Front Page Titles (by Subject) chapter xxiii.: in what civil liberty consists, proved by contraries. - On Civil Liberty and Self-Government
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chapter xxiii.: in what civil liberty consists, proved by contraries. - 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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in what civil liberty consists, proved by contraries.
I have endeavored to give a sketch of Anglican liberty. It is the liberty we prize and love for a hundred reasons, and which we would love if there were no other reason than that it is liberty. We know that it is the political state most befitting to conscious man. History as well as our own pregnant times proves to us the value of those guarantees, their necessity if we wish to see our political dignity secure, and their effect upon the stability of government, as well as on the energies of the people. We are proud of our self-government and our love of the law as our master, and we cling the faster to all these ancient and modern guarantees, the more we observe that, wherever the task which men have proposed to themselves is the suppression of liberty, these guarantees are sure to be the first objects of determined and persevering attack. It is instructive for the friend of freedom to observe how uniformly and instinctively the despots of all ages and countries have assailed the different guarantees enumerated in the preceding pages. We can learn much in all practical matters by the rule of contraries. As the arithmetician proves his multiplication by division, and his subtraction by addition, so may we learn what those who love liberty ought to prize, by observing what those who hate freedom suppress or war against. This process is made peculiarly easy as well as interesting at this very period, when the government of a large nation is avowedly engaged in suppressing all liberty and in establishing the most uncompromising monarchical absolutism.
I do not know a single guarantee contained in the foregoing pages, which might not be accompanied by a long historical commentary showing how necessary it is, from the fact that it has been attacked by those who are plainly and universally acknowledged as having oppressed liberty or as having been at least guilty of the inchoate crime. It is a useful way to turn the study of history to account, especially for the youth of free nations. It turns their general ardor to distinct realities, and furnishes the student with confirmations by facts. We ought always to remember that one of the most efficient modes of learning the healthful state of our body and the normal operation of its various organs consists in the study of their diseased states and abnormal conditions. The pathologic method is an indispensable one in all philosophy and in politics. The imperial time of Rome is as replete with pathetic lessons for the statesman as the republican epoch.
It would lead me far beyond the proper limits of this work, were I to select all the most noted periods of usurpation, or those times in which absolutism, whether monarchical or democratic, has assumed the sway over liberty, and thus to try the gauge of our guarantees. It may be well, however, to select a few instances.
In doing so I shall restrict myself to instances taken from the transactions of modern nations of our own race; but the student will do well to compare the bulk of our liberty with the characteristics of ancient and modern despotism in Asia, and see how the absence of our safeguards has there always prevented the development of humanity which we prize so highly. He ought then to compare this our own modern liberty with what is more particularly called antiquity, and see in what we excel the ancients or fall behind them, and in what that which they revered as liberty differed from ours. He ought to keep in mind our guarantees in reading the history of former free states, and of the processes by which they lost their liberty, or of the means to which the enemies of liberty have resorted, from those so masterly delineated by Aristotle, down to Dr. Francia and those of the present time, and he ought again to compare our broadcast national liberty with the liberties of the feudal age. He ought, lastly, to present clearly to his mind the psychologic processes by which liberty has been lost—by gratitude, hero-worship, impatience, indolence, permitting great personal popularity to overshadow institutions and laws, hatred against opposite parties or classes, denial of proper power to government, the arrogation of more and more power, and the gradual transition into absolutism; by local jealousies, by love of glory and conquest, by passing unwise laws against a magnified and irritating evil—laws which afterwards serve to oppress all, by recoiling oppression of a part, by poverty and by worthless use of wealth, by sensuality and that indifference which always follows in its train.
