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 xxx.

institutional government the only government which prevents the growth of too much power.—liberty, wealth, and longevity of states.

Universal suffrage is power—sweeping, real power—so vast, that even its semblance bears down everything before it. Uninstitutional universal suffrage may be fittingly said to turn the whole popular power and national sovereignty—the self-sufficient source of all derivative power—into an executive, and thus fearfully to confound sovereignty with absolute power, absolutism with liberty.

Yet the idea of all government implies power, while that of liberty implies check and protection. It is the necessary harmony between these two requisites of all public vitality and civil progress which constitutes the difficulty of establishing and maintaining liberty—a difficulty far greater than that which a master mind has declared the greatest, namely, the founding of a new government.1

Power is necessary; an executive cannot be dispensed with; yet all power has a tendency to increase, and to clear away opposition. It would not be power if it had not this tendency. How then is liberty to be preserved? A new power may be created to check the first, like the Roman tribune; but the newly-created power is power, and how is this in turn to be checked? Erecting one tier of power over the other affords no remedy. The chief power may thus be made to change its name or place; but the power, with all its attributes, is there.

Nor will it be supposed that salvation can be found in the mere veto, however multiplied. For the veto, although appearing negative with reference to that which is vetoed, nevertheless is power in itself, and to rest civil liberty upon a system of mere vetoes would indeed be expecting life, action, growth, and that which is positive, from a system of negativism. A government without power and inherent strength is, like aught else without power, useless for action. Yet action is the object of all government. The single Polish nobleman who possessed the rakosh or veto had a very positive but a very injurious power. It was the pervading idea, in the middle ages, to protect by the requisition of unanimity of votes on all important questions. But, on the one hand, this is the principle which belonged to the disjunctive state of the middle ages, not to our broad national liberty; and, on the other hand, unanimity does not of itself insure protection or liberty. Tyranny or corruption has often been unanimous.

The only way of meeting the difficulty is to prevent the overbearing growth of any power. When grown, it is too late; and this cannot be done by putting class against class, or interest against interest. One of these must be stronger than the other, and become the absorbing one. Nor is the problem we have to solve, discord. It is harmony, peace, united yet organic action. History or speculation points to no other solution of this high problem of man, than a well-grounded and ramified system of institutions, checking and modifying one another, strong and self-ruling, with a power limited by the very principle of self-government within each, yet all united and working toward one common end, thus producing a general government of a co-operative character, and serving, in many cases in which, without institutions, interests would jar with interests, as friction-rollers do in machinery.

The institution is strong within its bounds, yet not feared, because necessarily bounded in its action. What can be more powerful than the king's bench in England, in each case in which it acts within its own limits? Now older than five hundred years, it has repeatedly stood up against parliament with success. Yet no one fears that its power will invade that of other institutions; nor did the people of the state of New York apprehend that the court of appeals might become an invasive power, when in its own legitimate and efficient way it lately declared the Canal Enlargement Law, which had been passed by a great majority, unconstitutional, and consequently null and void.

Seeking for liberty merely or chiefly in a vetitive power of each class or circle, interest or corporation, upon the rest, as has been often proposed, after each modern revolution,1 would simply amount to dismembering, instead of constructing. It would produce a multitudinous antagonism, instead of a vital organism, and it would be falling back into the medieval state of narrow chartered independencies. We cannot hope for liberty in a pervading negation, but must find it in comprehensive action. All that is good or great is creative and positive. Negation cannot stand for itself, or impart life. But that negation which is necessary to check and refrain is found in the self-government of many and vigorous institutions, as they also are the only efficient preventives of the undue growth of power. If they are not always able to hinder it, man has no better preventive. When in the seventeenth century the Danes threw themselves into the power of the king, making him absolute, in order to protect themselves against baronial oppression, they necessarily created a power which in turn became oppressive. The English, on the contrary, broke the power of their barons, not by raising the king, but by increasing self-government.

We find, among the characteristic distinctions between modern history and ancient,1 the longevity of modern states, contemporaneous progress of wealth or culture and civil liberty, and the national state as contradistinguished from the ancient city-state, the only state of antiquity in which liberty existed. These are not merely facts which happen to present themselves to the historian, but they are conditions upon which it is the modern problem to develop liberty, because they are requisites for modern civilization, and civilization is the comprehensive aim of all humanity.

