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 characteristic and important, and stands out like the comprehensive and peculiar doctrine of the Anglican warrant. The character 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;” 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, 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 abrogated or lessened even by their own consent—much less, therefore, by the consent of their delegates in parliament.”
It may be added that by-law does not mean, as many suppose, additional law, law by the side of another or complementary, but it means law of the place or community, law of the by or pye—that is, of the collection of dwellers, or of the settlement as we, in America, perhaps would naturally express it.
effects and uses of institutional self-government.
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 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 penetrating with its quickening power all the branches of government, 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 corresponding obligations such as no other system does. It is the only self-government which is a real government of self, as well as by 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 countries, which struggle nevertheless for liberty, is generally a minority, and often even a small minority.
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 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.
Institutional self-government is of great importance regarding the obedience of the citizen.
Obedience is one of the elements of all society, and consequently 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 country acknowledges it as a prerogative to obey laws.
The obedience of a loyal free citizen is an act of self-directing 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 prescribed 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 ourselves 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, were we not an institutional people under the authority of institutional 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 government is to be done away with, far more serious and disseminated 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.
Institutional self-government distinguishes itself above all others for tenacity and a formative, assimilative, and transmissible 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 conquerors. 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 military 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 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 perhaps 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 British empire in the East show the formative and vital character 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 governments destitute of self-government and peace.
The words of Mr. Everett are doubtless 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 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 million of French peasants in Lower Canada, tenaciously adhering 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.” 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 intelligent a nation as the French to establish flourishing colonies? 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-government; 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.
The assimilative power and transmissible character of the institution are closely connected with its tenacity and formative 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 freedom 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 approached nearer to the republic than setting aside a ruling dynasty; her colonies are, politically speaking, barren dependencies. They do not bloom into empires. The colonies of Spain also teach a grave lesson on this subject.
The power by which institutional self-government assimilates various and originally discordant elements is forcibly shown in the United States, where every year several hundred thousand emigrants arrive from countries under different governments. 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 institutional liberty. We, of all nations on earth, are most interested 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 received 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 Mongolians; 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.
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 applicability 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 perceiving the cause, “Poor nations! in spite of all your enlightening men, of all your wisdom, you remain subject to the caprices of fashion like individuals.” Now, it is pre-eminently institutional 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 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 furnish 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, was the favorite saying of Socrates, and liberty is the noblest of all things. It must be defended, developed, conquered, 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
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 absolutism; and if it does so, it must begin with eliminating its antagonistic government. Every return to concentrated despotism, therefore, creates an additional necessity of revolution, and throws an increased difficulty in the way of obtaining freedom.
dangers and inconveniences of institutional self-government.
Institutional self-government has its dangers and inconveniences, 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 originally 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 governments 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 provincial 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 neutralize 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-government 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 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 legislature, 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, may be, as has been already mentioned. Wisdom, practice, political forbearance, and manly independence can alone decide the proper degree of union, and the necessary balance.
One of the dangers of a strongly institutional self-government is that the tendency of localizing may prevail over the equally necessary principle of union, and that thus a disintegrating 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 confederation. 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 extreme 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 Portuguese grandeur, though it resulted from the opposite cause.
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, is an instance of the ruinous effect of purely partial self-government. The nation, as nation, 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 government, 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 commentaries on the universal adage, that what is everybody's business is nobody'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-government lies in this, that the importance of the institutional character may be forgotten, that the limitations may be considered as fetters, and that thus the people may come to forget that part of self-government which relates to the being governed, 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 important 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 dangers. In this lies the fearful responsibility of demagogues. “Take power, bear down limitation,” is their call on the people, 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.”
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 general morality.
It is these dangers that give so great a value to constitutions, if conceived in the spirit of liberty. The office of a good constitution, besides that of pronouncing and guaranteeing the rights of the citizen, is that, as a fundamental law of the state, it so defines and limits he 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.
