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 xxxii.

imperatorial sovereignty.

The Cæsars of the first centuries claimed their power as bestowed upon them by the people, and went even so far as to assume the praetorians, with an accommodating and intimidated senate, as the representatives, for the time, of the people. The Cæsars never rested their power upon divine right, nor did they boldly adopt the Asiatic principle in all its nakedness, that power—the sword, the bow-string, the mere possession of power—is the only foundation of the right to wield it. The majestas populi had been transferred to the emperor.1 Such was their theory. Julius, the first of the Cæsars, made himself sole ruler by the popular element, against the institutions of the country.

If it be observed here that these institutions had become effete, that the Roman city-government was impracticable for an extensive empire, and that the civil wars had proved how incompatible the institutions of Rome had become with the actual state of the people, it will be allowed—not to consider the common fact that governments or leaders first do everything to corrupt the people or plunge them into civil wars, and then, “taking advantage of their own wrong,” use the corruption and bloodshed as a proof of the necessity to upset the government1 —it will be allowed, I say, that at any rate Cæsar did not establish liberty, or claim to be the leader of a free state, and that he made his appearance at the close of a long period of freedom, marking the beginning of the most fearful decadence which stands on record; and that, unfortunately, the rulers vested with this imperatorial sovereignty2 never prepare a better state of things with reference to civil dignity and healthful self-government. They may establish peace and police; they may silence civil war, but they also destroy those germs from which liberty might sprout forth at a future period. However long Napoleon I. might have reigned, his whole path must have led him farther astray from that of an Alfred, who allowed self-government to take root, and respected it where he found it. We can never arrive at the top of a steeple by descending deeper into a pit.

Whatever Cæsar's greatness may have been, he did net, at any rate, usher in a new and prosperous era, either of liberty or popular grandeur. What is the Roman empire after Cæsar? Count the good rulers, and weigh them against the unutterable wretchedness resulting from the worst of all combinations—of lust of power, voluptuousness, avarice, and cruelty—and forming a stream of increasing demoralization, which gradually swept down in its course everything noble that had remained of better times.

The Roman empire did, undoubtedly, much good, by spreading institutions which adhered to it in spite of itself, as seeds adhere to birds and are carried to great distances; but it did this in spite, and not in consequence, of the imperatorial sovereignty.

How, in view of all these facts of Roman history and of Napoleon I., the French have been able once more boastfully to return to the forms and principles of imperatorial sovereignty, and once more to confound an apparently voluntary divestment of all freedom with liberty, is difficult to be understood by any one who is accustomed to self-government. Whatever allowance we may make on the ground of vanity, both because it may please the ignorant to be called upon to vote yes or no regarding an imperial crown, and because it may please them more to have an imperial government than one that has no such sounding name; whatever may be ascribed to military recollections—and, unfortunately, in history people only see prominent facts, as at a distance we see only the steeples of a town, and not the dark lanes and crowding misery which may be around them; whatever allowance may be made, and however well we may know that the whole could never have been effected without a wide-spread centralized government and an enormous army1 —it still remains surprising to us that the French, or at least those who now govern, please themselves in the imperatorial forms of Rome, and in presenting popular absolutism as a desirable phase of democracy. As though Tacitus had written like a contented man, and not with despair in his breast, breathed into many lines of his melancholy annals!

Yet so it is. Mr. Troplong, now president of the senate, said on a solemn occasion, after the sanguinary second of December, when he was descanting on the services rendered by Louis Napoleon: “The Roman democracy conquered in Cæsar and in Augustus the era of its tardy avénement.”1 If imperatorial sovereignty were to be the lasting destiny of France, and not a phase, French history would consist of a long royal absolutism; a short struggle for liberty, with the long fag-end of Roman history—the avénement of democracy in its own destroyer, the imperatorial sovereignty, but without the long period of Roman republicanism.

