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 xxvi.

the institution, continued.—institutional liberty.—institutional local self-government.

Civilization, so closely connected with what we love in modern liberty, as well as progress and security, themselves ingredients of civil liberty, stands in need of stability and continuity, and these cannot be secured without institutions. This is the reason why the historian, when speaking of such organizers or refounders of their nations as Charlemagne, Alfred, Numa, Pelayo, knows of no higher name to give them than that of institutors.

The force of the institution in imparting stability and giving new power to what otherwise must have swiftly passed away, has been illustrated in our own times in Mormonism. Every observer who has gravely investigated this repulsive fraud will agree that as for its pretensions and doctrines it must have passed as it came, had it not been for the remarkable character which Joseph Smith possessed as an institutor.1 Thrice blessed is a noble idea, perpetuated in an active institution, as charity in a hôtel-dieu; thrice cursed, a wicked idea embodied in an institution.

The title of institutor is coveted even by those who represent ideas the very opposite to institutions.

Louis Napoleon Bonaparte, when he inaugurated his government, dwelt on the “institutions” he had established,1 with pride, or a consciousness that the world prizes the founding of good institutions as the greatest work of a statesman and a ruler.

Institutions may not have been viciously conceived, or have grown out of a state of violence or crime, and yet they may have become injurious in the course of time, as incompatible with the pervading spirit of the age, or they may have become hollow, and in this latter case they are almost sure to be injurious. Hollow institutions in the state are much like empty boxes in an ill-managed house. They are sure to be filled with litter and rubbish, and to become nuisances. But great wisdom and caution are necessary to decide whether an institution ought to be amputated or not, because it is a notable truth in politics that many important institutions and laws are chiefly efficient as preventives, not as positive agents. It is not sufficient, therefore, that at a glance we do not discover any palpable good produced by the institution, to justify us in destroying it. Antiquity is prima facie evidence in favor of an institution,1 and must not rashly be confounded with obsoleteness; but antiquity is certainly no proof against positive and grounded arguments. On the other hand, hollow institutions have frequently the serious inconvenience of deceiving and changing the proper venue, as lawyers would express it. The form of a representative government, without the spirit, true principles, and sincere guarantees of self-government in that body, or without being founded upon a candid and real representation, is worse than a government without these forms, because it eases the executive of the responsibility which without that hollow form would visibly rest on it alone.2 But here, again, it is necessary to observe that an institution may for a time become a mere form, and yet that very form may soon be animated again by a proper spirit. Parliament under Henry VIII. had become a subservient tool, highly noxious because it formally sanctioned many atrocious measures of the king. Yet it was that same parliament which rose to action and importance within fifty years, and within a century and a half became the virtual seat of government and supreme power in the state. There is hardly a portion of the penal trial which has not at times and for an entire period been abused; yet the existence of this very trial, intended to rest on the principle of independence, became in a better period the starting-point of a new order of things.

We must also mention the fact that there are perennial and deciduous institutions, or institutions avowedly fit only for a preparatory state of civilization. Their office is limited in duration, like that of the deciduous teeth, which must be drawn if they do not drop of themselves, or if they resist too obstinately their perennial substitutes.

We may here close our general remarks on institutions, and, now, investigate in what the force of the institution consists, when wisely taken into the service of liberty, and inquire into the characteristics of self-government in particular.

By institutional self-government is meant that popular government which consists in a great organism of institutions or a union of harmonizing systems of laws instinct with self-government. It is essentially of a co-operative character, and thus the opposite to centralism. It is articulated liberty, and thus the opposite to an inarticulated government of the majority. It is of an inter-guaranteeing, and, consequently, inter-limiting character, and in this aspect the negation of absolutism. It is of a self-evolving and genetic nature, and thus is contradistinguished from governments founded on extra-popular principles, such as divine right. Finally, institutional self-government is, in the opinion of our race, and according to our experience, the only practical self-government, or self-government carried out in the realities of life, and is thus the opposite of a vague or theoretical liberty, which proclaims abstractions, but, in reality, cannot disentangle itself from the despotism of one part over another, however permanent or changing the ruling part may be.

Institutional self-government is the political embodiment of self-reliance and mutual acknowledgment of self-rule. It is in this view the political realization of equality.

Institutional self-government is the only self-government which makes it possible to unite self-government and self-government.

According to the Anglican view, institutional self-government consists in the fact that all the elementary parts of the government, as well as the highest and most powerful branches, consist in real institutions, with all the attributes which have been ascribed to an institution in the highest sense of the term. It consists, farther, in the unstinted freedom and fair protection which are granted to institutions of all sorts, commercial, religious, cultural, scientific, charitable, and industrial, to germinate and to grow—provided they are moral and do not invade the equal rights of others. It receives its aliment from a pervading spirit of self-reliance and self-respect—the real afflatus of liberty.

