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 vi.

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.1 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.1 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,1 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.”1

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-tze1 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.1 Where it is allowed there is police government, but not the government for freemen. It is necessary that the person who executes the warrant be named in it. Otherwise the injured citizen, in case of illegal arrest, would not know whom he should make responsible; but if the person be named, he is answerable, according to the Anglican principle that every officer remains answerable for the legality of all his acts, no matter who directed them to be done. Indeed, we may say the special warrant is a death-blow to police government.1

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.”2

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.3 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,1 a trial by the law of the land, and by the lawful court—three points of the last importance. It moreover guarantees that the prisoner know for what he is arrested, and may properly prepare for trial. The habeas corpus act did by no means first establish all these principles, but numberless attempts to secure them had failed, and the act may be considered as the ultimate result of a long struggle between law and the individual on the one hand, and power on the other. The history of this act is interesting and symptomatic.1

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:”2 “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.”3

All our State Constitutions have adopted these important principles. The very opposite of this guarantee was the “lettre de cachet,” or is the arbitrary imprisonment at 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.4

There was in England, until within a recent date, a remark able deviation from the principles of personal liberty—the impressment. The crown assumed the right to force any able-bodied man on board a man-of-war, to serve there as sailor. There has always been much doubt about this arrogated privilege of the crown, and, generally, sailors only were taken, chiefly in times of war and when no hands would freely enlist. Every friend of liberty will rejoice that the present administration has taken in hand a new plan of manning the navy, by which this blemish will be removed.1

[1.]Political Ethics, chapter on Sovercignty.

[1.]The case is The Queen vs. Bernard. [It is, however, in itself right to punish conspiracies against foreign powers, when their base of operations is within our territory, because they are crimes committed on our soil, over which no other state has control, and also because they may involve us in unpleasant relations with foreigners. But in the case mentioned in the text the demand for new legislation was made in the spirit of intimidation.—The English claim to search our vessels in 1858 was dictated by the desire to ascertain whether a given vessel was really of foreign nationality, or an English vessel under false colors.]

[1.]The address and declaration of four thousand British merchants, presented in the month of April, 1853, to the emperor of the French, will forever remain a striking proof of British liberty; for in every other European country the government would have imprisoned every signer, if, indeed, the police had not nipped the petition in the bud; and it will also forever remain a testimony how far people can forget themselves and their national character when funds are believed to be endangered, or capital is desired to be placed advantageously. But I have alluded to it in the text as an instance only of popular interference with foreign governments, doubtless the most remarkable instance of the kind on record. Whether the whole proceeding was “not far short of high treason,” as Lord Campbell stigmatized it in the House of Lords, may be left undecided It certainly would have been treated as such during some periods of English history, and must be treated by all right-minded men of the present period as a most unworthy procedure.

To this must now be added the record of the tone which pervaded the address of the lord mayor and aldermen of London to Count Walewski, French Ambassador, in the early part of the year 1858, and the manner in which it was received, when Orsini had attempted to assassinate the count's master and cousin, having obtained his explosive weapons in England. The reply of the ambassador was submitted to, although rising to such a degree of impertinence that it was necessary, at a later period, diplomatically to explain and partially to unsay it.

[1.]In many countries, and even among hardly civilized tribes, it has been a rule that no one should enter a man's house without the consent of the owner. Missionaries tell us that the Yarriba people in Central Africa do not allow their king to enter a house, even to arrest a criminal, without the consent of the head of the family. So we are very often told that the trial by jury was known before England had its present name; but the question of importance is, how far a principle is developed, how securely it is guaranteed, how essential a part of a general system it is, and how strong it is to resist when public power should choose to interfere with it. The Chinese have no censorship, but this absence of censorship is not liberty of the press. The Romans cared very little about the religion of their subjects, (so that they were not Christians,) but this was not constitutional toleration or freedom of worship.

[1.]In the province of Kouang-St, containing mountainous regions.

