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 xxxi.

insecurity op uninstitutional governments.—unorganized inarticulated popular power.

The insecurity of concentrated governments has been discussed in a previous part of this work. The same insecurity exists in all governments that are not of a strongly institutional character. Eastern despotism is exposed to the danger of seraglio conspiracies, as much so as the centralized governments of the European continent showed their insecurity in the year 1848. They tottered, and many broke to pieces, although there was, with very few exceptions, no ardent struggle, and nothing that approached to a civil war. To an observer at a distance, it almost appeared as if those governments could be shaken by the loud huzzaing of a crowd. They have, indeed, recovered; but this may be for a time only; nor will it be denied that the lesson, even as it stands, is a pregnant one.

During all that time of angry turmoil, England and the United States stood firm. The government of the latter country was exposed to rude shocks, indeed, at the same period; but her institutional character protected her. England has had her revolution; every monarchy probably must pass through such a period of violent change ere civil liberty can be largely established and consciously enjoyed by the people—ere government and people fairly understand one another on the common ground of liberty and self-government. But no fact seems to be so striking in the revolution of England as this, that all her institutions of an organic character, her jury, her common law, her representative legislature, her local self-government, her justice of the peace, her sheriff, her coroner—all survived domestic war and despotism, and, having done so, served as the basis of an enlarged liberty. The reason of this broad fact cannot be that the English revolution did not occur at a time of bold philosophical speculation which characterized the age of the French revolution. The English religionists of the seventeenth century were as bold speculative reasoners as the French philosophers, and England's religious fanatics were quite as fierce enemies of private property and society as the French political fanatics were. It was, in my opinion, pre-eminently her institutional character in general, or the whole system of institutions and the degree of self-government contained in each, that saved each single institution, and enabled England to weather the storm when she was exposed to the additional great danger of a worthless general government after the restoration. There is a tenacity of life and a reproductive principle of vitality exhibited in the whole seventeenth century of British history, that cannot be too attentively examined by the candid statesmen of our family of nations.

It may be objected to my remarks that Russia, too, has remained untouched by the attempted revolutions of the year 1848, although her government is a very centralized one. Russia has in some respects much of an Asiatic character, and the succession of her monarchs is marked by an almost equal number of palace conspiracies and imperial murders or imprisonments.1 The people, on the other hand, have not yet been affected by the political movements of our race. There is in politics, as in all spheres of humanity, such a thing as being below and being above an evil. Many persons that are free from skepticism are not above it, but the dangerous questions have never yet presented themselves; and many nations remain quiet while others are torn by civil wars, not because they have reached a settled state above revolution, but because they have not yet arrived at the period of contending elements.

Russia may be said, in one respect at least, to furnish us with the extreme opposite to self-government. “The service,” that is, public service, or the being a servant of the imperial government, has been raised in that country to a real culte, a sort of official religion. Any infraction of justice, any hardship, any complaint, is passed over with a shrug of the shoulder and the words “the service.” The term Service in its present Russian adaptation is the symbol for the most consistent absolutism, the most passive bureaucracy, and a most automaton-like government set in motion by the czar, and it is thus, as it was said before, the extreme opposite to our self-government.

If concentrated governments are insecure, mere unorganized and uninstitutional popular power is no less so, and neither such power nor mere popular opposition to all government is a guarantee of liberty. The first may be the reason why all the Athenian political philosophers of mark looked from their own state of things, during and after the Peloponnesian war, with evident favor upon the Lacedæmonian government Lacedæmon was, indeed, no home for individual liberty; but they saw in Sparta permanent institutions, and, without having arrived at a perfectly clear distinction between an institutional government and one of a fluctuating absolute market majority, they may have perceived, more or less instinctively, that neither permanency nor safety is possible without an institutional system. They must have observed that there was no individual liberty in Sparta; but her institutional character may have struck them, and the contrast may have lent to that government the appearance of substantial value which it did not possess in reality. It seems otherwise difficult to explain why the most reflecting should have preferred a Lacedæmon to an Athens, even if we take into account the general view of the ancients, that individuality must be sacrificed to the state—a view of which I have spoken at the beginning of this work.