It does not only require that the main functions of the government—the legislative, the judicial, and the executive—be clearly divided, but also that the legislature and the judiciary be bona fide institutions. The first French constituent assembly pronounced the separation of the three powers, and was obliged to do so, since it intended to demolish the absolutism which had grown up under the Bourbons; but so long as there existed an absolute power, no matter of what name, that could dictate, liberty was not yet obtained. Indeed, it may be said that an efficient division of power cannot exist, unless the legislature and the judiciary form real institutions, in our sense of the term.

These institutions, again, consist of many minor institutions, as an organism consists of many minor ones. Our congress is a real institution, but its component parts, the senate and house of representatives, are its constituent institutions, and the whole is in close connection with other institutions, for instance the state legislatures, or depends upon others such as the common law.

Yet the self-government of our country or of England would be considered by us little more than oil floating on the surface of the water, did it consist only in a congress and state legislatures with us, and in a parliament in England. Self-government, to be of a penetrative character, requires the institutional self-government of the county or district; it requires that everything which, without general inconvenience, can be left to the circle to which it belongs, be thus left to its own management; it consists in the presenting grand jury, in the petty jury, in the fact that much which is called on the European continent the administrative branch be left to the people. It requires, in one word, all the local appliances of government which are termed local self-government;1 and Niebuhr says that British liberty depends at least as much on these as on parliament, and in contradistinction to them he calls the governments of the continent Staats-Regierungen, (state governments, meaning governments in which all detail is directed by the general and supreme power.)2

It must be in view of this local self-government, combined with parliamentary freedom, that Sir Edward Coke said of the Justice of the Peace: “It is such a form of subordinate government for the tranquillity and quiet of the realm as no part of the Christian world hath the like, if the same be duly executed.”1

Anglican self-government requires that every institution of local self-government shall have the right to pass such bylaws as it finds necessary for its own government, without obtaining the consent of any superior power, even that of the crown or parliament, and that of course such by-laws shall stand good in the courts of law, and shall be as binding upon every one concerned as any statute or law. I believe that it is in the Anglican system of liberty alone that by-laws are enacted and have full force without consent of superior power. There are in other countries exceptions, but they are rare indeed, and very limited in power, while the by-law is the rule in our system. The whole subject of the by-law is characteristic and important, and stands out like the comprehensive and peculiar doctrine of the Anglican warrant. The character of self-government is moreover manifested by the fact that the right of making by-laws is not derived from any grant of superior power, but has been ever considered in the English polity as inherent in the local community—a natural right of freemen. Coke says, with reference to these laws and their force: “Of more force is the agreement of the folk and people than the grant of the king;”1 and in another place he says: “The inhabitants of a town, without any custom, may make ordinances or by-laws for any such thing which is for the general good of the public,2 unless indeed it be pretended by any such by-law to abridge the general liberty of the people, their inherent birthright, assured to all by the common law of the whole land, and which that common law, in its jealous regard for liberty, does not allow to be abrogated or lessened even by their own consent—much less, therefore, by the consent of their delegates in parliament.”3

It may be added that by-law does not mean, as many suppose, additional law, law by the side of another or complementary, but it means law of the place or community, law of the by or pye—that is, of the collection of dwellers, or of the settlement as we, in America, perhaps would naturally express it.4

[1.]The great ability of this man seems to be peculiarly exhibited in his mixture of truth and arrant falsehood, his uncompromising boldness and insolence, and his organizing instituting mind. Two men have met almost simultaneously with great success in our own times—Joseph Smith and Louis Napoleon. Of the two, the first seems the more clever. What he performed he did against all probability of success, without any assistance from tradition or prestige.

[1.]He meant, of course, the senate, legislative corps, and the council of state. Why he calls these new institutions we cannot see, but he evidently wished to indicate his own belief, or desired that others should believe, in their permanency, as well perhaps as in their own independent action. To those, however, who consider them as nothing more than the pared and curtailed remnants of former institutions, who do not see that they can enjoy any independent action of their own, and are aware that their very existence depends upon the mere forbearance of the executive; who remember their origin by a mere decree of a dictator bound by no superior law,—to those who know with what studied and habitual sneer “parliamentary governments” are spoken of by the ruling party in France, all these establishments appear in principle no more as real institutions than a tent on a stage. The “constitution” of the present empire (Napoleon I. always spoke of les constitutions de l'empire) is a close copy of the organic laws of the first empire. Now, few of my readers, probably, are aware that the very name of senatus-consultum, which played so important a part in the first empire, and by which the most violent fundamental changes were effected, was literally smuggled in by Napoleon I. He did so on occasion of the conspiracy of Ceracchi and others, when the council of state resolved that no law should be demanded, because that “would lead to discussion.” The list of condemned was passed by the council of state, upon a report of the police, not even signed, and the senate adopted and decreed it, as a senatus-consullum. Memoirs of Miot de Melito, (himself a counsellor of state,) vol. i. page 360 and sequ. It hardly deserves mention here, that Napoleon adopted the term from the Roman empire, which was his political beau-ideal, as he did many other terms and symbols.