Liberty of communion is one of the first requisites of freedom. Wherever, therefore, a government struggles against liberty, this communion forms a subject of peculiar attention. Not only is liberty of the press abolished, but all communion is watched over by the power-holder, or suppressed as far as possible. The spy, the mouchard, the delator, the informer, the sycophant, are sure accompaniments of absolutism.1 The British administration under Charles II. and James II. looked with a jealous eye on the “coffee-houses,” and occasionally suppressed them. One of the first things done by the French minister of police, after the second of December, was to close a number of “cabarets” at Paris, and to put all France under surveillance. This may become necessary for a time under pressing circumstances, which may place a government in the position of a general in a beleaguered city, but it is not liberty; it is the contrary, and if the measure is adopted as a permanent one it becomes sheer despotism. So soon as Louis Napoleon had placed himself at the head of an absolute government, he not only abolished the liberty of the press, but he went much farther, as we have seen; he placed the printing-presses themselves and the sale of type under the police, and ordered that no press with the necessary printing materials should be sold or change hands without previous information being given to the police.
While it is a characteristic of our liberty that the public funds are under the peculiar guardianship of the popular house of the legislature, and that short appropriations are made for distinct purposes, especially for the army and navy, all governments hostile to liberty endeavor to rule without appropriations, or, if this is not feasible, by having the appropriations made for a long term and not for detailed purposes. The last decree of Napoleon III., relating to this subject, is that the legislative corps must vote the budget of each department en bloc, that is, in a lump, and either wholly reject or adopt it, without amendment. English history furnishes a long commentary on this point of appropriations. Charles I. lost his head in his struggle for a government without parliament, which then meant, in a great measure, without regular appropriations, or the assumption of ruling by taxation on royal authority. Wherever on the European continent it has been the endeavor to establish a constitutional government, the absolutists have complained of the “indecency” of making governments annually “beg” for supplies.
Liberty requires the supremacy of the law; the supremacy of the law requires the subordination of the army to the legislature and the whole civil government. The Declaration of Rights enumerates the raising and keeping a standing army without consent of parliament, as one of the proofs that James II. had endeavored “to subvert and extirpate the laws and liberties” of England; while all governments reluctantly yielding to the demands of liberty have struggled to prevent at least the obligation of the army to take the oath of fidelity to the constitution. The army is studiously separated from the people, and courted as peculiarly allied to the prince. Napoleon I. treated the army as the church was often treated in the middle ages—the main body in the state; and Napoleon III. lately said in a solemn speech that he desired to present the new empress to the people and the army, as if it formed at least one-half of the state and were a body separate from the people. When he gave eagles to the whole army at what is called the fete of the eagles, in 1852, he said: “The history of nations is in a great measure the history of armies,” and continued in a strain sounding as if it belonged to the times of the migration of nations.1
But English and American freemen will never forget that the highest glory of a great people, and that by which it most signally performs the task assigned to it in the furtherance of our race, are its literature and its law, if this consists in a wise system founded on justice, humanity, and freedom.
The supremacy of the law is an elementary requisite of liberty. All absolutism spurns, and has a peculiar dislike of, the idea of fundamental laws. Aristotle enumerates as the fourth species of government that in which the multitude and not the law is the supreme master; James II. claimed the dispensing power, and Louis Napoleon affirmed, when yet president under the republican constitution which prohibited his re-election, that if the people wanted him to continue in office he should do it nevertheless, and all his adherents declared that the people being the masters could do as they liked, which reminds us of the Athenians who impatiently exclaimed: “Can we not do what we list?” when told that there was a law forbidding what they intended to do.
The division of power, which was already observed as an important point in government by “the master of all that know,” is invariably broken down as far as possible by the absolutists. The judiciary is interfered with whenever its slow procedure or its probable results irritate the power-holder. The history of all nations, from the earliest times to Napoleon III.'s taking the trial on the legality of the Orleans spoliation out of the hands of the judiciary, proves it on every page.
Self-government, general as well as local, is indispensable to our liberty, but interference and dictation are the essence of absolutism. Monarchical absolutisms presume to do everything and to provide for everything, and Robespierre, in his “great speech” for the restoration of the Supreme Being, said: The function of government is to direct the moral and physical forces of the nation. For this purpose the aim of a constitutional government is the republic.1
Liberty requires that every one should be judged by his common court. All despots insists on extraordinary courts, courts of commission, and an easy application of martial law.
