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 xxix.

advantages of institutional government, farther considered.

There are some additional observations suggested by the subject of institutional self-government and by that of the institution in general, which have been deferred in order to avoid an interruption of the general argument, and to which it is necessary now to turn our attention.

It seems to me a symptomatic fact that the term People has at no period, so far as I am acquainted with the domestic history of England, become in politics a term of reproach, not even in her worst periods. On the contrary, the word People has always been surrounded with dignity, and when Chatham was called “The people's minister,” it was intended by those who gave him this name as a great honor. It was far different on the continent. In French, in German, and in all the continental languages with which I am acquainted, the corresponding words sank to actual terms of contempt. The word Peuple was used in France, before the first revolution, by the higher classes, in a disdainful and stigmatizing sense, and often as equivalent with canaille—that term which played so fearful a part in the sanguinary drama of the revolution, and which Napoleon purposely used, in order emphatically to express that he was or wished to be considered the man of the people, when he said, somewhat soldierly: Je suis moi-même sorti de la canaille.1 In German, the words Volk and Nation came actually to be used as vilifying invectives, even by the lower classes themselves. The words never ceased, indeed, to be used in their legitimate sense, but they were vulgarly applied in the meaning which I have given. They acquired this ignominious sense because the nobility, a very numerous class on the continent, looked with arrogance upon the people, and the people, looking up to the nobility with stolid admiration, aped the pride of that class. It is a universal law of social degradation that it consists always of a chain of degraded classes who at the same time are or try to be in turn degraders, as oppression begets the lust of oppressing in the oppressed.

On the other hand, the English word People has never acquired, not even during the English revolution, that import of political horror which Demos had in the times of Cleon for the reflecting Athenian, or Peuple in the first French revolution. What is the cause of these remarkable facts? I can see no other than that there has always existed a high degree of institutional self-government in England—a very high degree, if we compare her to the continent. The people never ceased to respect themselves; and others never ceased to feel their partial dependence upon them. The aristocracy of England, a patrician body, far more elevated than any continental nobility, still remained connected with the people, by the fact that only one of the patrician family can enjoy the peerage. This distinction does not, therefore, indicate a social status, inhering in the blood; for that runs in the whole family. It indicates a political position1

Possibly most of my American and English readers may not perceive the whole import of these remarks; but let them live for a considerable time on the continent of Europe, and their own observations will not fail to furnish them with commentaries and full explanations of the preceding pages.

Another subject to which I desire to direct attention is Usage, which, as it has been stated, forms an important element of the institution, and, consequently, of institutional government. This is frequently not only admitted by the absolutists, but in bad faith insisted upon. Continental servilists frequently eulogize the liberty of the English, but wind up by pointing at their institutions and their widely-spread usages, observing that since these are necessary and do not exist on the continent, neither can liberty exist. It is a faithless plea for servilism. An adequate reply is this: that in no sphere can we attain a given end if we do not make a beginning and are not prepared for partial failures during that beginning. If spelling is necessary before we can attain to the skill of reading, we must not withhold the spelling-book from the learner; and we ought never to forget the law to which I have alluded in a previous part of this work, namely, that the advancement of mankind is made possible, among other things, by the fact that when a great acquisition is once made on the field of civilization, succeeding generations, or other clusters of men, are not obliged to pass through all the stages of painful struggle, or tardy experience, which may have been the share of the pioneering nation.

The third additional remark I desire to make is, that institutional and diffused self-government is peculiarly efficient in breaking those shocks which, in a centralized government, reach the farthest corners of the country, and are frequently of a ruinous tendency. This applies not only to the sphere of politics proper, but to all social spheres which more or less affect the political life of a nation. There are two similar cases in French and English history which seem to illustrate this fact with peculiar force.

Every historian admits that the well-known and infamous necklace affair contributed to hasten on the French revolution, by degrading the queen, and, through her, royalty itself, in the eye of France, which then believed in her culpable participation. England was obliged to behold a far more degrading exhibition—the trial of Queen Caroline, the consort of George IV. There was no surmise about the matter. Royalty was exhibited before the nation minutely in the fullest blaze of publicity, and mixed up with an amount of immundicity the exact parallel to which it is difficult to find in history. Every civilized being seemed to be interested in the trial. The portrait of the queen and her trial were printed on kerchiefs and sold all over the continent. The trial, too, took place at a somewhat critical period in England. Yet I am not aware that it had any perceptible effect on the public affairs of England. The institutions of the country could not be affected by it, any more than high walls near muddy rivers are affected by the slime of the tides. But royalty on the continent, trying at that very time to revive absolutism founded upon divine right,1 was damaged by the people thus seeing that the purple is too scant to cover disgrace and vulgarity.

