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 xxviii.

dangers and inconveniences of institutional self-government.

Institutional self-government has its dangers and inconveniences, as all human things have, and if its success requires the three elements necessary for all success of human action—common sense, virtue and wisdom, it must be added that, while Self-Government accepts the ancient saying: Divide and rule, in a sense different from that in which it was originally meant, the opposite is equally true: Unite and rule, as history and our own times abundantly prove.

It has been stated that nothing is more common than governments which, fearing the united action of the nation, yet, being obliged to yield in some manner to the demand for liberty, try to evade it and to deceive the people by granting provincial representations or estates. In these cases division is indeed resorted to for the greater chance of ruling the people, because when separate they are weak, and one portion may be played off against the other, as the marines and sailors neutralize one another on board the men-of-war. In no period probably has this conduct of continental governments more strikingly shown itself than in that which began with the downfall of Napoleon and ended with the year 1848. But it must not be forgotten that by institutional self-government a polity has been designated that comprehends institutions of self-government for all the regions of the political actions of a society, and it includes the general and national self-government as well as the minute local self-government.

The self-government of a society, be this a township or a nation, must always be adequate to its highest executive; and when any branch is national, all the three branches must be national. The very nature of civil liberty, as we have found it, demands this. They must work abreast, like the horses of the Grecian chariot, public opinion being the charioteer. Had England, as she has now, a general executive, but not, as now, a general parliament, the self-government of the shires and towns, of courts and companies, would soon be extinguished. Had we a president of the United States and no national legislature, it is evident that either the president would be useless, and there would be no united country, or if the executive had power, there would be an end to the state self-governments, even if the president were to remain elective. Liberty requires union of the whole, whatever this whole, or Koinon, as the Greeks styled it, may be, as has been already mentioned. Wisdom, practice, political forbearance, and manly independence can alone decide the proper degree of union, and the necessary balance.

One of the dangers of a strongly institutional self-government is that the tendency of localizing may prevail over the equally necessary principle of union, and that thus a disintegrating sejunction may take place, which history shows as a warning example in the United States of the Netherlands. I do not allude to their Pact of Utrecht, which furnished an inadequate government for the confederacy, and upon which the framers of our federal constitution so signally improved, after having tried a copy of it in the articles of the confederation. I refer to the Netherlandish principle, according to which every limited circle and even most towns did not only enjoy self-government, but were sovereign, and to each of which the stadtholder was obliged to take a separate oath of fidelity. The Netherlands presented the very opposite extreme of French centralism. The consequence has been that the real Netherlandish greatness lasted but a century, and in this respect may almost be compared to the brevity of Portuguese grandeur, though it resulted from the opposite cause.1

The former constitution of Hungary, according to which each comitate had the right to vote whether it would accept or not the law passed by the diet,1 is an instance of the ruinous effect of purely partial self-government. The nation, as nation, must participate in it; and Hungary lost her liberty, as Spain and all countries have done which have disregarded this part of self-government.

Another danger is that with reference to the domestic government, the local self-government may impede measures of a general character. Instances and periods of long duration occur, which serve as serious and sometimes as alarming commentaries on the universal adage, that what is everybody's business is nobody's business. The roads, considered by the Romans so important that the road-law found a place on the twelve tables, and sanitary regulations, frequently suffer in this way. The governments of some of our largest cities furnish us with partial yet striking illustrations.

It might be added that one of the dangers of self-government lies in this, that the importance of the institutional character may be forgotten, that the limitations may be considered as fetters, and that thus the people may come to forget that part of self-government which relates to the being governed, and only remember that part which consists in their governing. If this takes place, popular absolutism begins, and one part rules supreme over the other.