Forcible expatriation or deportation “beyond the seas” by the executive is looked upon with peculiar horror by all freemen. The English were roused by it to resistance; Napoleon III. began his absolute reign with exile and deportation. So did the Greek factions banish their opponents when they had the power of doing so, because no “opposition” in the modern sense was known to them. With them it was the blundering business of factions; moderns know better, and if they return to it, it is because despotism is a thing full of fear and love of show.
How great an offence it is to deprive a man of his lawful court and to judge him by aught else than by the laws of the land, now in the middle of the nineteenth century, will appear the more forcibly if the reader will bring to his mind that passage of Magna Charta which appeared to Chatham worth all the classics, and if he will remember the year when the Great Charter was carried. The passage, so pregnant to the mind of Chatham, is this:
“No freeman shall be taken, or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed, nor will we (the king) pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man, justice or right.”1
Publicity is a condition without which liberty cannot live. The moment it had been concluded by the present government of France to root out civil freedom, it was ordained that neither the remarks of the members of the legislative corps, nor the pleadings in the courts of justice, should be reported in the papers. Modern political publicity, however, consists chiefly in publication through the journals. We acknowledge this practically by the fact that, although our courts are never closed,2 yet, for particular reasons arising out of the case under consideration, the publication of the proceedings is sometimes prohibited by the judge until the close of the trial, but never beyond it.
Liberty stands in need of the legal precedent, and Charles I. pursued Cotton because he furnished Pym and other patriots with precedents, while the present French government has excluded instruction in history from the plan of general education. History, in a certain point of view, may be called the great precedent. History is of all branches the most nourishing for public life and liberty. It furnishes a strong pabulum and incites by great examples removed beyond all party or selfish views. The favorite book of Chatham was Plutarch, and his son educated himself upon Thucydides.1 The best historians have been produced by liberty, and the despot is consistent when he wishes to shackle the noble muse.
Sincere civil liberty requires that the legislature should have the initiative. All governments reluctant to grant full liberty have withheld it, and one of the first things decreed by Louis Napoleon after the second of December was that the “legislative corps” should discuss such propositions of laws only as the council of state should send to it The council of state, however, is a mere body of officers appointed and discharged at the will of the ruler.
Liberty requires that government do not form a body permanently and essentially separated from the people; all modern absolute rulers have resorted to a number of distinctions—titles, ribbons, orders, peacock-feathers and buttons, uniforms, or whatever other means of separating individuals from the people at large may seem expedient.
Liberty requires the trial by jury. Consequently, one of the first attacks which arbitrary power makes upon freedom is regularly directed against that trial. There is now a law in preparation in France, of which the outlines have been published, and which will place the jurors under the almost exclusive influence of the government.
Liberty requires, as we have seen, a candid and well-guaranteed trial for treason; all despotic governments, on the contrary, endeavor to break down these guarantees in particular. They arrogate the power of condemning political offenders without trial, or strip the trial for treason of its best guarantees.
But we might go through the whole list of safeguards and principles of liberty, and find that in each case absolutism does the opposite.
If the American peruses the Declaration of Independence, he will find there, in the complaints of our forefathers, almost a complete list of those rights, privileges, and guarantees which they held dearest and most essential to liberty; for they believed that nearly every guarantee had been assailed.
[1.]Much that relates to the history of the spy and informer, in ancient and modern times, may be found in the second volume of Political Ethics, where the citizen's duly of informing is discussed.
[1.]I quote the whole passage of this stupendous allocution, which no historian or political philosopher, had he discovered it, as Cuvier found and construed remains of animals, would have assigned to the middle of the nineteenth century. What becomes of England and the United States if the essence of history does not he in the development of the nation and especially of its institutions? The following are the exact words:
[1.]The words of Robespierre are sufficiently clear, if taken as an illustration of what has been stated in the text; otherwise, I own, the sense is not perfectly apparent.
[1.][I.e., chap. xxix. of the Charter of 9 Henry III., confirmed by Edward I. in the twenty-fifth year of his reign, and nearly agreeing with chapters xlvi. and xlvii. of John's Charter, as given in Appendix IV.]
[2.]Very scandalous judicial cases, offensive to public morals, are, in France, conducted with closed doors.
[1.]So Bishop Tomlinson tells as in the Life of his pupil.