A constitution, whether it be an accumulative one, as that of Great Britain, or an enacted one, as ours, is always of great 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 constitutions 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-operation may lead to conflict. There is, however, occasional jarring 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 uncompromising 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 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 fanaticism?
When an institution has become effete; 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 convenient 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., representative houses without power or free action, courts-martial dictated to by a despot, elections without freedom, are fearful engines of iniquity. They bear the responsibility, without free agency. They are in practice what syllogism is without truthfulness. But this is no reproach to the institution 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 onesided 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 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 exemplified in Westminster Abbey and the Champ-de-Mars. Century after century the former has stood, and what course of historical development has flowed through it! What representative festivities, on the other hand, from the feast of the universal 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, imperial, royal, imperial-restorational, again Bourbonian, Orleanistic, socialistic, and uncrowned-imperialist and imperial—yet centralism has worked its steady dis-individualizing way through all. There are “sermons in stones,” and sermons in places.
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 continental languages with which I am acquainted, the corresponding 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 express that he was or wished to be considered the man of the people, when he said, somewhat soldierly: Je suis moi-même sorti de la canaille. In German, the words Volk and Nation 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 admiration, aped the pride of that class. It is a universal law of social degradation that it consists always of a chain of degraded 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 institutional 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 partial dependence upon them. The aristocracy of England, a patrician body, far more elevated than any continental nobility, still remained connected with the people, by the fact that only one of the patrician family can enjoy the peerage. 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
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 commentaries 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 government. This is frequently not only admitted by the absolutists, but in bad faith insisted upon. Continental servilists frequently 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 beginning. 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 field of civilization, succeeding generations, or other clusters of men, are not obliged to pass through all the stages of painful struggle, or tardy experience, which may have been the share of the pioneering nation.
The third additional remark I desire to make is, that institutional 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 participation. England was obliged to behold a far more degrading 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 fullest blaze of publicity, and mixed up with an amount of immundicity 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, was damaged by the people thus seeing that the purple is too scant to cover disgrace and vulgarity.
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 courtesans as with the prime ministers. The effect of this example of the court has been most disastrous to all France. The courts of England 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 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 generally 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 necessary; 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 progressive perfection. The sword does not plough deep.
This is the reason, it maybe 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.
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 institutions and a national representative government, that diplomacy 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.
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 somewhat more closely the peculiar attributes of centralization, 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 particular and detailed law) ought to be made so as to suit the given cases by the Lesbian canon, and ought to be applied so as to fit the exact demands.
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. Dr. Arnold, some five years later, expressed the same idea, when in the introduction 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 patrician 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 element of conservatism apparently high above the contending elements of progress and popular liberty. 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 more than to inquire whether the steady progress of England has not been toward a more and more fully developed institutional self-government and virtual republicanism, or whether the absolutists of the continent may be right 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 reason 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.” It will be our duty to consider more in detail the question, whether inorganic, bare, universal suffrage has any necessary and intrinsic connection with liberty or not, and to inquire into the consequences to which uninstitutional suffrage always leads. In this place I would only observe that if he means by republic a polity bearing within its 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-government, we have no more right to call it “the republic,” or 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 Cæsars, who were elected to their office, 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 in 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.
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 establishing and maintaining liberty—a difficulty far greater than that which a master mind has declared the greatest, namely, the founding of a new government.
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 appearing negative with reference to that which is vetoed, nevertheless is power in itself, and to rest civil liberty upon a system of mere vetoes would indeed be expecting life, action, growth, and that which is positive, from a system of negativism. 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 middle 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, 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 producing 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 hundred 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, would simply amount to dismembering, instead of constructing. 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 cannot hope for liberty in a pervading negation, but must find it in comprehensive action. All that is good or great is creative and positive. Negation cannot stand for itself, or impart life. But that negation which is necessary to check and refrain is found in the self-government of many and vigorous institutions, as they also are the only efficient preventives of the undue growth of power. If they are not always able to hinder it, man has no better preventive. When in the seventeenth 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 contrary, 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, 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 present themselves to the historian, but they are conditions upon 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 longevity alone is the object, nor that it can be obtained by institutions 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 progressive 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 incalculably dearer than ancient out-door civilization. Modern civilization requires immense production; it is highly expensive. Yet our liberty needs civilization as a basis and a prop; our progressive liberty requires progressive civilization, consequently progressive wealth—not, indeed, enormous riches in the hands of a few. Asia possesses to this day hoarded treasures in greater number than modern Europe has ever known them. We stand in need of immeasurable wealth, but it is diffused, widely-spread and widely-enjoyed wealth, necessary for widely-diffused and widely-enjoyed 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 Christian morality, Roman legality, and Teutonic individuality and independence, form the main elements of the great phenomenon 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.