As to the second position, that the guarantee of liberty cannot be sought for in mere opposition to government or in a mere negation of power, it is only necessary to reflect that in such a state of things one of three evils must necessarily happen. Either the people are united and succeed in enfeebling or destroying the government, in which case again the new government possesses the whole sweeping power, and of course is in turn a negation of liberty; thus substituting absolutism for absolutism. Or the people are not united, do not succeed, and leave the government more powerful and despotic than before. Or a state of affairs is brought about in which all power is destroyed—political asthenia. It is a state of political disintegration, leading necessarily to general ruin, and preparing the way for a new, generally a foreign, power, which then rears something fresh upon the ruins of the past-fabrics that are cemented with blood and tears.

There is no other way to escape from the appalling dilemma than to unite the people and government into one living organism; and this can only be done by a widely-ramified system of sound institutions, instinct with self-government.

It is not maintained that history does not furnish us with instances of national conditions in which nothing else remained possible but a general rising against a government that had become isolated from the people; but nothing is gained if the new state of things is not founded upon institutions. This is, indeed, a difficult task; at times it would seem impossible. If so, the destruction of the whole is decreed; and its accomplishment adds another lesson to the many stored up in the book of history, that those nations who neglect to provide for institutions, and to allow them freely to grow, are walking the path of political ruin.

We are now fully able to judge how utterly mistaken those are who endeavor to press the opinion upon the people that “there are but two principles between which civilized men have to choose—Divine Right and Democratic Might.” The one is as ungodly as the other. Neither is founded in justice; neither admits of liberty; both rest on the principle of absolutism. Both are theories fabricated by despotism, false in logic, unhallowed in practice, and ruinous in their progress.

Allusion has been made before to the common mistake of those men who are not bred in civil liberty, and are unacquainted with the appliances of self-government, that they believe that popular power alone, uniform, sweeping, and inorganic, constitutes liberty, or is all that is necessary to insure it. It is doubtless this kind of popular power which is generally called democracy in France and other countries of the continent. It confounds, as we have seen, things entirely distinct in their nature. Power is not liberty. Power is necessary for protection, and liberty consists in a great measure in the protection of certain rights and certain institutions; nevertheless, power is not liberty, and because it is power it requires limitation, or, as I have stated, it is necessary to prevent the generation of dangerous power. Of all power, however, popular power, if by this term we designate the uninstitutional sway of the multitude, is at once the most direct, because not borrowed nor theoretical, and the most deceptive, because in reality it is necessarily led or handled by a few or by one. The ancients knew this perfectly well, and repeatedly treated of the fact; but it is not essential that the agora, the bodily assembled multitude, have unlimited and uninstitutional power. The same defects exist and the same results are produced where, so to speak, the market extends over a whole country, and where all liberty is believed to consist in one solitary formula—universal suffrage. Many effects of the latter are, indeed, more serious.1

No evolution of public opinion, no debate, no gradual formation, takes place. Some few prepare the measures, and Yes or No is all that can be asked or voted.

Whenever we speak of the power of the people, in an unorganized state, we cannot mean anything else but the power of the majority; and where liberty is believed to consist in the unlimited power of the people, the inevitable practical result is neither more nor less than the absolutism of the majority and the total want of protection of the minority.

As, however, this uninstitutional multitude has no organism, it is, as I have stated, necessarily led by a few or one, and thus we meet in history with the invariable result, that virtually one man rules where absolute power of the people is believed to exist. After a short interval, that one person openly assumes all power, sometimes observing certain forms by which the power of the people is believed to be transferred to him. The people have already been familiar with the idea of absolutism—they have been accustomed to believe that, wherever the public power resides, it is absolute and complete, so that it does not appear strange to them that the new monarch should possess the unlimited power which actually resided in the people or was considered to have belonged to them. There is but one step from the “peuple tout-puissant,” if indeed it amounts to a step, to an emperor tout-puissant.1

It is a notable fact, which, so far as I know history, has no important exception, that in all times of civil commotion in which two vast parties are arrayed against each other, the anti-institutional masses, which are erroneously yet generally called the people, are monarchical, or in favor of trusting power into the hands of one man. All dictators have become such by popular power, if the commotion tended to a general change of government. It was the case in Rome when Cæsar ruled. The party in the Netherlands which clamored for the return of the Stadtholder against that great citizen De Witt, and was bent on giving the largest extent of hereditary power to the house of Orange, was the popular party. Cromwell was mainly supported by the anti-institutional army and its adherents. We may go farther. The rise, of the modern principate, that is, the vast increase of the power of the prince and the breaking down of the baronial power, was everywhere effected by the help of the people. We have not here to inquire, whether in many of these struggles the people did not consciously or instinctively support the prince or leader against his opponents, because the ancient institutions had become oppressive. At present, it is the fact alone which we have to consider.