We reply to these objections that it is a characteristic of absolutism that it believes men can be ruled by formulas and systems alone. The scholar of liberty knows that important as systems and institutions, principles and bills of rights are, they still demand rational and moral beings, for which they are intended, like the revelation itself, which is for conscious man alone. Everything in this world has its dangers. In this lies the fearful responsibility of demagogues. “Take power, bear down limitation,” is their call on the people, as it was the call of the courtiers on Louis XIV. Their advice of political intemperance resembles that which is given on the tomb of Sardanapalus, regarding bodily intemperance: “Eat, drink, and lust; the rest is nothing.”1

We must the more energetically cling to our institutional government, and the more attentively avoid extremes. At the same time, the question is fair whether other systems avoid the danger or do not substitute greater evils for it; and, lastly, we must in this, as in all other cases, while honestly endeavoring to remedy or prevent evil, have an eye to the whole and see which yields the fairest results. Nothing, moreover, is more dangerous than to take single brilliant facts as representatives of systems. They prove general soundness as little as brilliant deeds necessarily prove general morality.

It is these dangers that give so great a value to constitutions, if conceived in the spirit of liberty. The office of a good constitution, besides that of pronouncing and guaranteeing the rights of the citizen, is that, as a fundamental law of the state, it so defines and limits he chief powers, that, each moving in its own orb, without jostling the others, it prevents jarring and grants harmonious protection to all the minor powers of the state.2

A constitution, whether it be an accumulative one, as that of Great Britain, or an enacted one, as ours, is always of great importance, as indeed all law is important wherever there is human action; but, from what has been stated, it will be readily perceived that constitutions are efficient toward the obtaining of their main ends, the liberty of the citizen, only in the same degree as they themselves consist of an aggregate of institutions; as, for instance, that of the United States, which consists of a distinct number of clearly devised and limited as well as life-possessing institutions, or as that of England, which consists of the aggregate of institutions considered by him who uses the term British Constitution, of fundamental and vital importance. It will, moreover, have appeared that these constitutions have a real being only if founded upon numerous wide-spread institutions, and feeding, as it were, upon a general institutional spirit. Without this, they will be little more than parchment; and, important as our constitutions are, it has already been seen that the institution of the Common Law, on which all of them are based, is still more important. It cannot be denied that occasional jarring takes place in a strongly institutional government. It is, as we have called it, of a co-operative character, and all co-operation may lead to conflict. There is, however, occasional jarring of interests or powers, wherever there are general rules of action.

This jarring of laws, and especially of institutions, so much dreaded by the absolutists, whose beau-ideal is uncompromising and unrelieved uniformity, is very frequently the means of development, and of that average justice which constitutes a feature of all civil liberty. If there be anything instructive in the history of free nations, and of high interest to the student of civil liberty, it is these very conflicts, and the combined results to which they have led. It must also be remembered that liberty is life, and life is often strife, in the social region as in that of nature. If, at times, institutions lead to real struggles, we have to decide between all the good of institutional liberty with this occasional inconvenience, and absolutism with all its evils and this occasional avoidance of conflicting interests; for even under an absolutism it is but occasional. What domestic conflicts have there not been in the history of Russia and Turkey!

The institution unquestionably results in part from, and in turn promotes, respect for that which has been established or grown. This leads occasionally to a love of effete institutions, even to fanaticism; but fanaticism, which consists in carrying a truth or principle to undue length, irrespective of other truths and principles, equally important, besets man in all spheres. Has absolutism not its own bigotry and fanaticism?1

When an institution has become effete; when nothing but the form is left; when its life is fled—in one word, when the hull of an institution remains, and it has ceased to be a real institution, it is inconvenient, dangerous, or it may become seriously injurious. Nothing, as I stated before, is so convenient for despotism, as the remaining forms of an obsolete freedom, or forms of freedom purposely invented to deceive. A nobility stripped of all independence, and being nothing but a set of court retainers, the Roman senate under the emperors, the court of peers under Henry VIII., representative houses without power or free action, courts-martial dictated to by a despot, elections without freedom, are fearful engines of iniquity. They bear the responsibility, without free agency. They are in practice what syllogism is without truthfulness. But this is no reproach to the institution in general, nor any reason why we ought not to rely upon it. Many an old church has served as a den for robbers. Shall we build no churches? If the institution is effete, let it be destroyed, but do it, as Montesquieu says of laws in general, “with a trembling hand,” lest you destroy what only appeared to your onesided view as effete.