insecurity op uninstitutional governments.—unorganized inarticulated popular power.
The insecurity of concentrated governments has been discussed 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 country 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 government 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 sheriff, her coroner—all survived domestic war and despotism, and, having done so, served as 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-government 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 remained 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 imprisonments. 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 questions 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 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 hardship, 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 absolutism, 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 Lacedæmonian government Lacedæmon 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 neither 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 government 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 Lacedæmon 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 cannot 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 destroying the government, in which case again the new government 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 political 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 organism; 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 accomplishment 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 absolutism. 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 that popular 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 democracy 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 protection, and liberty consists in a great measure in the protection 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 uninstitutional 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 assembled 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.
No evolution of public opinion, no debate, no gradual formation, 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 unorganized 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 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 assumes 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 absolutism—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 people 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.
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 such by popular power, if the commotion tended to a general change of government. It was the case in Rome when Cæsar 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 principate, 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 inquire, 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 become 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 remarkable 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 conferred by the people, liberty is far from being insured. On the contrary, inasmuch as this theory rests on the theory of popular absolutism, it is invariably hostile to liberty, and, generally, 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 ourselves 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.”
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.
“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.” 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 changing ministers, when England was his ally. But was he sincere 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 reference to liberty. Immolation brings death, though it should be self-immolation; and of the two species of political slavery, 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 connection 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 president of the whole, though he alone were left to be elected every four years by the sweeping majority of the entire country, from New York to San Francisco? Or what Englishman 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 public 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 carried out the old French idea of unity of power, of centralization, which appeared to the French, long before him, the summum 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 uncompromising 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 the present day. No one can understand the history of France who does not remember the ardor for uninstitutional 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 contrary, 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, uninstitutional 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 impassioned 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 experience 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, that theory, for the sake of brevity, may be called Rousseauism.
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 deceptively 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 prætorians may appoint the Cæsar; 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.
The Cæsars 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 Cæsars 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. Such was their theory. Julius, the first of the Cæsars, 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 actual state of the people, it will be allowed—not to consider the common fact that governments or leaders first do everything to corrupt the people or plunge them into civil wars, and then, “taking advantage of their own wrong,” use the corruption and bloodshed as a proof of the necessity to upset the government —it will be allowed, I say, that at any rate Cæsar 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 fearful decadence which stands on record; and that, unfortunately, the rulers vested with this imperatorial sovereignty 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 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 Cæsar's greatness may have been, he did net, at any rate, usher in a new and prosperous era, either of liberty or popular grandeur. What is the Roman empire after Cæsar? 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 spreading 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 sovereignty.
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 sovereignty, and once more to confound an apparently voluntary divestment of all freedom with liberty, is difficult to be understood 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 no 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 people 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 government and an enormous army —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 presenting 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 Cæsar and in Augustus the era of its tardy avénement.” 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 avénement of democracy 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 question: 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 considerable space, occasionally with surprising untenableness and inconsistency.
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 Deioces, 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 avénement of democracy”—though not a tardy one-and so clear a conception of imperatorial sovereignty without a suspicion of liberty, as a matter of course, since the whole refers to Asia, that the reader will not be dissatisfied with the extract.
“At this time (that is, after evil had made its appearance 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 Kurbai-r Gjabbo; and in Mongolian, Olana-ergukdeksen Chagran (the many-elected Monarch.)”