[1.]A warrant to apprehend all persons suspected, or all persons guilty, etc. etc, is illegal. The person against whom the warrant runs ought to be pointed out. The law on this momentous subject was laid down by Lord Mansfield in the case of Money vs. Leach, 3 Burrow's Rep. 1742, where the “general warrant” which had been in use since the revolution, directing the officers to apprehend the “authors, printers, and publishers” of the famous No. 45 of the North Briton, was held to be illegal and void. [Comp. May, Constit. Hist., ii. chap. 11.]

[1.][For arrests which officers or even private persons are allowed by English law to make without warrant, see Blackstone's Com., iv. chap 21, pp. 292, 293, and the notes of the annotators on his text.]

[2.]The reader will find a copy of the Constitution of the United States in the Appendix.

[3.]This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I have copied by the permission of my esteemed and distinguished friend. I have left out all the legal references. The professional lawyer is acquainted with the book, and the references would be important to him alone.

[1.]Long imprisonments before trial are customary means resorted to on the continent of Europe in order to harass the subjects. Guerrazzi and other liberals were sentenced, in Tuscany, on the first of July, 1853, after having been imprisoned for fifty months before ever being brought to trial. It is useless to mention more instances; for long imprisonment before trial is the rule in absolute governments whenever it suits them.

[1.]The Appendix contains the habeas corpus act.

[2.]Paper No. 1xxxiv.

[3.]Blackstone's Commentaries, vol. i. page 136. Note, in the “Federalist.”

[4.]In 1854 a complete edition of the emperor's works was published. In that edition was a chapter headed De la Liberte individuelle en Angleterre. In it are the following passages:

“No inhabitant of Great Britain (excepting convicts) can be expelled from the United Kingdom. Any infraction of this clause (the habeas corpus act) would be visited with the severest penalties.” He remarks that we have no public prosecutor, the attorney-general interfering only on extraordinary occasions; and if criminals sometimes escape justice, personal liberty is the less endangered. “In England, authority is never influenced by passion; its proceedings are always moderate, always legal;” there is “no violation of the citizen's domicile, so common in France;” family correspondence is inviolate, and no passports bar the most perfect freedom of traffic,—” passports, the oppressive invention of the Committee of Public Safety, which are an embarrassment and an obstacle to the peaceable citizen, but which are utterly poweiless against those who wish to deceive the vigilance of authority.” A law deprived of the general support of public opinion would be a mere scrap of paper.

“It suffices for us to note this fact, that in France, where such jealousy is shown of everything which touches equality and national honor, people do not attach themselves sò religiously to personal liberty. The tranquillity of the citizen may be disturbed, his domicile may be violated, he may be made to undergo for whole months a preventive imprisonment, personal guarantees may be despised, and a few generous men shall raise their voices, but public opinion will remain calm and impassible as long as no political passion is awakened. There lies the greatest reason for the violence of authority; it can be arbitrary because there is no curb to check it. In England, on the contrary, political passions cease the moment a violation of common right is committed; and this, because England is a country of legality, and France has not yet become so; because England is a country solidly constituted, while France struggles by turns for forty years between revolutions and counter-revolutions, and the sanctity of principle has yet to be created there.”

[1.]The plan has not yet been published, but one of the ministers, Sir James Graham, said in the Commons, in April, 1853:

“The first point on which all the authorities consulted were agreed is, that whatever measures are taken, must rely for success on the voluntary acceptance of them by the seamen, and that any attempt to introduce a coercive mode of enlistment would be followed by mischievous consequences and failure.” The difficult question does not yet seem to be wholly settled (1859). It seems difficult to obtain a sufficient number of seamen to man the fleet in emergencies. In France seamen are drafted, as soldiers are for the army. [For the history of impressment, for the army as well as for the navy, down to 1860, comp. May, u.s., ii. 259 et seq. Until 1872 no law abolishing this practice was passed; but the practice itself seems to be in abeyance.]