Let an American imagine what would be the inevitable consequences of local or sectional errors and excitements, of which we are never entirely free, if we did not live under a system of varied institutional self-government; each shock would be felt from one end of our country to the other with unbroken force. Had we nothing but uninstitutional Gallican universal suffrage, spreading like one undivided sea over the whole, we could not continue to be a free people, and would hardly be a united people, though not free.

A similar remark may be made with reference to that period in French history which actually obliges the historian to be at least as familiar with the long list of royal courtesans1 as with the prime ministers. The effect of this example of the court has been most disastrous to all France. The courts of England under Charles II. and James II. were no better. The conduct of George I. and George II. added coarseness to incontinency. The English nobility followed very close in the wake of their royal masters; but with them the evil stopped. The people of England—England herself—remained comparatively untouched, and, while the court plunged into vices, the people went their own way, rising and improving. Had England been an uninstitutional country, the effect must have been the same as that which ruined France.

Another observation suggested by the subject which we are discussing is, that a wide-spread and penetrating institutional self-government has the same concentrative effect upon society which a careful and responsible occupation with one's own affairs and duties has upon the individual. This may indeed be counteracted and suspended by other and more powerful circumstances; but the natural effect of institutional self-government is, I believe, such as I have just indicated.

A large and active nation, which therefore instinctively seeks a political field of action for its energy, and which, nevertheless, is destitute of self-ruling, institutions, will generally turn its attention to conquest or any other increase of territory, merely for the sake of conquest or of increased extent, until a political gluttony is produced which resembles the immoderate desire of some farmers for more land. They neglect the intensive improvement of their farm, and are known by every experienced agriculturist to be among the poorest of their class. Expansion may become desirable or necessary; but a desire of extension merely for the sake of extension is at once the most debilitating fever of a nation and the rudest of glories, in which an Attila or Timour far excels a Fabius or a Washington. So soon as a nation abandons the intensive improvement of its institutions, and directs its attention solely to foreign conquest, it enters on its downward course, and loses the influence which otherwise might have been its share. The truest, most intense, and most enduring influence a people exercises upon others is through its institutions and their progressive perfection.1 The sword does not plough deep.

This is the reason, it maybe observed, why the historian, the more truly he searches for the real history of nations, and the more his mind acquires philosophical strength, becomes the more attentive to the political life manifested by the institutions of a people. It distinguishes a Niebuhr from a common narrator of Rome's many battles.1

On the other hand, we may observe a similar effect upon cabinets. It seems to me one of the best effects of local and national self-government, with its many elementary institutions and a national representative government, that diplomacy ceases to form the engrossing subject of statesmanship. Shrewd as English diplomacy has often proved, the history of that country, in the eighteenth century, is a totally different one from that of the other European countries in the same period. It seems as if continental statesmanship sought for objects to act on, in foreign parts, in concluding alliances and making treaties; in one word, as if diplomacy had been cultivated for the sake of diplomacy. Yet nothing is surer to lead to difficulties, to wars and suffering, than this reversed state of things.2

Some remarks on the undue influence of capitals in countries void of institutions would find an appropriate place here; but they are deferred until we shall have considered somewhat more closely the peculiar attributes of centralization, the opposite of institutional self-government.

Patience, united with energy, is as much an element of progress and efficient action in public concerns as in private matters. Mr. Lamartine has feelingly said some excellent truths on this subject, in his Counsellor for the People; but it does not seem possible to unite the two in popular politics and in the service of liberty, except by the self-government which we are contemplating. Patience, as well as desire of action, can exist separately without an institutional government, but in that case they are both destructive to freedom. Activity, without institutions, becomes a succession of unconnected efforts; patience, without institutions that constantly incite by self-government, and rouse as much as they form the mind, becomes mere submission, and ends in Asiatic resignation.

It would seem, also, that by a system of institutional self-government alone the advantage can be obtained of which Aristotle speaks, when he says that the psephisma (the particular and detailed law) ought to be made so as to suit the given cases by the Lesbian canon,1 and ought to be applied so as to fit the exact demands.

It is on account of the institutional character of the British polity in general and of the English constitution in particular—on account of the supremacy of the law and of the spirit of self-government which in a high degree pervades the whole polity and society of that country, that, long ago, I did not hesitate to call England a royal republic.1 Dr. Arnold, some five years later, expressed the same idea, when in the introduction to his Roman History he styles his country “a kingly commonwealth.” It will be hardly necessary to add that the British commonwealth is in many respects of a strongly patrician character, that it is occasionally aristocratic, and that the Englishman believes one of the excellencies of his polity to consist in the fact that it contains in the monarch an element of conservatism apparently high above the contending elements of progress and popular liberty.2 What advantages and disadvantages may be wound up in this portion of her constitution, and how far the actual position of Great Britain, the state of her population and her historical development, may make it necessary, it is not our task to investigate, any more than to inquire whether the steady progress of England has not been toward a more and more fully developed institutional self-government and virtual republicanism, or whether the absolutists of the continent may be right when they maintain that England is no bona fide monarchy, and by her unfortunate example is the chief cause of European unrest, by which of course the advocates of despotic power mean the popular longing for liberty.