“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 importance 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 sentimental words, Fides Mutua, Liberalitas Augusta, Felicitas Publica.
Why, it may still be asked, did the Cæsars recur to the people 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 Cæsars, at any rate the very first, had actually 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 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 and that of intellectual consistency are so inbred in man that, wherever humanity is developed, a constant desire is observable 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. 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 commanded 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.
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, 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 constitution, used this remarkable expression: “the people” (confounding of course a set of people, a gathering of a part of the inhabitants of a single city, with the people) “never violate the constitution.”
Where such ideas prevail, the question is not about a change of ideas, but simply about the lodgment of power. The minds and souls are already thoroughly familiarized with the idea of absolutism, and destitute of the idea of self-government. This is also one of the reasons why there is so much similarity between monarchical absolutism, such for instance 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 compressive absolutism and centralism, except indeed the revolution of 1830. This revolution was undertaken to defend parliamentary government, and may be justly called a counter-revolution 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 absolutism on his head, could appeal to the universal suffrage of all France—he that had previously curtailed it, with the assistance 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 otherwise 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, occasionally 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.
If the imperatorial 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 enemy 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.”
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 objections. If private property is confiscated by a decree; if persons 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 colleagues, 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 people, except after a successful conspiracy against the existing powers or institutions, or a coup d'état, if the term be preferred, 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 cardinals 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 influencing 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. 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 Morny, 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 translation 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 influence the elections.
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 candidate, 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 Cæsar always exists before the imperatorial government is acknowledged and openly established. Whether the praetorians or legions actually proclaim the Cæsar or not, it is always the army that makes him. A succeeding ballot is nothing 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 VIIL, 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, because the power already assumed allows no discussion. There is no free press.
Although no reliance can be placed on wide-spread elections whose sole object is to ratify the assumption of imperatorial 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 majority. I have repeatedly acknowledged it; but it is unquestionably true that generally in times of commotion, and especially in uninstitutional countries, minorities rule, for it is minorities that actually contend. Yet, even where this is not the case, the popularity of the Cæsar does in no way affect the question. Large, unarticulated masses are swayed by temporary opinions or passions, as much so as individuals, and it requires 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, substantial 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 centuries 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 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 proclaiming 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, or to the means by which it is carried out; yet the legality and constitutionality of these means are of great, and frequently of greater importance than the measure itself. Even historians are frequently 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 evolving 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 sovereignty, whether there be actually a Cæsar or not—to popular 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 Peloponnesian war, or whether it rapidly pass over into the hands of a broadly named Cæsar. 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 institution—the self-sustaining and organic systems of laws.
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 centralism, 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 beg leave to offer a few remarks, which naturally suggest themselves, in connection with centralism and imperatorial sovereignty; both so prominent at this moment in France.
Centralism has given to Paris an importance which no capital 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 civilization produces, this is, doubtless, very agreeable and instructive. 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 æsthetical 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, 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.
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 superficial, 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, 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 government, 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 vulgar 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.
We live in an age which has justly been called the age of large cities. 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 overwhelming 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 instructive. London, far more populous, has far less influence than Paris; and London, incomparably richer, is far less brilliant 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 institutions.
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 worship of the capital. This singular idolatry was actually acknowledged 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 telegraphed to the departments, and adopted without any resistance from any quarter, civil or military, which cannot be explained 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 readiness 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 striking results which it is not in the power of governments on a 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 humanity; 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 regularity and consistent symmetry, together with the principle 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 mathematically regular city, or upon 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 evolution 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 everything by government, has fearfully increased from the moment that the imperatorial absolutism was declared: 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 imperial Rome, has been repeated since. No one who has attentively followed the events of our times stands in need of instances; they were offered by hundreds, and of a character that would make the most inveterate former tory-worship of the crowned person appear as an innocent blundering; but 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 newspapers 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 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 himself as a man of action, which seems to indicate a singular want of self-reliance and self-respect.
