Front Page Titles (by Subject) chapter x.: liberty of conscience.—property:—supremacy of the law. - On Civil Liberty and Self-Government
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chapter x.: liberty of conscience.—property:—supremacy of the law. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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liberty of conscience.—property:—supremacy of the law.
8.Liberty of conscience, or, as it ought to be called more properly,1 the liberty of worship, is one of the primordial rights of man,2 and no system of liberty can be considered comprehensive which does not include guarantees for the free exercise of this right. It belongs to American liberty to separate entirely the institution which has for its object the support and diffusion of religion from the political government. We have seen already what our constitution says on this point. All state constitutions have similar provisions.3 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.1 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 property1 -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,2 which confiscation totally destroys.3 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 communistic1 ideas have endangered it, or, in particular cases, when private property must be given up for the public benefit,1 and laws or constitutions settle that it shall not be done except for equivalents given by the public through government.2
Our constitution goes farther. It distinctly enacts that “no state shall pass any law impairing the obligation of contracts,” which includes contracts with governments, and not only common contracts, but rights conferred for equivalents.3
The right of self-taxation has been mentioned as a guarantee of private property; for no matter what form taxation may assume, it must always consist in the appropriation of private property for public ends. Taxation has, however, another, purely political and highly important meaning, and we shall consider it under this aspect in another part of this work.
Every single subject here mentioned, monopolies,4 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.1
10. There can be no individual liberty where every citizen is not subject to the law, and where he is subject to aught else than the law—that is, public opinion organically passed into public will.1 This we call the supremacy of the law.2 All subjective arbitrariness is contrary to freedom. The law of a freeman is a general rule of action, having grown out of the custom of the people, or having been laid down by the 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,3 to a “government by commissions,” nor to extraordinary courts4 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.1 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.1
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.2
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.1 Occasionally, this principle acts harshly upon the officer; but we prefer this inconvenience to the inroad which its abandonment would make in the government of law. We will not submit to individual men, but only to men who are, and when they are, the organs of the law.2A 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.”1 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.1
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.1
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.
[1.]Conscience lies beyond the reach of government. “Thoughts are free,” is an old German saying. The same must be said of feelings and conscience. That which government, even the most despotic, can alone interfere with, is the profession of religion, worship, and church government.
[2.]See Primordial Rights in Political Ethics.
[3.][A state in the American Union might have a state church, although such an event is at present utterly improbable.]
[1.]This disqualification has at length been removed, in 1858. The words “upon the faith of a Christian” may be left out of the qualifying oath by a non-Christian. There are now (1859) three Jews in the house of commons.
[1.]It has been one of the main objects in my Essays on Labor and Property, to show the necessity and justice of individual property, and its direct connection with man's individuality, of which it is but the reflex in the material world around him. Man suffers in individuality, therefore in liberty, in the degree in which absolutism, which is always of a communistic nature, deprives him of the possession, enjoyment, production, and exchange of individual property. The Essays treat of property in a political, psychologic, and economical point of view.
[2.]The subject of individual inheritance has also been treated at length in the Essays mentioned in the preceding note.
[3.][Our author of course cannot object to fines, one of the most universal and most efficacious of penalties.]
[1.]I shall not have room to give a whole chapter to the subject of communism, or rather a single chapter would be wholly insufficient on this interesting subject, which, moreover, belongs to general political philosophy, rather than to our branch. I shall mention, therefore, this only, that I use in these pages the word communism in its common adaptation, meaning a state of society in which individual property is abolished, or in which it is the futile endeavor of the lawgiver to abolish it, such as hundreds of attempts made, in ancient times, in the middle ages, and in modern epochs, in Asia and in Europe, among the Spartans, the anabaptists, and French communists. I do not take here the term communism in that philosophical sense according to which every state, indeed every society whatever, necessarily consists of the two elements of individualism and socialism. The grave error of the socialist is that he extends the principle of socialism, correct in itself, to the sphere where individualism or separatism, equally correct, ought to determine our actions. The socialist is as mistaken an enthusiast as the individualist would be, who, forgetting the element of socialism, should carry his principle to the extreme of disjunctive egotism, and insist upon a dissolution of government and a disavowal of the sovereignty of society in political matters. It is instructive to observe how, also, in this case, the extremes meet; for works have been actually published by socialists which wind up with an entire denial of government, and an avowal of “individual sovereignty.”
[1.]See the constitution of the French Republic of 1848, in the Appendix. It contains a paragraph acknowledging private property, the family, etc. It was right to insert it, under the circumstances. If the Spartans had ever reformed their government, and passed from their socialism to individualism, they would have been justified in proclaiming the sanctity of the family and the acknowledgment of private cookery, however ludicrous this might be under other circumstances.
[2.]Points belonging to this subject and its primordial character were pronounced with clearness in the late pleadings in the French courts, when it was endeavored to show, unfortunately in vain, that Louis Napoleon had no right, even as a dictator, to confiscate the private property of the Orleans family, and that the courts were competent to restore it to the lawful owners.
[3.]See Judge Story, in his Commentaries on the Constitution of the United States, and his Opinion, as well as Chief-Justice Marshall's' in the celebrated Dartmouth Case, 4 Wheaton R. 518, and also Mr. Webster's Works for his argument in that case.