My expression has been called “very bold.” Whether it be so or not is of little importance. I have given my reason why I have called the English polity thus, and I may be permitted to add that in doing so I meant to use no rhetorical expression, but philosophically to designate an idea, the truth of which has been ever since impressed on my mind more strongly by extended study and the ample commentaries with which the last lustres have furnished the political philosopher.

The opposite idea was expressed by a French politician of distinction, when, in writing favorably of Louis Napoleon after the vote which succeeded the second of December, but before the establishment of the imperial throne, he said: “universal suffrage is the republic.”1 It will be our duty to consider more in detail the question, whether inorganic, bare, universal suffrage has any necessary and intrinsic connection with liberty or not, and to inquire into the consequences to which uninstitutional suffrage always leads. In this place I would only observe that if he means by republic a polity bearing within its bosom civil liberty, the dictum is radically erroneous. If by republic, however, nothing is meant but a kingless state of politics, irrespective of liberty or the good government of freemen, it is not worth our while to stop for an inquiry. Nothing, indeed, is more directly antagonistic to real self-government than inorganic universal suffrage spreading over a wide dominion. I would also allude once more to the fact that universal suffrage is, after all, a modus, and not the essence. If, however, it leads to the opposite of self-government, we have no more right to call it “the republic,” or to consider it a form of liberty, than those ancient Germans had a right to be proud of their liberty, whom unsuccessful gaming had led into slavery, if Tacitus reports the truth.

According to the French writer, the Roman republic might be said to have continued under the Cæsars, who were elected to their office, and an elective monarchy would present itself as an acceptable government, while in reality it is one of the worst. For it possesses nearly all the evils inherent in the monarchical government, without its advantages, and all the disadvantages of a republic, vastly increased, without its advantages. History, I think, fully bears us out in this opinion, notwithstanding one authority—the only one of weight I can remember—to the contrary.1

[1.]The Dictionary of the Academy gives, as the last two meanings of the word Peuple—unenlightened men, and men belonging to the lowest classes. Trench, in his Lessons in Proverbs, quotes the French Jesuit Bonhours, who says: Les proverbes sont les sentences du peuple, et les sentences sont les proverbes des honnêtes gens. (But there are very wicked proverbs.) Honnête means, indeed, frequently something like the Latin honestus, and not exclusively our honest, but even with this addition the English term People could never have been contradistinguished from honnêtes gens. To these remarks we must add the mischievous error of giving the dignified name the people to some people gathered together in the street. We find, in the French papers and other publications, at the time of the first revolution, constant use of the term in such manner, as: le peuple has hanged a baker, etc., when the murder was committed by a labble of a few. This confusion of a few lawless people with the people, for whom the sovereign power was claimed, and, in turn, the arrogation of the sacred name by a few Parisians, may be observed throughout the history of the revolution.

[1.]Aristocratic as England is in many respects, it is nevertheless true that there is no nobility in the continental sense. The law knows of peers, hereditary lawgivers, but it does not know even the word nobleman. The peerage is connected with primogeniture, but there is no English nobility in the blood. The idea of mésalliance has, therefore, never obtained in England. There is no doubt that the little disposition of the English shown at any time to destroy the aristocracy is in a great measure owing to this fact, as doubtless the far more judicious spirit of the English peers to yield to the people's demands, if clearly and repeatedly pronounced, has contributed much. Mr. Hallam has very correct remarks on the subject of English equality of civil rights, where he speaks of the reign of Henry III.

[1.]It was the time when Haller wrote his Restoration of Political Sciences, in which he endeavors to excel Filmer, and does not blush to hold up uncompromising absolutism, although a native of Switzerland. Having secretly become a Catholic, he passed into the service of the Bourbons. The student of political science, desirous of making himself acquainted with the political literature of the European continent of this period in its whole extent, is referred to a German work of a high order, Robert von Mohl's History and Literature of the Political Sciences, 3 vols., large 8vo, Erlangen, 1855 to 1858, (containing 2052 pages.) The comprehensive erudition and liberal judgment of the author, as well as the patient research in the literature of the day and the past and of all civilized countries, make this work a storehouse of historical and critical knowledge concerning political literature, for which every scholar of this branch must feel deeply indebted to him.