[1.]I am aware that many persons believe nowadays so little in this truth that not only does antiquity of itself appear to them as a proof of deficiency, but they turn their face from the whole Past, as something to be shunned, thus forgetting the continuity of society, progress, and civilization. Mr. Guizot, in his lectures on the History of Representative Governments, delivered in Paris, 1820, found it necessary to warn his hearers against this horror of the Past. The reader will find remarks on the impossibility of “beginning entirely anew,” in my Political Ethics.

[2.]Count Miot relates that when Napoleon, as consul, desired to change the entire character of the house of representatives, in order to bring it under the exclusive control of the executive, but hesitated to make an organic change by mere violence, Talleyrand at last suggested that the other assembly had no business assigned to it; why should it not be made to sanction the measure? The history of the whole consulate, and of the early period of the empire, is a striking and continuous illustration of the assistance which a despot derives from mere forms of liberty without the reality of freedom. It would seem that Napoleon I. established certain forms, in conquered countries, for the very purpose of assigning the appearance of responsibility to certain bodies of the state, while he left the government absolute. It is difficult otherwise to explain the constitution which he decreed for Naples, (page 359, vol. ii. of Memoirs of Count Miot de Melito,) according to which “the national representation” was to consist of one chamber divided into five sections, namely: the clergy, nobility, proprietors, savans, and traders; the clergy, nobility, and savans holding their places for life; the others removable at pleasure by the government. The Roman senate, when it had become the recording body of the imperial decrees, gave much support to the emperors, by its appearance of an ancient institution.

[1.]T. Toulmin Smith's Local Self-government and Centralization, etc., Lon don, 1851

A work which many of my readers will peruse with interest and instruction is Ferdinand Béchard's Lois Municipales des Républiques de la Suisse et des États-Unis, Paris, 1852. Mr. Béchard is also the author of a Traité de l'Administration Intérieure de la France—a work which must be welcome to every inquiring citizen, because it pictures the details of French centralization, the most consistently carried-out centralization in existence.

Mr. Béchard uses repeatedly in his French work the English term Self-government.

[2.]A German work, the title of which is: An Account of the Internal Administration of Great Britain, by Baron von Vincke, edited by B. G. Niebuhr, Berlin, 1815. Niebuhr, who had spent a portion of his early manhood in England, published, and probably modelled in a great measure, this work in order to influence, if possible, the Prussian government to reorganize the state after the expulsion of the French, and to reclaim that kingdom from the centralization it had adopted in many respects from the invaders of Germany. Niebuhr was a follower and great admirer of Baron von Stein, who, when minister of Prussia, had given to the cities some degree of self-government by his Städte-Ordnung—causing not a little umbrage to Napoleon. Niebuhr desired to give increased life to the principles contained in the Cities' Charter, when he published the work I have mentioned.

[1.]Coke's Institutes, part 10, ch. xxi., Justices of the Peace. The Earl of Stratford, who, like his royal master, died so well, after, politically speaking, having lived so ill, bade his brother, on the scaffold, to take this among other messages to his eldest son: “Wish him to content himself to be a servant to his country, as a justice of the peace in his county, not aiming at higher preferment.” May 12, 1641. Rushworth, (who was on the scaffold,) vol. viii. p. 760. George Washington, after having aided in founding a great commonwealth, and after having been twice its chief magistrate, was a justice of the peace in his county, in which he was imitated by John Adams, and, perhaps, by other ex-presidents.

[1.]S Reports, p. 125.

[2.]Reports, p. 63.

[3.]Ibid., p. 64.

[4.]See Smith's Local Self-government, p 230. The quotations from Coke to which the three last notes refer are likewise in Smith's work, which I recommend to every reader.

By, in by-law, is the same syllable with which the names of many English places end, such as Derby, Whitby, and is etymologically the same with the German Bauen (to build, to settle, to cultivate,) which is of the same root with the Gothic Bua and Boo, and especially the frequentative Bygga, ædificare. See Adelung, ad verbum Bauen. It is a word which runs through all the Teutonic languages, ancient and modern.

Gradually, indeed, bye-laws came to signify laws for a limited circle, a small society, laws which any set of men have the right to pass for themselves within and under the superior law, charter, etc., which constitutes them into a society, and thus it happened that bye-law was changed into by-law, as we have by-ways, roads by the side of others. It cannot be denied that by-law at present is used in the sense of law passed by the side, as it were, of another man law. Very few persons know of the origin, and the present sense of by-law is doubtless that of collateral, expletive, or subordinate law. Such double derivations are not uncommon in our language. The scholar is probably reminded, by this note, of the term God, which we Christians derive from good, and a better, holier derivation, as to the sense of the word, we cannot give to it; yet the historical derivation, the verbal etymology, if I might so say, is an entirely different one. See Jacob Grimm's German Mythology, ad verbum Gott. The starting-point of adoration is, with all tribes, dread, acknowledgment of superior power; then follows acknowledgment of wisdom, and last of all acknowledgment of goodness, purity, holiness.