We must have national states (and not city-states;) we must have national broadcast liberty (and not narrow chartered liberty;) we must have increasing wealth, for civilization is expensive; we must have liberty, and our states must endure long, to perform their great duties. All this can be effected by institutional liberty alone. It is neither affirmed that longevity alone is the object, nor that it can be obtained by institutions alone. Russia, peculiarly uninstitutional, because it unites Asiatic despotism with European bureaucracy, has lasted through long periods, even though we may consider the late celebration of its millennial existence as a great official license. All we maintain here is, that longevity, together with progressive liberty, is obtainable only by institutional liberty. England, now really a thousand years old, presents the great spectacle of an old nation advancing steadily in wealth and liberty. She is far richer than she was a century ago, and her government is of a far more popular cast. In ancient times, it was adopted as an axiom that liberty and wealth are incompatible. Modern writers, down to a very recent period, have followed the ancients. Declaimers frequently do so to this day; but they show that they do not comprehend modern liberty and civilization. Modern in-door civilization, with all her schools and charities and comforts of the masses, is incalculably dearer than ancient out-door civilization. Modern civilization requires immense production; it is highly expensive. Yet our liberty needs civilization as a basis and a prop; our progressive liberty requires progressive civilization, consequently progressive wealth—not, indeed, enormous riches in the hands of a few. Asia possesses to this day hoarded treasures in greater number than modern Europe has ever known them.1 We stand in need of immeasurable wealth, but it is diffused, widely-spread and widely-enjoyed wealth, necessary for widely-diffused and widely-enjoyed culture.

To last long—to last with liberty and wealth—is the great problem to be solved by a modern state. Our destinies differ from that of brief and brilliant Greece. Let us derive all the benefit from Grecian culture and civilization—from that chosen nation, whose intellectuality and aesthetics, with Christian morality, Roman legality, and Teutonic individuality and independence, form the main elements of the great phenomenon we designate by the term modern civilization, without adopting her evils and errors, even as we adopt her sculpture without that religion whose very errors contributed to pro duce it.

[1.]Machiavelli—tanto nomini nullum par elogium—says in his Prince, “But in the new government lies the greatest difficulty.” This depends upon circumstances. He undoubtedly had in mind the difficulty of uniting Italy, or rather of eliminating so many governments and establishing one Italian state. For there has been no noble Italian, since the times when Dante called his own Italy, Di dolor ostello, that does not yearn for the union of his noble land, and look for the realization of his hopes as fervently as he believes in a God. Machiavelli was one of the foremost among these true Italians. But he had not lived through our times. There are times when the people throw themselves into the arms of any one that possibly may save them from impending or imaginary shipwreck, or promises to do so. Wearied people will take a stone for a pillow, and no persons deceive themselves so readily as the panic-stricken. On such occasions it is easy to establish a new government, especially if cumbersome conscience is set aside. The reverse of Machiavelli's dictum then takes place, and the greatest difficulty lies in maintaining a government. This applies even to administrations and ministries. All is pleasant sailing at first. A new power charms like a rising sun; but the heat of noon follows upon the morning.

[1.]Harris, in his Oceana, St. Just, in the first French revolution, and many former and recent writers, might be mentioned.

[1.]These differences between antiquity and modern times, all of which are more or less connected with Christianity and the institution, are:

1. That in antiquity only one nation flourished at a time. The course of history, therefore, flows in a narrow channel, and the historian can easily arrange universal ancient history. In modern periods, many nations flourish at the same time, and their history resembles the broad Atlantic, on which they all freely meet.

2. Ancient states are short-lived; modern states have a far greater tenacity of life.

3. Ancient states, when once declining, were irretrievably lost. Their history is that of a rising curve, with its maximum and declension. Modern states have frequently shown a recuperative power. Compare present England with that of Charles II., France as it is with the times of Louis XV.

4. Ancient liberty and wealth were incompatible, at least for any length of time; modern nations may grow freer while they are growing wealthy.

5. Ancient liberty dwelt in city-states only; modern liberty requires enlarged societies—nations.

6. Ancient liberty demanded disregard of individual liberty; modern liberty is founded upon it.

7. The ancients had no international law. (Nor have the Asiatics now. The incipiency of international law is, indeed, visible with all tribes, for they are men. The Romans sent heralds to declare war, and the Greek, advised to poison his arrows, declines doing so, “for,” Homer makes him say, “I fear the gods will punish me.”)

[1.]Indeed, the enormous treasures occasionally met with in Asia are indications of her comparative poverty.