The same gentleman drew up the report of the senatorial committee to which had been referred the subject, whether the people should be called upon to vote Yes or No on the question: Shall the republic be changed into an empire? This extraordinary report possesses historical importance, because it is a document containing the opinion of such a body as the French senate, and the political creed of the ruling party. I shall give it, therefore, a place in the Appendix. It contains the same views mentioned above, but spread over a considerable space, occasionally with surprising untenableness and inconsistency.

So little, indeed, has imperatorial sovereignty to do with liberty, that we find even the earliest Asiatics ascribing the origin of their despotic power to unanimous election. I do not allude only to the case of Deioces, related by Herodotus, but to the mythological books of Asiatic nations. The following extract from the Mongolian cosmogony, whose mythos extends over a vast part of the East, is so curious and so striking an instance of “the avénement of democracy”—though not a tardy one-and so clear a conception of imperatorial sovereignty without a suspicion of liberty, as a matter of course, since the whole refers to Asia, that the reader will not be dissatisfied with the extract.

“At this time (that is, after evil had made its appearance on earth) a living being appeared, of great beauty and excellent aspect, and of a candid and honest soul and clear intellect. This being confirmed the righteous possessors in their property, and obliged the unrighteous possessors to give up what they had unjustly acquired. Thereupon the fields were distributed according to equal measure, and to every one was done even justice. Then all elected him for their chief, and yielded allegiance to him with these words: We elect thee for our chief, and we will never trespass thy ordinances. On account of this unanimous election, he is called in the Indian language Ma-ha-Ssamati-Radsha; in Thibetian, Mangboi-b Kurbai-r Gjabbo; and in Mongolian, Olana-ergukdeksen Chagran (the many-elected Monarch.)”1

“In the name of the people,” are the words with which commenced the first decree of Louis Napoleon, issued after the second of December, when he had made himself master of France, and in which he called upon all the French to state whether he should have unlimited power for ten years. If it was not their will, the decree said, there was no necessity of violence, for in that case he would resign his power. This was naive. But theories or words proclaimed before the full assumption of imperatorial sovereignty are of as little importance as after it. Where liberty is not a fact and a daily recurring reality, it is not liberty. The word Libertas occurs frequently on the coins of Nero, and still more often the sentimental words, Fides Mutua, Liberalitas Augusta, Felicitas Publica.

Why, it may still be asked, did the Cæsars recur to the people as the source of their power, and why did the civilians say that the emperor was legislator, and power-holder, inasmuch as the majestas of the Roman people, who had been legislators and power-holders, had been conferred upon him? Because, partly, the first Cæsars, at any rate the very first, had actually ascended the steps of power with the assistance of some popular element, cheered on somewhat like a diademed tribune; because there was and still is no other actual source of power imaginable than the people, whether they positively give it, or merely acquiesce1 in the imperatorial power, and because, as to the historical fact by which power in any given case is acquired, we must never forget that the ethical element and that of intellectual consistency are so inbred in man that, wherever humanity is developed, a constant desire is observable to make actions, however immoral or inconsistent, at least theoretically agree with them. No proclamation of war has ever avowed, I believe, that war was simply undertaken because he who issued the proclamation had the power and meant to use it fas aut nefas.1 Even Attila called himself the scourge of God.

No matter what the violence of facts has been, however rudely the shocks of events have succeeded one another, the first thing that men do after these events have taken place is invariably to bring them into some theoretical consistency, and to attempt to give some reasonable account of them. This is the intellectual demand ever active in man. The other, equally active, is the ethical demand. No man, though he commanded innumerable legions, could stand up before a people and say: “I owe my crown to the murder of my mother, to the madness of the people, or to slavish place-men.” To appear merely respectable in an intellectual and ethical point of view, requires some theoretical decorum. The purer the generally acknowledged code of morality or the prevailing religion is, or the higher the general mental system which prevails at the time, the more assiduous are also those who lead the public events, to establish, however hypocritically, this apparent agreement between their acts and theory, as well as morals. It is a tribute, though impure, paid to truth and morality.

