The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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.
• 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.

chapter i.

introductory.

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.1

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.1 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.2 In England, power of all kind, even of the crown, has ever bowed, at least theoretically, to the supremacy of the law;3 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;1 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,1 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 history2 and the characteristic stamp and feature of our race, our age, our own country and its calling.

[1.]These views were laid before the civilized world in a pamphlet, published in the summer of 1858, well known to be countenanced by the ruling party in France, and have been frequently stated before. The code Napoleon flatters the vanity of the French people, and not being conscious of the fact that the most important element of political civilization is civil liberty, they take this code as the sum of political civilization, while it is peculiarly obtuse on all matters relating to political rights and man's protection as a freeman. How could it be otherwise with a code which proceeded from the civil law, and received, wherever it treats of personal rights, an impress from a man who, more perhaps than any other person on the stage of history, instinctively abhorred everything inclining toward liberty, even the first germs of freedom?

[1.]The necessity of a union of the different courts and bodies of the state was often perceived by those who felt called upon to resent the crown, and the corresponding desire to defeat it, by the crown. An instance was furnished in France in 1648, when Mazarin strove to annul the arrêt d'union.

[2.]I do not only allude to such bodies as the French parliaments, but to the fact that down to this century the continental courts of justice conducted, in innumerable cases, what is now frequently called the administrative business, such as collecting taxes, letting crown domains, superintending roads and bridges The early separation of the English judge—I do not speak of his independence, which is of much later date—and the early, comparatively speaking, independent position of the English church, seem to me two of the most significant facts in English history, and answer in a great measure the question so often asked, Why is it that France, constituted so much like England down to the twelfth or thirteenth century, lost her liberty, and England not? It partially accounts for the still more surprising fact that the most advanced portions of Spain, at one period, had a clearer perception of liberty than England had, but are now immeasurably behind her.

[3.]Even a Henry VIII. took care to have first the law changed when it could not be bent to his tyrannical acts. Despots in other countries did not take this trouble; and I do not know whether the history of any other period impresses the student with that peculiar meaning which the English word Law has acquired, more forcibly than this very reign of tyranny and royal bloodshed.

[1.]Trials, especially criminal trials, remained public in several countries, for instance, in the kingdom of Naples; but judicial and political publicity vanished everywhere except in England; nor was the publicity of such trials as those of Naples of much value.

[1.]In my Political Ethics.

[2.]I ask permission to draw the attention of the scholar to a subject which appears to me important. I have used the term Western history, yet it is so indistinct that I must explain what is meant by it. It ought not to be so. I mean by Western history the history of all historically active, non-Asiatic nations and tribes—the history of the Europeans and their descendants in other parts of the world. In the grouping and division of comprehensive subjects, clearness depends in a great measure upon the distinctness of well-chosen terms. Many students of civilization have probably felt with me the desirableness of a concise term, which should comprehend within the bounds of one word, capable of furnishing us with an acceptable adjective, the whole of the Western Caucasian portion of mankind—the Europeans and all their descendants in whatever part of the world, in America, Australia, Africa, India, the Indian Archipelago and the Pacific Islands. It is an idea which constantly recurs, and makes the necessity of a proper and brief term daily felt. Bacon said that “the wise question is half the science;” and may we not add that a wise division and apt terminology is its completion? In my private papers I use the term Occidental in a sufficiently natural contradistinction to Oriental. But Occidental, like Western, indicates geographical position; nor did I feel otherwise authorized to use it here. Europides would not be readily accepted. Japhethian would comprehend more tribes than we wish to designate. That some term or other must soon be adopted seems to me clear, and I am ready to accept any expressive name formed in the spirit and according to the taste of our language. The chemist and natural historian are not the only ones that stand in need of distinct names for their subjects, but they are less exacting than scholars. As the whole race is called the Caucasian, shall we designate the group in question by the name of Cis-Caucasian? It is more important for the scholar of civilization to have a distinct name for the indicated group, than it was for the student of the natural history of our race to adopt the recently formed term of prognathous tribes, in order to group together all the tribes with projecting jaws.