Still more vigorously must the battering-ram be directed against institutions which from the beginning have been bad, or which plainly are hostile to a new state of things. There are institutions as inconsistent with the true aim of society, though few are as monstrous, as the regularly incorporated prostitutes of ancient Geneva were. They must be razed. All historical development contains conservatism, progress, and revolution, as Christianity itself is most conservative and most revolutionary. The vital question is, when they are in place. And from all that has been stated, it must have appeared that the institution greatly aids in the best progress of which society is capable, that which consists in organic changes, changes which lie in the very principles of continuity and conservatism themselves.

There are no countries on the European continent where such constant and vast changes are going on, in spite of all their outer revolutions, as in the United States and England, for the very reason that they are institutional governments—that there exists self-government with them; yet they move within their institutions. This truth is symbolically exemplified in Westminster Abbey and the Champ-de-Mars. Century after century the former has stood, and what course of historical development has flowed through it! What representative festivities, on the other hand, from the feast of the universal federation of France in 1790 to the distribution of eagles to the army in May, 1852, have succeeded each other on the latter—revolutionary, conventional, republican, imperial, royal, imperial-restorational, again Bourbonian, Orleanistic, socialistic, and uncrowned-imperialist and imperial—yet centralism has worked its steady dis-individualizing way through all.1 There are “sermons in stones,” and sermons in places.

[1.]We may also mention as a want of union, the fact that unanimity of all the states was required for all the most important measures, such as taxation and war

[1.]The author of the famous Oceana proposed a similar measure for England, as St. Just, “the most advanced” follower of Robespierre, did for France.

[1.]“The epitaph inscribed upon the tomb of Sardanapalus, ‘Sardanapalus, the son of Anacyndaraxos, built Anchiola and Tarsos in one day: eat, drink, and last; the rest is nothing,’ has been quoted for ages, and its antiquity is generally admitted.”—Layard's Nineveh, vol. ii. p. 478.

[2.]Constitutions, therefore, must not be changed too easily or too frequently; for, if a constitution be almost periodically changed, by the sovereign power of the people, it is obvious that the absolute power of the people in a degree enters as an element of government. Absolutism, therefore, is approached. Parliament is theoretically omnipotent in a political sense; the people, with us, are politically omnipotent; and if the people enact new constitutions every five or ten years, the convention sits, in reality, as an omnipotent parliament.

[1.]I have expressed my view on this subject in an address to a graduating class. I copy the passage here, because I believe the truth it contains important

“Remember how often I have endeavored to impress upon your minds the truth, that there is no great and working idea in history, no impu'se which passes on through whole masses, like a heaving wave over the sea, no yearning and endeavor which gives a marking character to a period, and no new institution or new truth, which becomes the substantial addition that a certain age adds to the stock of progressive civilization—that has not its own caricature and distorted reflection along with it. No Luther rises with heroic purpose, without being caricatured in a Carlstadt. The miracle wrought by Him to whom it was no miracle, is mimicked in toyish marvels for easy minds. The communists are to the dignity of labor what the hideous anabaptists were to the Reformation, or tyrannical hypocrites in England to the idea of British liberty in a Pym or Hampden. There was a truth of elementary importance conveyed in the saying of former ages, however irreverent it may appear to our taste, that Satan is the mimicking and gumacing clown of the Lord. I will go farther, and assert, that no great truth can be said to have fairly begun to work itself into practice, and to produce, like a vernal breath, a new growth of things, if we do not observe somewhere this historic caricature. Has Christianity itself fared better? Was the first idea, which through a series of errors led to the anchorites and pillar saints, not a true and holy one? Does not all fanaticism consist in recklessly carrying a true idea to an extreme, irrespective of other equally true ones, which ought to be developed conjointly, and under the salutary influence of mutual modification? There is truth in the first idea whence the communist starts, as much so as there is truth in the idea which serves as a starting-post for the advocate of the ungodly theory of divine right; but both carry out their fundamental principle to madness, and, ultimately, often run a muck in sanguinary ferocity. Do not allow yourselves, then, to be misled by these distortions, or to be driven into hopeless timidity, which would end in utter irresolution, and a misconception of the firmest truths.”