Centralized government scan 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 measure to this error. Huzzaing crowds are never substantial indications of any opinion, whether the crowds are voluntary or subpoenaed. “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 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 civilization 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-reliance, that this hyperbole, if it be not altogether an error, would have led to no such results with any nation less accustomed to centralism, absolutism, and an absorbing government. 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.
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 epigrammatic 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, shows 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!” Were then “the rulers and the people” not the populus? But their voice was assuredly not the vox Dei in this case. If populus 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 offences 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 offences? 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 influenced the whole succeeding history of civilization and the entire 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 diffused. 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 effects, where former ages thought they recognized direct and detached manifestations or interpositions of a superior power, and not the greater attribute of variety under eternal laws and unchanging principles.
When the whole of Europe was animated by one united longing to conquer the Holy Land, it appeared undoubtedly to 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 lands. 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 movement. 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 enterprises, 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.
I am under the impression that the famous maxim first came into use in the middle ages, at a contested episcopal election, when the people, by apparent acclamation, having elected one person, another aspirant believed he had a better right to the episcopate on different grounds or a different popular acclamation. That the maxim has a decidedly medieval character no one familiar with that age will doubt. The middle ages are, indeed, characterized by the fact that all Europe was parcelled out, not in states, but under a political system of graduated and encapsulated allegiance; but where this system failed to reach a sphere with its many ramifications, the same age bore a conclamatory character, especially in the earliest times. When a king was elected it was by conclamation. The earliest bishops of Rome were elected or confirmed by conclamation of the Roman people. Elections by conclamation always indicate a rude or deficiently organized state of things; and it is the same whether this want of organization be the effect of primitive rudeness or of relapse. Now the maxim we are considering has a strongly conclamatory character, and to apply it to our modern affairs is degrading rather than elevating them.
How shall we ascertain, in modern times, whether anything be the voice of the people? and next, whether that voice be the voice of God, so that it may command respect? For, unless we can do this, the whole maxim amounts to no more than a poetic sentence expressing the opinion of an individual, but no rule, no canon.
Is it unanimity that indicates the voice of the people? Unanimity in this case can mean only a very large majority But even unanimity itself is far from indicating the voice of God. Unanimity is commanding only when it is the result of digested and organic public opinion, and even then, we know perfectly well that it may be erroneous and consequently not the voice of God, but simply the best opinion at which erring and sinful men at the time are able to arrive.
Mr. Say informs us that when the first cotton manufactures were introduced into France, petitions from all the incorporated large towns, from merchants and silk-weavers, were sent to Paris, clamoring in vehement terms against the “ungodly-calico prints.” Rouen, now the busiest of all the French cotton manufacturing places, was among the foremost, and the petition of the united three corporations of Amiens ended thus: “To conclude, it is enough for the eternal prohibition of the use of printed calicoes, that the whole kingdom is chilled with horror at the news of their proposed toleration. Vox populi vox Dei.” This might well be considered as sufficient to prevent every reflecting man from using the maxim. We now know that the cotton tissue has become one of the greatest blessings of our race, giving comfort, health, and respectability to entire masses of men formerly doomed to tatters, filth, and its fearful concomitants, typhus and vice, and we know too that cotton manufacture is one of the most lucrative branches of French industry.
Unanimity of itself proves nothing worth being proved for our purpose. In considering unanimity, the first subject that presents itself to us is that remarkable phenomenon called Fashion—a phenomenon wellnigh calculated to baffle the most searching mind, and which has never received the attention it deserves at the hands of the philosopher, in every point of view, whether psychological, moral, economical, or political. Unassisted by any public power, by the leading minds of the age, by religion, literature, or any concerted action, it nevertheless rules with unbending authority, often in spite of health, comfort, and taste, and it exacts tributes such as no sultan or legislature can levy. While it often spreads ruin among producers and consumers, it is always sure to reach the most absolute czar and subject his taste. Though the head may wear a crown, Fashion puts her shears to its hair, if she has a mind to do so. Far more, powerful than international law, which only rules between nations, she brings innumerable nations into one fold, and that frequently the fold of acknowledged folly. How can we explain this stupendous phenomenon? It is not necessary to do so here. The fact, however, must be acknowledged. It is the most remarkable instance of unanimity, but will any one say that Fashion is a vox Dei? The very question would be irreverent were it not candidly made in a philosophical spirit.