Probably it was this fact, together with some other reasons, which caused Mr. Proudhon, the socialist, to utter the remarkable sentence that “no one is less democratic than the people.”

The fact is certain that, merely because supreme power has been given by the people, or is pretended to have been conferred by the people, liberty is far from being insured. On the contrary, inasmuch as this theory rests on the theory of popular absolutism, it is invariably hostile to liberty, and, generally, forms the foundation of the most stringent and odious despotism. To use the words of Burke: “Law and arbitrary power are in eternal enmity…. It is a contradiction in terms; it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power… We may bite our chains if we will; but we shall be made to know ourselves and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God.”1

I add the words of one still greater, the elder Pitt, and be it remembered that he uttered them when he was an old man.

“Power,” said he, “without right is the most detestable object that can be offered to the human imagination; it is not only pernicious to those whom it subjects, but works its own destruction. Res detestabilis et caduca. Under the pretence of declaring law, the commons have made a law, a law for their own case, and have united in the same persons the offices of legislator, and party, and judge.”1 Frederic the Great of Prussia perceived this clearly, for he said “he could very well understand how one man might feel a desire to make his will the law of others, but why thirty thousand or thirty millions should submit to it he could not understand.” This is the saying of a monarch who probably knew or suspected as little of an institutional self-government as any one, and who continually complained of the power of parliament in changing ministers, when England was his ally.2 But was he sincere when he wrote those words? Was he still in his period of philosophic sentiment? Did he really not see why this apparent transfer of power so often happens, or did he utter them merely as something piquant?

By whatever process this vast popular power is transferred or pretended to be transferred—for we must needs always add this qualification—is of no manner of importance with reference to liberty. Immolation brings death, though it should be self-immolation; and of the two species of political slavery, that is probably the worst which boasts of having originated from free self-submission, such as Hobbes believed to have been the origin of all monarchy, and of which recent history has furnished an apparent frightful instance.

Nothing is easier than to show to an American or English reader that the origin of power has of itself no necessary connection with liberty. What American would believe that a particle of liberty were left him, if his country were denuded of every institution, federal or in the states, except of the president of the whole, though he alone were left to be elected every four years by the sweeping majority of the entire country, from New York to San Francisco? Or what Englishman would continue to boast of self-government, if a civil hurricane were to sweep from his country every institution, common law and all, except parliament, as an “omnipotent” body indeed?

The opposite of what we have called institutional self-government is that liberty which Rousseau conceived of, when, in his Social Contract, he not only assigns all power to the majority, and almost teaches what might be called a divine right of the majority, but declares himself against all division. He shows a bitter animosity to the representative system. He seeks, unconsciously to himself, for a legitimate source of public force, when he thinks he lays a foundation for liberty. In this he may be said to be original, at least in the idea of the permanent action of the social contract, or of the sovereignty not only residing in the people, but continuing to act directly and without checking institutions. For the rest, he only carried out the old French idea of unity of power, of centralization, which appeared to the French, long before him, the summum bonum—not only in politics, but in all other spheres. The works of the great Bossuet show this pervading idea, in the sphere of theology; and numerous proofs have been given in the course of this work, that the principle of uncompromising unity was distinctly acknowledged and almost idolized by nearly all the leading statesmen of France from Richelieu, through the first revolution, and continues to be so down to the present day.1 No one can understand the history of France who does not remember the ardor for uninstitutional unity of power, and what is intimately connected with it, the idea that this all-pervading and uncompromising power must do and provide for everything—the extinction of self-reliance. The socialists do not differ from the imperialists; on the contrary, society is with them a unit in which the individual is lost sight of, even in marriage and property.

Rousseau insists upon an inarticulated, unorganized, uninstitutional majority. It is a view which is shared by many millions of people on the European continent, and has deeply affected all the late and unsuccessful attempts at conquering liberty. Rousseau wrote in a captivating style, and almost always plausibly, very rarely profoundly, often with impassioned fervor. Plausibility, however, generally indicates a fallacy, in all the higher spheres of thought and action; still it is that which is popular with those who have had no experience to guide them; and since the theory of Rousseau has had so decided an influence in France, and since no one can understand the recent history of our race without having studied the Social Contract,1 that theory, for the sake of brevity, may be called Rousseauism.