[4.]4 An act of parliament under James I. (21 James I. i. 3) prohibited all monopolies granted by the crown, after the courts had repeatedly, even under Elizabeth, declared certain monopolies null and void.
[1.]Paragraph fifty-nine, chap. i. vol. i. of History of Europe from the Fall of Napoleon to the Accession of Louis Philippe. Possibly an opportunity may offer itself some day to treat of this melancholy subject at length and in all its details.
[1.]We shall presently say more on the all-important word Law; but for an extensive discussion of the subject I must refer the reader to the Political Ethics.
[2.]It will hardly be necessary to state that the term supremacy of the law has a meaning only when by law we understand general and pre-existing rules of action expressing public will. Whether the name of law be given to personal decrees and arbitrary decisions, is not of the smallest importance. Napoleon, at St. Helena, expressed his surprise at having been called a despot; “I,” said he, “who have always acted by law!” This forcibly reminds us of a prominent French paper, the Univers, which lately stated that it was decidedly in favor of representative government, and that it was only necessary to know what is understood by representative government. The Univers—so said the paper itself—understands by this term a legislative corps, which represents the government. I have known, in an official capacity, a patient in a hospital for the insane, who perseveringly maintained that the difference between him and me consisted solely in the name. “Suppose,” he used to say, “we patients vote that we are sane and the out-door party is crazy?” “Don't you see?” he would add, with a knowing look.
[3.]Our constitution prohibits them.
[4.]By extraordinary courts of justice are meant, in this connection, courts of an extraordinary composition, not those that are simply directed to sit at an unusual time. The difference between justice, that is, right distributed among men by lawful and regularly appointed judges on the one hand, and the trials, by commissioners on the other hand, is well pointed out by an anecdote, such as Plutarch would not have disdained to give in his writings. Montaign, grand master of the household of Charles VI., was tried, tortured, and executed by Commissioners. He was buried in the church of the Celestines, and when Francis I. came to see his tomb, the king said, “This Montaign has been condemned by justice.” “No, sire,” answered the simple monk who guided the king, “he was condemned by Commissioners.” Histoire du Parlement de Paris, Amsterdam, 1769, ch. 4. Commissioners as judges form a “packed” court, do not feel lasting responsibility, and, in cases of importance to the executive, act on the foregone conclusion almost as distinctly as the “judges” of the Duke d'Enghien did. In this consists the danger of courts-martial, when established for the ordinary courts.
[1.]See the French charter in the Appendix.
[1.]The act by which martial law was declared in Ireland, during the rebellion in 1798, can be seen in Tytler's Essay on Military Law, appendix, No. 6. I copy this reference from an article, Martial Law, in Political Dictionary, London,1846.
[2.][For the question raised in our late war as to the president's power to do this, and for the limitation that the suspension of habeas corpus allows no illegal arrests, but only the detention of a prisoner arrested for good cause, comp Pomeroy's Constit, Law, p. 475.]
[1.]Extreme cases, as a matter of course, would be allowed to form exceptions.
[2.]I must again refer to the Political Ethics, chapter on Obedience to the Law.
[1.]Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal Maxims.
[1.]The very opposite to the Anglican principle, that each officer remains responsible for the legality of his own acts, prevails in China and Japan, and probably in all thoroughly systematized Asiatic despotisms. The superior officer is punished for the offence and even for the misfortime of the inferior, or for the accident which may have befallen the latter. The blows with the bamboo, which in China go down from the superior through many grades to the inferior, are well known. Before the late opening of the Japanese ports to the Americans and Europeans, a Christian vessel was driven on the shores of Japan. The governor ripped open his belly, and the viceroy in whose province the wreck had happened was imprisoned for one hundred days, although he was at the time a hundred miles from the place of the disaster. There is also, however, in these cases, to be taken into consideration the confusion of moral laws, and physical laws, and fate, which pervades the whole Chinese code, the ethics of Japan, the moral code of all early nations, and which we find in the early mythology of all nations. The earliest period of Greek history and mythology furnishes us with many illustrations.
[1.]For instance, in the scarcity of grain in the year 1766, Chatham prohibited exportation of grain. When parliament met, he read a passage from Locke, to show that what he had done was not legal yet right. Indemnity was passed for him and those who had acted under him. In 1818, ministers asked and obtained indemnity for the suspension of habeas corpus, for themselves and magistrates under them. Many other instances might be given. See Lieber's Legal and Political Hermeneutics, note to page 79. Acts of indemnity cannot be passed with us, because we have a constitution of which the legislature itself is but the creature, and we cannot pass ex post facto laws. All that remains for us to do in cases of absolute necessity or transcendent utility is to pass over the occurrence in silence; or congress may show its concurrence by aiding in the act. This was the case when Mr. Jefferson purchased the territory of Louisiana. Still, congress cannot make the act constitutional; though the silence of congress, or the countenance given by it to an act, gives it such apparent legality, that we find in the present time (1859) many men calling themselves adherents to the strictest interpretation of the constitution, and insisting on liberal interpretation, urging the purchase of the island of Cuba, as if the constitution, which itself declares that it permits nothing but what it distinctly and positively grants, had allowed the purchase of foreign territory.