Nor is the dominion of fashion restricted to dress and furniture, nor to the palate and minor intercourse. Bitter as the remark may sound, it is nevertheless true that there are countries void of institutions, where a periodical on political fashions might be published, with the same variety of matter as the Petit Courrier des Dames.
There was a fearful unanimity all over Europe in the sanguinary and protracted period of witch-trials, joined in by churchmen and laymen, Protestant and' Catholic, Teuton, Celt, and Sclavonic, learned and illiterate. If the fallacious and in some respects absurd “Quod ab omnibus, semper, ubique,” ever seemed to find an application, it was in the witch-trial from the earliest ages of history, and in all countries down to the time when very gradually it ceased to be ab omnibus, semper, ubique. But was Sprenger's sad Malleus Maleficarum on that account the voice of God? What fearful fanaticisms have not swept over whole countries with deplorable unanimity! The Romans were unanimous-enough when they slaughtered the worshippers of that God whose authority is invoked to dignify the voice of men in the fallacious maxim. If the voice of the people were the voice of God, the voice of the people ought not only to be unchangeable, but there ought to be one people only. Two nations frequently clamor for war, and both, under the motto Vox populi vox Dei, draw the sword against each other.
A remarkable degree of unanimity prevails in all those periods of excited commercial speculation, such as the Mississippi scheme in France, the South Sea scheme in England, the railway mania we have seen in the same country, or the commercial madness in our land some fifteen years ago.
If we carefully view the subject of unanimity, we shall find that in the cases in which vast action takes place by impelled masses—and it is in these cases that the maxim is invoked—error is as frequently the basis as truth. It is panic, fanaticism, revenge, lust of gain, and hatred of races that produce most of the sudden and comprehensive impulses. Truth travels slowly. Indeed, all essential progress is typified in the twelve humble men that fallowed Christ. The voice of God was not then the voice of the people. What the ancients said of the avenging gods, that they are shod with wool, is true of great ideas in history. They approach softly. Great truths always dwell a long time with small minorities, and the real voice of God is often that which rises above the masses, not that which follows them.
But the difficulty of fixing the meaning of this saying is not restricted to that of ascertaining what is the voice of God. It is equally difficult to find out what is the voice of the people. If by the voice of the people be meant, as was stated before, the organically evolved opinion of a people, we do not stand in need of the saying. We know we ought to obey the laws of the land. If by the voice of the people be meant the result of universal suffrage without institutions, and especially in a large country with a powerful executive, not permitting even preparatory discussion, it is an empty phrase; it is deception, or it may be the effect of vehement yet transitory excitement, or of a political fashion. The same is true when the clamoring expression of many is taken for the voice of the whole people.
In politics, as in other spheres, it is never the loudest who are the wisest, though they are those who are heard and whom flatterers pretend to treat as the people and as the utterers of the voice of God. Governments frequently rule nations as some of the French theatres are ruled. Paid applauders, called claqueurs, force many a piece through a long series of performances; and it is these very governments of claqueurs that resort most frequently to the Vox populi vox Dei. Yet Mademoiselle Mars, one of the most distinguished French actresses that have ever played, was in the habit of saying, How much better we would play if we cared less for applause!
Another instance, showing that no dependence can be placed upon the maxim, is that of proverbs. They are doubtless the voice of the people, and many of them contain much wisdom, but there are also many in favor of our worst passions and meanest dispositions.
The following rhymes are given by Trench in his Lessons in Proverbs, as “of an old poet:”
- “The people's voice the voice of God we call;
- And what are Proverbs but the people's voice,
- Coined first and current made by public choice?
- Then sure they must have weight and truth withal.”