We return once more to that despotism which is founded upon pre-existing popular absolutism. The processes by which the transition is effected are various. The appointment may deceptively remain in the hands of the majority, as was the case when the president of the French republic was apparently elected for ten years, after the second of December; or the prætorians may appoint the Cæsar; or there may be apparent or real acclamation for real or pretended services; or the emperor may be appointed by auction, as in the case of the emperor Didius; or the process may be a mixed one. The process is of no importance; the facts are simply these—the power thus acquired is despotic, and hostile to self-government; the power is claimed on the ground of absolute popular power; and it becomes the more uncompromising because it is claimed on the ground of popular power.

[1.]A London journal said some years ago, with great bitterness, yet with truth; A Russian czar is a highly assassinative substance.

[1.]Nowhere, I believe, can the views of a large class of Frenchmen on this subject be found more distinctly enounced than in the different works of Mr. Louis Blanc. They are many, and, in my opinion, as may be supposed, often very visionary; but Mr. Blanc is the spirited representative of that French school Which believes that liberty is power, that the owners are the people, that wealth consists in the largest possible amount of currency, and money is a deception, and that communism is the most perfect political phase of humanity.

[1.]This, it will be observed, is very different from the English maxim, the parliament is omnipotent. Unguarded and extravagant as it is, it only weans that parliament has the supreme power. But parliament itself is a vast institution, and part and parcel of a still vaster institutional system, which is pervaded by the principle of self-government. Parliament has often found that it is not omnipotent when it has attempted to break a lance with the common law. It is as unguarded a maxim as that the king can do no wrong, which is true only in a limiting sense, namely, that because he can do no wrong, some one else must be answerable for every act of his. Besides, there is the marginal note of James II. appended to this maxim, which never has been understood to mean what the ancient French maxim meant: In the presence of the king, the laws are silent; or what was meant by the famous “bed of justice,” namely, that the personal presence of the monarch silenced all opposition, and was sufficient to ordain anything he pleased.

[1.]Mr. Burke, in 1788.

[1.]He spoke of Wilkes's expulsion.

[2.]Raumer gives the dispatches from Mitchell, the English minister near the court of Frederic. The minister reports many complaints of the king, of this sort. But Frederic is not the only one who thus complained. General Walsh, that native Frenchman, who became minister of Spain, did the same. See Coxe's Memoirs, mentioned before. So when Russian statesmen desire to show the superiority of their government, they never fail to dwell on the low position of an English minister, inasmuch as he depends upon a parliamentary majority, or, as an English minister expressed it, must be the minister of public opinion. See Mr. Urquhart's Collection. I believe it will always be found that, where absolute governments come in contact with those of freemen the former complain of the instability of the latter. They consider a change of ministry a revolution

[1.]One of the past statesmen of France, and renowned as a publicist, said to me, in 1851, when we discoursed on the remarkable extinction of former French royalty: “There is but one thing to which all Frenchmen cling with enthusiasm, almost with fanaticism, and that is absolute unity.” Those statesmen who have not unconditionally joined this sentiment, such as Mr. Guizot, are considered unnational.

[1.]The Contrat Social was the bible of the most advanced convention men. Robespierre read it daily, and the influence of that book can be traced throughout the revolution. Its ideas, its simplicity, and its sentimentality had all their effects. Indeed, we may say that two books had a peculiar influence in the French, revolution, Rousseau's Social Contract and Plutarch's Lives, however signally they differ in character. The translation of Plutarch by Amyot in the sixteenth century—it was the period of Les Cents Contre Un—and subsequent ones, had a great effect upon the ideas of a certain class of reflecting Frenchmen. We can trace this down to the revolution, and during this struggle we find with a number of the leading men a turn of ideas, a conception of republicanism formed upon their view of antiquity, and a stoicism, which may be fitly called Plutarchism. It is an element in that great event. It showed itself especially with the Brissotists, the Girondists, and noble Charlotte Corday was imbued with it. A very instructive paper might be written on the influence of Plutarch on the political sentiment of the French ever since that first translation.