[1.]The following is taken from a late (1852) French paper. It is of sufficient symbolic interest to find a place in a note:

In 1790, on the 14th of July, the anniversary of the taking of the Bastile was celebrated by what was called the Fète of the Universal Federation of France. Delegations were sent to it by every department, city, town, and village in the country, all eager to manifest their enthusiasm for the revolution of 1789. Every hundred of the National Guards was represented by six members; and there were also six deputies from every regiment of infantry, and four for every regiment of cavalry. These “confederates,” as they were styled, were all entertained by the inhabitants of Paris, who are said to have rivalled each other in hospitality. In order to afford facilities to the immense number of spectators who were expected on the Champ-de-Mars, over twelve thousand workmen were employed to surround it with embankments. Fears, however, being still entertained that the work would not be completed in time, all Paris turned out to assist. Men, women, and children, the National Guard, priests even, and sisters of charity, all took part in it. The Abbè Sieyès and Viscount Beauharnais were seen tugging together at the same wheelbarrow. At the entrance to the field was erected an immense triumphal arch; while in the centre was raised an altar, called the Altar of the Country, at which officiated Talleyrand, then bishop of Autun. A bridge of boats was stretched across the Seine, near the Champ-de-Mars, where since has been erected the bridge of Jena.

In 1791, on the 18th of September, there was a splendid Fète for the publication of the constitution, and for receiving the oath of fidelity to it from Louis XVI.

In 1792, on the 15th of April, the Fète of Liberty was celebrated. The centre of attraction was an enormous car, in which was placed a statue of Liberty, holding a liberty-cap in one hand, and in the other a club. To such an extent was the principle of freedom carried on this occasion, that there was not a single policeman present to preserve order. The master of ceremonies was armed only with an ear of corn: nevertheless, there is said to have been no disorder.

In 1793, there was a fête in honor of the abolition of slavery. On the 10th of August of the same year, there was a fête for the acceptance of the constitution of 1793. The president of the convention received eighty-three commissioners from the departments; after which the registers upon which were inscribed the votes of the Primary Assemblies were brought to him, and he deposited them upon the “Altar of the Country,” amid the firing of cannon, and the rejoicing of the people, who swore to defend the constitution with their lives. On the 2d of December following, the Fête of Victories took place, in celebration of the taking of Toulon. On this occasion the Altar of the Country was transformed, by the poet-painter David, into a temple of immortality.

In 1794, on the 21st of January, the anniversary of the death of Louis XVI. was celebrated by all the principal authorities going to the Altar of the Country and renewing their oath of hatred to royalty. On the 9th of June of the same year, the Fête of the Supreme Being commenced at the Tuileries, and was terminated on the Champ-de-Mars. In the centre of the plain a “Mountain” was thrown up, surmounted by an oak. On the summit of the mountain were seated the representatives of the people; while near them were a number of young men, with drawn swords in their hands, in the act of striking a symbolical figure of the “monster fanaticism.”

In 1796, on the 21st of January, the anniversary of the death of Louis XVI. was again celebrated. All the public functionaries renewed once more their oath of hatred to royalty, and the people spent the day singing the Marseillaise, Çà ira, and various patriotic songs. On the 30th of March following, the Fête of Youth took place, on occasion of arming all the young men over sixteen years of age; and on the 30th of April, on the proposition of Carnot, the Fête of Victories was celebrated.