[1.]The idea of the populus vanished only at a late period from the Roman mind; that of liberty had passed away long before. Fronto, in a letter to Marcus Aurelius, (when the prince was Cæsar,) mentions the applause which he had received from the audience for some oration which he had delivered, and then continues thus: “Quorsum hoc retuli? uti te, Domine, ita compares, ubi quid in cœtu hominum recitabis, ut scias auribus serviendum: plane non ubique et omni modo, attamen nonnunquam et aliquando. Quod ubi facies, simile facere te reputato, atque illud facitis, ubi eos qui bestias strenue interfecerint, populo postulante ornatis aut manumittitis, nocentes etiam hominess aut scelere damnatos, sed populo postulante conceditis. Ubique igitur populus dominatur et præapollet. Igitur ut populo gratum erit, ita facies atque ita dices.“—Epist. ad Marc. Cæs., lib. i. epist. 1.

[1.]Not unlike the conduct of the powers surrounding Poland, before they had sufficiently prepared her partition. The government of Poland was certainly a very defective one, but it was the climax of historical iniquity in Russia, Austria, and Prussia to declare, after having used every sinister means to embroil the Polish affairs and stir up faction, that the Poles were unfit to be a nation, and as neighbors too troublesome.

[2.]The idea which I have to express would have prompted me, and the Latin word Cæsareus would have authorized me, to use the term Cæsarean Sovereignty. It is unquestionably preferable to imperatorial sovereignty, except that the English term Cæsarean has acquired a peculiar and distinct meaning, which might even have suggested the idea of a mordant puri. I have, therefore, given up this term, although I had always used it in my lectures. It will be observed that I use the term sovereignty in this case with a meaning which corresponds to the sense in which the word sovereign continues to be used by many, designating a crowned ruler. I hope no reader will consider me so ignorant of history and political philosophy, as to think me capable of believing in the real sovereignty of an individual. If sovereignty means the self-sufficient primordial power of society, from which all other powers are derived—and unless it mean this we do not stand in need of the term—it is clear that no individual ever possessed or can possess it. On the other hand, it is not to be confounded with absolute power. My views on this important subject have been given at length in my Political Ethics, as I have said before.

[1.]Sec paper on Elections, in the Appendix.

[1.]A sepulchral inscription in honor of Masaniello had an allusion conceived in a similar spirit. I give it entire, as it probably will be interesting to many readers.Eulogium Thomæe Aniello de Amalfio Cetario mox Cesareo Honore conspicuo qui Oppressa patria Parthenope cum Suppressione nobilium Combustione mobilium Purgatione exulum Extinctione vectigalium Proregis injustitia Libtrata Ab his quos liberavit est peringrate occisus Ætatis suæ anno vigesimo sebtimo, imperii vero Decennio Mortuus non minus quam vivus Triumphavit Tantæ rei populus Neapolitanus tanquam immemor Posuit.

[1.]The History of the East Mongols, by Ssanang Ssetsen Changsaidshi, translated into German by I. J. Schmidt. I owe this interesting passage to my friend the Rev. Professor J. W. Miles, who directed my attention to the work.

[1.]As the words stand above, I own, they may be variously interpreted; but it would evidently lead me too far, were I to attempt a full-statement of the sense to which I take them, which indeed I have done at length in my Political Ethics.

[1.]The reader sufficiently acquainted with history will remember that the consul Manlius, when the Galatians, a people in Asia Minor, urged that they had given no offence to the Romans, answered that they were a profligate people deserving punishment, and that some of their ancestors had, centuries before, plundered the temple of Delphi. Justin, the historian, says that the Romans assisted the Acarnanians against the Ætolians because the former had joined in the Trojan war, a thousand years before. But this principle does not act, even to a degree of caricature, in politics only. What cruelties have not been committed Pro majore Dei gloria!