A very large class of proverbs is directed against peasants and the laboring classes; against women, lawyers, physicians—indeed, against all the staple topics of former satire.
Whoever wishes to give great importance to a general movement, or sincerely believes it to be truly noble, calls it the voice of God. Pope Pius IX., in his proclamation of the 30th of March, 1848, says, in speaking of the general and enthusiastic movement of the Italians for Italy and Independence: “Woe to him who does not discern the Vox Dei in this blast,” etc. It cannot be supposed that the pope now considers that blast to have been the Vox Dei.
Sometimes the maxim is doubtless used in good faith, as the French at times use, without reserve, that favorite expression of theirs: The instinct of the masses; but generally, I think, Vox populi vox Dei is used either hypocritically or when people have misgivings that all may not be right, pretty much in the same manner as persons say that an argument is unanswerable, when they have a strong foreboding that it may be found very answerable.
Vox populi vox Dei has never been used in France so frequently as after the second of December, yet there are unquestionably thousands in that country who would find their religious convictions much bewildered, if they were obliged to believe that it was the voice of God which spoke through ballot boxes under the management of the most centralized executive in existence; and that the voice of the Deity requires a thousand intrigues among men for its utterance.
The doctrine Vox populi vox Dei is essentially unrepublican, as the doctrine that the people may do what they list under the constitution, above the constitution, and against the constitution, is an open avowal of disbelief in self-government.
The true friend of freedom does not wish to be insulted by the supposition that he believes each human individual an erring man, and that nevertheless the united clamor of erring men has a character of divinity about it; nor does he desire to be told that the voice of the people, though legitimately and institutionally proclaimed and justly commanding respect and obedience, is divine on that account. He knows that the majority may err, and that he has the right and often the duty to use his whole energy to convince them of their error, and lawfully to bring about a different set of laws. The true and stanch republican wants liberty, but no deification either of himself or others; he wants a firmly built self-government and noble institutions, but no absolutism of any sort—none to practise on others, and none to be practised on himself. He is too proud for the Vox populi vox Dei. He wants no divine right of the people, for he knows very well that it means nothing but the despotic power of insinuating leaders. He wants the real rule of the people, that is, the institutionally organized country, which distinguishes it from the mere mob. For a mob is an unorganic multitude, with a general impulse of action. Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor. The consequences are fearful, and invariably unfitting for liberty.
Whatever meaning men may choose, then, to give to Vox populi vox Dei, in other spheres, or, if applied to the long tenor of the history of a people, in active politics and in the province of practical liberty, it either implies political levity, which is one of the most mordant corrosives of liberty, or else it is a political heresy, as much so as Vox regis vox Dei would be. If it be meant to convey the idea that the people can do no wrong, it is as grievous an untruth as would be conveyed by the maxim, the king can do no wrong, if it really were meant to be taken literally.
However indistinct the meaning of the maxim may be, the idea intended to be [Editor: illegible word], and the imposing character of the saying, have, nevertheless, contributed to produce in some countries a general inability to remain in the opposition—that necessary element of civil liberty. A degree of shame seems there to be attached to a person that does not swim with the broad stream. No matter what flagrant contradictions may take place, or however sudden the changes may be, there seems to exist in every one a feeling of discomfort until he 'has joined the general current. To differ from the dominant party or the ruling majority appears almost like daring to contend with a deity, or a mysterious yet irrevocable destiny. To dissent is deemed to be malcontent; it seems more than rebellious, it seems traitorous; and this feeling becomes ultimately so general that it seizes the dissenting individuals themselves. They become ashamed, and mingle with the rest. Individuality is destroyed, manly character degenerates, and the salutary effect of parties is forfeited. He that clings to his conviction is put in ban as unnational, and as an enemy to the people. Then arises a man of personal popularity. He ruins the institutions; he bears down everything before him; yet he receives the popular acclaim, and, the voice of the people being the voice of God, it is deemed equally unnational and, unpatriotic to oppose him.
“Ever sincerely yours,