In 1798, on the 20th of March, was the Fête of the Sovereignty of the People. On the tenth Vendémiaire, there was a funeral fête in memory of General Hoche. On the tenth Messidor, the Fête of Agriculture took place, with a great display of chariots, cattle, fruits, etc. During the five supplementary days of the revolutionary year, there was a series of fêtes, with an exposition of all the products of French industry, on the Champ-de-Mars.

In 1801 there were fêtes in memory of the foundation of the Republic, and in celebration of general peace, which were attended by the First Consul.

In 1804, on the 10th of November, Napoleon, then emperor, repaired to the Champ-de-Mars, and there received the oath of fidelity and obedience from deputations representing all the corps of the army.

In 1814, on the 7th of September, the government of the Restoration distributed colors to the National Guard of Paris. The object of this distributior was to efface, if possible, even the memory of the eagles of the empire and of the tri-colored standard of the revolution. An altar, glittering with gold and costly drapery, was erected near the military school, and in front was placed the throne, occupied by Louis XVIII., who was accompanied by the Count of Artois, the Duke of Angoulême, and the Duke of Berri. Mass was celebrated by the archbishop of Paris, M. Talleyrand-Périgord, uncle of the bishop of Autun, who, as we have seen, officiated at the Fête of Federation in 1790. The National Guards defiled before the throne, while the band played Vive Henri IV and Charmante Gabrielle.

In 1815, on the 1st of June, there was a fête in celebration of the return of the emperor. Napoleon appeared on the throne with his three brothers. A mass was performed; the constitution was acclaimed with enthusiasm; and the air was rent with cries of Vive Napoléon! The oath was taken with enthusiasm. Napoleon addressed the soldiers from the throne in the following words:

“Soldiers of the National Guard of Paris; soldiers of the Imperial Guard; I confide to you the imperial eagle, with the national standard. You swear to defend it with your lives, if need be, against the enemies of the country and this throne. You swear never to rally under any other banner.”

During the restoration, the Champ-de-Mars was used chiefly for reviews of the National Guard; the most notable of which was the last one passed by Charles X., when the citizens manifested that hostility to the king which was a prelude to the revolution of 1830.

In 1837 there was a grand fête in honor of the marriage of the Duke of Orleans, on which occasion the crowd in the Champ-de-Mars was so great that twenty-four persons were suffocated or crushed to death. During most of the reign of Louis Philippe, however, the principal gatherings in the Champ-de-Mars were on occasion of military reviews and horse-races.

In 1848, on the 22d of May, the Fête of Concord was celebrated with great pomp. The Moniteur alluded to the occasion thus:

“This solemnity was celebrated with an éclat enhanced by the magnificent weather. Under so clear a sky, and surrounded by so many joyful countenances, how was it possible to experience any feelings but those of love, conciliation, and harmony? What struck us, especially, was the attitude, so full of enthusiasm and confidence, of the vast concourse of people that crowded the Champ-de-Mars; cries, a thousand times repeated, of Vive la République! Vive la République Démocratique! Vive l'Assemblée Nationale! broke out, in formidable chorus, every instant, as if to proclaim the respect of the people for the institutions which they have adopted, and their invincible repugnance to every retrograde or reactionary idea.”

To the foregoing must be added the gigantic military fête on the 10th of May, 1852, called the Fête of Eagles, that is, the distribution of eagles to all the regiments of the army. A cock had been adopted as symbol of the first republic, owing either to an etymological misconception of the word Galha, or to an intended pun on it. The emperor adopted the Roman eagle; the Bourbons brought back the three fleurs-de-lys; and in 1830 the cock was restored. Louis Napoleon, when president for ten years, restored the imperial eagle. It must be owned, the cock looked very much as our turkey would have looked had we adopted Franklin's humorous proposition of selecting our native and respectable turkey, instead of our fine native eagle.

What feast will be celebrated on the same spot next? Whatever it may be, probably it will be nothing intrinsically different from the last.