[1.]The very etymology, with its present meaning, is significant.

[1.]There are persons among us who have fallen into this error; and it will always be found that they proportionately disregard our institutions, or are not imbued with esteem for institutional government. I lately received a pamphlet in which the author wishes for a confederacy embracing America from Greenland to Cape Horn. “Universal governments” were the dream of Henry IV., and again pressed into service by Napoleon. I am not able to answer the reader, why that confederacy should comprehend America only. There is no principle or self-defining idea in the term America. America is a name. The water which surrounds it has nothing to do with principles. Water, once the Disso-ciabile Mare, now connects. Polynesia ought to be added, and perhaps Further Asia, and why not Hindostan? Our oath of allegiance might be improved by promising to be faithful to the United States et cetera, as Archbishop Laud's famous oath bound the person who took it upon an Et Cetera.

[1.]The same phenomenon may be observed in the more philosophical division of history. People begin to divide the history of a nation by the monarchs, or by any other labelling. When they penetrate deeper, they divide history by the rise and fall of institutions, of classes, of interests, of great ideas. To divide the history of England by George I. and George II. is about as philosophical as if a geologist were to color a chart, not according to the great layers that constitute the earth, but by indicating where the people walking upon it wear shoes or sabots, or walk barefooted.

[2.]We ought to compare the repeated advice of the greatest of Americans, to beware of alliances, with the contents of such works as Raumer's Diplomatic Dispatches of the Last Century. It is for this reason that the present publicity of diplomacy has such vital importance.

[1.]The cyclopean walls in Greece and Italy, built before the memory even of the ancients, and many of which still stand as firm as if raised in recent times, have their strength in the irregularity of the component stones, and the close fitting of one to the other, so that no interstices are left even for a blade of grass to grow. An irregular polygonal stone was placed first; sheets of lead were then closely fitted to the upper and lateral surfaces. When taken off, they served as the patterns according to which the stones to be placed next were hewn. It was this sheet and this mode of proceeding which was called the Lesbian canon or rule, while the canon or rule which the architect laid down alike for all stones of an intended wall was called a general canon. See On the Cyclopean Walls, by Forchhammer, Kiel, 1847. Now, Aristotle compares the general law, the nomos, to the general canon, but the particular law, the psephisma, ought, as he says, to be made by the Lesbian canon. Ethica ad Nicomachum, 5, 14. It is inelegant, I readily confess, to use a figure which it is necessary to explain, but I am not acquainted with any process in modern arts similar to the one used as an illustration by the great philosopher, except the forming of the dentist's gold plate according to a mould taken from nature itself. I naturally preferred the simile of the philosopher, even with an explanatory note, to the unbidden associations which the other simile carries along with it. Nor would I withhold from my reader the pleasure we enjoy when a figure or simile is presented to us so closely fitting the thought, like the Lesbian canon, and so exact that itself amounts to the enunciation of an important truth, well formulated. This is the case with Aristotle's figure.

[1.]In my Political Ethics, first published in 1838.

[2.]I do not know that this opinion was ever more strikingly symbolized than lately, when Lord John Russell, the leader of the administration in the commons, moved an address of congratulation to the queen on the birth of a prince, and Mr. Disraeli, the leader of the opposition in the same branch, seconded the motion, while a similar motion was made in the lords by Lord Aberdeen, the premier of the administration, seconded by the Earl of Derby, the premier of the lately ousted administration, and very bitter opponent to the present ministry. What the queen is, in this respect, in England, the constitution, or rather the Union, is in the United States. Our feelings of loyally centre in these, but not in our president, any more than an Englishman's loyalty finds a symbol in his prime minister.

[1.]Mr. Emil Giraidin, who has been referred to several times. He is an unreserved writer, who knows how to express his ideas distinctly, and who is a representative of very large numbers of his countrymen. In connection with the expression of Mr Girardin given in the text, the dictum of the Emperor Napoleon III. about the time of his elevation to the throne, may be given. He said: In crowning me, France crowns herself. The reader will find at the end of this work a similar expression of the emperor, when he opened the restored Louvre, namely, that France, in building palaces for her kings, built them to honor herself and to symbolize her unity. Unfortunately, Louis XIV. sorely repented on his death-bed his passion for building, and expressed it in warning counsel to Louis XV.

[1.]Lord Brougham, in his Political Philosophy, speaks in terms of high praise of the elective government of the former Germanic empire. Native and contemporary writers have not done so. It was only after the expulsion of the French, and when the German people instinctively longed for German unity and dignity, that, at one time, a poetic longing for the return of the medieval empire was expressed by some. If there be any German left who still desires a return to the elective empire, he must be of a very retrospective character.