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chapter xxii.: american liberty. - 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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American liberty belongs to the great division of Anglican liberty. It is founded upon the checks, guarantees, and self-government of the Anglican race.1 The trial by jury, the representative government, the common law, self-taxation, the supremacy of the law, publicity, the submission of the army to the legislature, and whatever else has been 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,1 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.)1 Doubtless, this unstinted liberty leads to occasional inconvenience; even the multiplicity of sects itself is not free from evils; but how would it be if this divorce did not exist? The Americans cling with peculiar fervor to this very principle.
We carry the principle of political equality much farther than any free nation. We had no colonial nobility, although some idea of establishing it was entertained in England when the revolution broke out, and the framers of the 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.2 We have no right of primogeniture.3 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.1
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.2 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,1 and that several free states have enacted laws against the ingress of people of color, which seem to be founded exclusively on the power which the white race possesses over the colored, and which elicit little examination because the first basis of all justice, sympathy, is wanting between the two races.2
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.1 Although the ballot is so strongly insisted upon in America, it is occasionally entirely lost sight of.2
“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,3 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.1
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.1 This characteristic, again, naturally led to the right and duty of our supreme courts in the states, and of the supreme court of the United States, to decide whether a law passed, 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.1
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 1848.2 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.1 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,2 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 established3 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.'1
“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,”2 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.
[1.]We have discussed the trial by jury, and even the grand jury, as elements of Anglican liberty. I am now obliged to add, that when this page was correcting for the press, the author learned that the state of Michigan had passed a law by which, after the 12th day of April, 1859, the grand jury is to be dispensed with as an ordinary instrument of criminal proceeding, though power is reserved to the judges to resort to it in certain Special cases. The people of Michigan have thus shown an inclination toward the French system. French, and continental European lawyers in general have an aversion to the grand jury.
[1.]Federalism is taken here, of course, in its philosophical and not in its party sense.
[1.]I lately saw a pamphlet, written by an American minister, in which the Constitution of the United States was called atheistical—an expression I have seen before. I do not pretend exactly to understand its meaning. I suppose, however, that the word atheistical is taken in this case as purely negative, and as equivalent to not mentioning God, not, of course, as equivalent to reviling the deity. Even in this more moderate sense, however, the expression seems to me surprising. There was a time when every treaty, nay, every bill of lading, began with the words, In the name of the Holy Trinity, and every physician put the alpha and omega at the lop of his recipe. Whatever the sources may have been from which these usages sprang, I believe it will be admitted that the modern usage is preferable, and that it does not necessarily indicate a diminished zeal. The most religious among the framers may not have thought of placing the name of God at the head of our constitution, for the very reason that God was before their eyes, and that this occasion did not suggest to them the idea of specially expressing their belief. Nee deus intersit nisi dignus vindice nodus.
[2.]In Europe, where an accurate knowledge of the American state of things did not exist, it was, I believe, universally considered as the beginning of a new nobility, and pointed out as a glaring inconsistency.
[3.]We can do entirely without it as to property in land. Our abundance of land does not require it; but there are countries in which the constant parcelling of land led to such a ruinous subdivision that the governments were obliged to establish a minimum beyond which land shall not be allowed to be divided, and which, thus undivided, goes either to the oldest or the youngest of the sons. The late president von Vincke, one of the most distinguished Prussian statesmen, mentioned in an elaborate report on the extreme division of land, that there had been a lawsuit in the Rhenish province about a square foot or two of vineyard land. Such cases, probably, are of frequent occurrence in China. What would be said, in those densely-peopled countries, of our Virginia or worm-fences, which waste a strip of land five feet wide throughout the South and West?
[1.][Since Dr. Lieber published these words, in 1859, the system of slavery has disappeared, and perfect, or nearly perfect, political equality of all colors exists.]
[2.]This is treated more fully in the Political Ethics.
[1.]The Dred Scott case, already so famous, but which will become far more famous still in the course of our history.
[2.]See p. 260, note 1.
[1.]There is an instructive article on voting in the Edinburgh Review, of October, 1852, on Representative Reform. The writer, who justly thinks it all-important that every one who has the right to vote for a member of parliament should vote, proposes written votes to be left at the house of every voter, the blanks to be filled by him, as is now actually done for parish elections. There existed written votes in the early times of New England, and people were fined for not sending them. It was not necessary to carry them personally to the poll. These written votes prevailed in the middle ages. For this and other subjects connected with elections, see the paper on elections in the Appendix.
[2.][The ballot is now introduced into England.]
[3.]Coxe's Memoirs of the Bourbons in Spain.
[1.]The character of the English and of our allegiance is treated at length in the Political Ethics. I there took the ground that even English allegiance is a national one, whatever the language of the law-books may be to the contrary. The following may serve as a farther proof that English allegiance, after all, is dissoluble. It appears from the New England charter, granted by James I., that he claimed, or had the right “to put a person out of his allegiance and protection.” Page 16, Compact, with the Charter and Laws of the Colony of New Plymouth, etc., Boston, 1836.
[1.]For the English reader I would add that the following works ought to be studied or consulted on this subject: The Constitution of the United States, and the constitutions of the different states, which are published from time to time, collected in one volume; the Debates on the Federal Constitution; The Federalist, by Hamilton, Madison, and Jay; the Writings of Chief-Justice Marshall, Boston, 1839; the History of the Constitution of the United States, by G. T. Curtis, a work of mark; Mr. Justice Story's Commentaries on the Constitution of the United States; Mr. Calhoun's and Mr. Webster's Works; Mr. Rawle's work on the Constitution, and Mr. Frederic Grimké's Considerations upon the Nature and Tendency of Free Institutions, Cincinnati, 1848. To these may be added the Course of Lectures on the Constitutional Jurisprudence of the United States, by W. A Duer, Boston, 1856, [and Pomeroy's Constitutional Law, New York, 1868.] An entire literature of its own has accumulated, by this time, on the constitution, jurisprudence, and constitutional history of the United States. The chief of the enumerated works will suffice to lead the student to the more detailed works of this department.
[2.]I owe to the friendship of Mr. Kapp (author of the Life of Baron Steuben) a book of remarkable interest, in many respects: Gottlieb Mittelberger's Journey to Pennsylvania in the Year 1750 and Return to Germany in 1754, Frankfurt, 1756. Mittelberger was organist and schoolmaster. He was seven weeks on his way from Würtemberg to Rotterdam, chiefly on the Rhine, The Journal of Albert Dürer, the great painter, gives the same lamentable account of his journey on the Main and Rhine.
[1.]A time may come—I believe it will—when the international law of our family of nations will acknowledge that those who border on a navigable river have a right, by nature, to sail down that river to the sea without hindrance, toll, or inconvenience.
[2.]Constitution, of the United States, section 9.
[3.]See, among others, Duer's Lectures on the Constitutional Jurisprudence of the United States, 2d edition, page 258 and sequ.
[1.]The original is in the possession of Dr. Charles King, president of Columbia College, New York.
[2.]This passage is copied from a Defence of the Right and the Duty of the American Union to improve the Navigable Waters, by Samuel B. Ruggles, a speech delivered in October, 1852. The speaker has given his views on this and kindred topics more extensively in a state paper of rare excellence, whether the contents, the historical survey and statistic knowledge, or the transparency of the style and language be considered. The paper bears the title, Memorial of the Canal Board and Canal Commissioners of the State of New York, asking for the Improvement of the Lake Harbors by the General Government, Albany, N. Y., 1858, and was, as such, adopted by the legislature of New York and presented to congress.